Hegemann, Andrew v. Blue Cross Blue Shield of Illinois

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANDREW HEGEMANN,
Plaintiff, OPINION AND ORDER
v.
24-cv-286-wmc
BLUE CROSS BLUE SHIELD OF ILLINOIS,
Defendant.
Plaintiff Andrew Hegemann brought this lawsuit claiming that defendant Blue Cross
Blue Shield of Illinois (“BCBSIL”) wrongfully denied him benefits due under his insurance
plan. Specifically, Hegemann contends that the surgical closure of his patent foramen ovale
(“PFO”) in December 2022 was “Medically Necessary” as defined by his medical benefits plan
with defendant (the “Plan”) and, therefore, a covered procedure. Both parties have now moved
for judgment as a matter of law under Federal Rule of Civil Procedure 52(a). (Dkt. ##21 and
24). For the reasons explained below, the court will deny plaintiff’s motion, grant defendant’s
motion, and enter judgment in defendant’s favor.
FACTUAL BACKGROUND1
A. Plaintiff’s Insurance Plan
The Plan provides its members benefits for “Covered Services,” which expressly
excludes coverage for “[s]ervices that are not Medically Necessary.” (BCBSIL_000171;
1 Because this court reviews plaintiff’s claim under a de novo standard for reasons explained in the
opinion below, the court draws these undisputed facts from: the administrative record initially
reviewed by defendant for each claim (“BCBSIL” dkt. #18-1); defendant’s proposed findings of
fact and supporting declarations (dkt. #22 and 23); and the affidavits and medical evidence plaintiff
submitted in support of his motion for judgment (dkt. ##26, 27, 31, 39, and 40). See Dorris v.
Unum Life Ins. Co. of Am., 949 F.3d 297, 304 (7th Cir. 2020) (courts should “freely allow the parties
to introduce relevant extra-record evidence and seek appropriate discovery”).
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BCBSIL_108.) Under the Plan, whether a service is Medically Necessary “will be based on
generally accepted medical standards.” (BCBSIL_000059.) BCBSIL determines whether
a service is Medically Necessary based on information submitted by the insured provider
and its own policies. (BCBSIL_000219-52.)
If BCBSIL determines that the service is not Medically Necessary, it issues an
“Adverse Benefit Determination,” such as a denial of coverage. Members have the
opportunity to appeal an adverse ruling within 180 days of receiving the determination.
(BCBSIL_000143-44.) To initiate an appeal, the member must follow the procedures
delineated by the Plan, which include giving BCBSIL written notice of their intent to
appeal, or alternatively, submitting a verbal appeal. (BCBSIL_000144; BCBSIL_000179.)
In support of the appeal, a member may also present evidence, including additional medical
information, to BCBSIL. (BCBSIL_000144.) Regardless, the Plan requires the member
to exercise their right to pursue an administrative appeal from an Adverse Benefit
Determination as a precondition to filing a lawsuit. (BCBSIL_000145.)
B. Hegemann’s Treatment
In May of 2022, Hegemann suffered a stroke with an unknown cause. Over the
next six months, Hegemann worked with his medical provider Aspirus to investigate the
cause and appropriate treatment, including two echocardiograms. Initially, on June 9,
2022, Hegemann underwent an “Echo 2D Complete.” (Dkt. #27-2, at 251.) During this
exam, a “bubble study demonstrate[d] [a] right to left shunt.” (Id.) In a follow-up
appointment on November 8, 2022, Dr. Timothy Logemann noted the test’s abnormal
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bubble study and remarked that the details of “exactly how much and where [were] not
really relayed.” (Id. at 349-50.)
Based on these results and a suspicion that a PFO may have been the cause of
Hegemann’s stroke, Dr. Logemann then ordered a Transesophageal Echocardiogram
(“TEE”) (Id.), which provides the most detailed information about the anatomy and size
of a PFO. (Dkt. #39-1.) Hegemann’s TEE found a PFO with a bidirectional shunt and
no apparent atrial septal defect (“ASD”). (Dkt. #27-2, at 230.) With this additional
information, Dr. Marcus Sublette concluded that a PFO closure procedure should be done
for secondary stroke prevention. (Id. at 209.) The procedure was then performed on
December 8, 2022. Further, Hegemann was informed by Aspirus that his insurance
coverage had been pre-approved. (Hegemann Aff., dkt. #26, at ¶ 4). Unfortunately, Drs.
