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Class Action Lawsuit Against Blue Shield Claims Breach Of Fiduciary Duty

Lawsuit claims breach of fiduciary duty by Blue Shield for refusal to cover artificial cervical disc replacement surgery.


Artificial cervical disc replacement surgery, a treatment for degenerative disc disease, is the subject of a federal class action lawsuit in which Blue Shield is accused of

breach of fiduciary duty. A man filed suit after being denied coverage by Blue Shield for an artificial disc replacement procedure recommended by his physician. Blue Shield classifies the procedure as investigational; the lawsuit claims the surgery has been performed effectively thousands of times.

Cervical discs are the six spinal vertebrae in the neck. Filled with a shock-absorbent gel-like substance, they help stabilize the neck and enable it to turn and bend smoothly.

As people age, the gel can deteriorate and cause nerve roots to get pinched between the vertebrae, leading to degenerative disc disease, which can occur in any or all of the 23 spinal vertebrae. Cervical disc disease causes a slew of symptoms, including neck pain and stiffness, numbness, and weakness in the shoulders, hands and arms.

Treatment usually includes taking over-the-counter pain medications and physical therapy. More difficult cases can be treated by spinal fusion, in which a piece of bone is implanted between the vertebrae to help new bone grow. But spinal fusion can reduce neck mobility and increase the risk of harming other cervical discs.

In cervical artificial disc replacement, the deteriorating disc is surgically removed and replaced by a metal disc. Artificial disc technologies have been used in Europe since the early 1990s, and have been approved in the United States for a decade.

The U.S. Food and Drug Administration has approved several types of artificial disc replacement devices, which have been used in "thousands of surgeries and have been proven to be safe and effective in the treatment of cervical disc herniation/disease," lead plaintiff Jeff Bush says in his Sept. 17 lawsuit.

Bush sued California Physicians Service dba Blue Shield of California.

After Bush hurt his neck in August 2014, an orthopedic surgeon recommended artificial disc replacement surgery rather than cervical spinal fusion. Blue Shield refused to cover the surgery, calling it investigational, "based on the lack of long term efficacy and safety in comparison to standard spinal fusion techniques," according to the complaint.

Bush says there is plenty of "valid scientific evidence" supporting the safety and efficacy of the devices. Blue Shield rejected his appeal.

Bush claims Blue Shield's refusal breaches duty as fiduciary of an ERISA health plan.

Blue Shield did not return requests for comment.

Bush seeks class certification, clarification of rights under the Blue Shield plan, damages for

breach of fiduciary duty, an injunction forcing Blue Shield to retract its categorization of artificial disc replacement as investigational, review of denied claims, and disgorgement of profits made through improperly denying claims.

Originally posted by Rebekah Kearn on CourthouseNews.com.

Breach of Fiduciary Duty Representation - Ball & Bonholtzer Trial Attorney - Los Angeles

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