Logemann and Sublette acted without obtaining a guarantee of coverage under the Plan.2
C. Hegemann’s Insurance Claims
After Hegemann’s PFO closure, two separate insurance claims were submitted to
BCBSIL: (1) a claim from Aspirus Cardiology for $18,667.00 for the surgery itself (the
“Aspirus Cardiology Claim”); and (2) a claim from Aspirus for $43,896.70 for the surgical
charges, supplies, laboratory services, medical examination, medication, and use of a
recovery room (the “Aspirus Hospital Claim”). (BCBSIL_000025-32; BCBSIL_001582-
91.) BCBSIL applied its medical policy SUR707.024, “Closure Devices for Patent
2 Defendant does not deny that Hegemann was informed that his PFO closure procedure was pre-
approved, but denies that Aspirus ever initiated a pre-approval process for the surgery with BCBSIL.
Additionally, Hegemann has not attested that defendant ever represented to him that the procedure
would be covered. By accepting these facts, the court draws no conclusions as to whether Aspirus
should be estopped seeking payment from plaintiff for his procedure.
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Foramen Ovale and Atrial Septal Defects” (“BCBSIL’s PFO Closure Policy”) to determine
if Hegemann’s PFO closure was Medically Necessary. (BCBSIL_000219-52.) Under that
Policy, a PFO closure may only be considered Medically Necessary if the member meets
all of the following criteria:
a. Between 18 and 60 years of age; AND
b. Diagnosed with patent foramen ovale with a right-to-left
interatrial shunt confirmed by echocardiography with at least
one of the following characteristics:
i. PFO with large shunt, defined as >30 microbubbles
in the left atrium within three (3) cardiac cycles, after
opacification of the right atrium; OR,
ii. PFO associated with atrial septal aneurysm on
transesophageal examination: septum primum
excursion >10 mm; AND
c. Documented history of cryptogenic ischemic stroke due to a
presumed paradoxical embolism, as determined by a
neurologist and cardiologist following an evaluation to exclude
any other identifiable cause of stroke, including large vessel
atherosclerotic disease and small vessel occlusive disease; AND,
d. NONE of the following are present:
i. Uncontrolled vascular risk factors, including
uncontrolled diabetes or uncontrolled hypertension;
OR,
ii. Other sources of right-to-left shunts, including an
atrial septal defect and/or fenestrated septum; OR,
iii. Active endocarditis or other untreated infections;
OR,
iv. Inferior vena cava filter.
(BCBSIL_000219-20.)
1. The Aspirus Cardiology Claim
On December 27, 2022, BCBSIL issued an Explanation of Benefits (“EOB”)
denying coverage for the Aspirus Cardiology Claim because it needed additional
information from Aspirus before it could make a coverage determination.
(BCBSIL_000025-32.) For that reason, on December 29, 2022, BCBSIL asked Aspirus to
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provide “the patient history with previous procedures preoperative-echo report procedure
report for date of service” for December 8, 2022, the date of Hegemann’s PFO closure.
(BCBSIL_000275.) In January 2023, Aspirus sent BCBSIL Hegemann’s records generated
on the date of service, including notes that echocardiograms had been performed, but the
results were absent. (BCBSIL_000349-72.) Over the next nine months, BCBSIL made
more requests for the results of Hegemann’s echocardiogram on the date of Hegemann’s
procedure. (BCBSIL_000477; BCBSIL_000560; BCBSIL_000588.) Because BCBSIL
specifically asked for those narrow results, Aspirus’s responsive documents were limited to
those generated on the date of Hegemann’s PFO closure and did not include his June or
November echocardiogram results. (BCBSIL_000478-517; BCBSIL_000561-86;
BCBSIL_000587-612; BCBSIL_000650-707.) Moreover, having been provided no
echocardiogram results supporting Hegemann’s need for PFO closure, BCBSIL denied
Hegemann’s claim.
Hegemann received notice of this denial in June 2023. (Dkt. #18-2, at 25.) His
follow up with Aspirus also failed to resolve the dispute. (Id.) On October 10, 2023,
therefore, Hegemann contacted BCBSIL telephonically and verbally to appeal the denial
of coverage on this claim without supplying any further documents to support his appeal.
(BCBSIL_000203.) On October 20, 2023, Hegemann’s appeal was denied because a
review of his medical records failed to demonstrate that the PFO procedure was Medically
Necessary as defined by BCBSIL’s PFO Closure Policy. (Id.)
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2. The Aspirus Hospital Claim
On January 6, 2023, BCBSIL issued an EOB also denying coverage for the Aspirus
Hospital Claim because it needed additional information from Aspirus before it could make
a coverage determination. (BCBSIL_001582-91.) Like the Aspirus Cardiology Claim,
BCBSIL asked Aspirus to “provide requested records of patient history with previous
procedures and patient history and physical and pre-operative echo report . . .,” this time
providing a date “range” of 12/8/2022 - 12/8/2022. (BCBSIL_000435.) Aspirus’s
responses to BCBSIL’s initial and follow-up requests included records generated on the
requested date, but again did not include Hegemann’s earlier echocardiogram results.
(BCBSIL_000437-76; BCBSIL_000520-59; BCBSIL_000613-49; BCBSIL_000708-42.)
As a result, on December 1, 2023, BCBSIL sent Hegemann an EOB and denial
letter, explaining that the clinical documentation failed to demonstrate medical necessity
because they did not show results of an echocardiogram confirming a large volume of blood
moving from the right side of the heart to the left due to a hole in the heart.
(BCBSIL_000743-48.) This denial was confirmed in a follow-up letter sent to Hegemann
on July 9, 2024. Hegemann was also advised in both denial letters of his right to appeal
this decision.
D. Records Produced in Litigation
This lawsuit was initiated on May 1, 2024. Following an extension, BCBSIL was
granted until December 13, 2024, to file the administrative record. On December 13,
2024, Hegemann’s counsel requested permission to include additional documents to the
administrative record, indicating that some may be duplicative. The additional documents
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were extensive and included the results of Hegemann’s echocardiograms from June 9 and
November 15, 2022.
After reviewing the administrative record and Hegemann’s TEE from November 15,
2022, BCBSIL’s Medical Director, Dr. Ruby Bendersky, again concluded that Hegemann’s
results did not establish the procedure was Medically Necessary under BCBSIL’s PFO
Closure Policy. (Declaration of Ruby Bendersky, M.D., dkt. #23, at ¶¶ 5, 6, & 8.)
Plaintiff also introduced into the record three articles discussing when practitioners
should recommend PFO closure to their patients. The first article is titled “Cryptogenic
Stroke and Patent Foramen Ovale” and was published in a 2018 issue of the Journal of
American College of Cardiology (the “2018 Article”). (Dkt. #31-1.) The authors of this
article encouraged all patients who have no other likely source of a stroke, aside from a
PFO, to at least be recommended PFO closure. (Id.) The second article is titled “Guideline
Updates Needed: Closure Devices to Prevent Recurrent Stroke in Patients With Patent
Foramen Ovale” and was published in a 2024 issue of the Journal of the American Heart
Association (the “2024 Article”). (Dkt. #31-2.) The author of this article recommends
that the three, major PFO treatment guidelines (SCAI, American Academy of Neurology,
and American Heart Association Stroke Council) all be updated to reflect new, best
evidence. (Id.) The final article is titled “Patent Foramen Ovale Management for
Secondary Stroke Prevention: State-of-the-Art Appraisal of Current Evidence” and was
originally published in November 2023 in the Journal of the American Heart Association
(the “2023 Article”). (Dkt. #39-1.) The authors of this article included a “[s]uggested
diagnostic algorithm for patent foramen ovale diagnosis and patient selection for patent
foramen ovale (PFO) closure” that suggests patients who have a PFO confirmed though a
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TEE bubble study undergo PFO closure if they are in the “Possible” or “Probable” PASCAL
(PFO-associated stroke causal likelihood) classification.3 (Id.)
OPINION
Plaintiff contends that defendant wrongfully denied him coverage for his PFO
closure procedure, arguing that his echocardiograms demonstrate that the procedure was
Medically Necessary within the meaning of the Plan. Defendant argues that plaintiff is
barred from recovering for the Aspirus Hospital Claim for failure to exhaust his
administrative remedies and to meet his evidentiary burden of demonstrating his
entitlement to benefits under the Plan.
I. Exhaustion
Although ERISA does not require administrative exhaustion as a prerequisite to suit,
“[the Seventh Circuit has] interpreted ERISA as requiring exhaustion of administrative
remedies as a prerequisite to bringing suit under the statute.” Schorsch v. Reliance Standard
Life Ins. Co., 693 F.3d 734, 739 (7th Cir. 2012) (quotation omitted). However, courts may
excuse failure to exhaust administrative remedies where there is a lack of meaningful access
to review procedures, or where pursuing internal plan remedies would be futile. Id.
(quotation omitted). Here, plaintiff acknowledges his failure to appeal the denial of the
Aspirus Hospital Claim. However, he argues this failure should be excused because
3 According to the 2023 Article, an individual is classified as “Possible” if they have a “large shunt
(>20 to 30 bubbles, depending on the trial), ASA (midline or total shift), or both, [or] (2) risk of
paradoxical embolism (RoPE) score, dichotomized into 7 to 10 versus 0 to 6.” An individual is
classified as “Probable” if they have a (1) “large shunt (>20 to 30 bubbles, depending on the trial),
ASA (midline or total shift), or both, and (2) risk of paradoxical embolism (RoPE) score,
dichotomized into 7 to 10 versus 0 to 6.”
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appealing the Aspirus Hospital Claim would have been futile, especially after the Aspirus
Cardiology Claim appeal had already been denied.
For plaintiff to come within the futility exception he “must show that it is certain
that [his] claim will be denied on appeal, not merely that he doubts that an appeal will
result in a different decision.” Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.
1996) (emphasis added). Because his two claims involved the same procedure, were denied
for identical reasons, and his appeal of the first denial had already been rejected, plaintiff
argues that defendant was certain to deny any appeal of the second benefit denial.
Somewhat disingenuously, defendant disagrees, arguing that plaintiff does not fit
into this exception because his argument “is based on doubt, not certainty.” (Dkt. #37 at
5.) However, the cases cited by defendant are readily distinguishable, involving plaintiffs
who, for various reasons, either did not seek any appeal after an initial claim denial or had
advanced a second claim based on different facts. See Robyns v. Reliance Standard Life Ins.
Co., 130 F.3d 1231, 1238 (7th Cir. 1997) (“The fact that [defendant] administers both
claim denials and administrative appeals is not enough to constitute futility.”); Univ. of
Wisconsin Hosps. & Clinics Auth. v. Aetna Health & Life Ins., No. 15-CV-283-BBC, 2015 WL
5123734 (W.D. Wis. Sept. 1, 2015) (“If it is not enough to show that the same individual
or entity is making the initial decision and deciding the appeal, then a conclusory decision
is not enough either.”); Lindemann v. Mobil Oil Corp., 79 F.3d 647 (7th Cir. 1996)
(“[Plaintiff] herself argued that her wrongful termination claim was so different from [her]
benefits claim.”). In contrast, plaintiff’s hospital and cardiology claims in this case arose
from the same facts, were denied for identical reasons, and already had one appeal denied.
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Defendant also argues that futility is inapplicable in this case because plaintiff relies
on echocardiogram results that could have been included in an appeal. However, because
plaintiff followed up with Aspirus regarding the denial, prompting them to provide further
documentation to defendant ahead of his first appeal, plaintiff reasonably believed that
defendant had full access to his records and that a second appeal stemming from the same
procedure, which had already been denied, would certainly be denied. Accordingly, the
court will examine whether plaintiff was entitled to benefits on both claims.
II. Merits
In denying benefits initially, defendant did not have plaintiff’s echocardiogram
results. However, the record has now been supplemented to include these results, and
defendant admits that they should have been considered in making its initial
determinations. With new-found access to plaintiff’s echocardiogram results, the next
question is whether these results entitle plaintiff to benefits. Ordinarily, that question
would be for defendant to determine after remand for further review under its definition of
Medically Necessary. However, since the general rule that “a denial of benefits challenged
under [29 U.S.C.]
§ 1132(a)(1)(B) is to be reviewed under a de novo standard,” Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989), and both parties agree that defendant’s denial
should be reviewed de novo, the court will review the record independently to determine
whether plaintiff has demonstrated by a preponderance of the evidence that he is entitled
to benefits under the Plan. See Ruttenberg v. U.S. Life Ins. Co. in City of New York, a subsidiary
of Am. Gen. Corp., 413 F.3d 652, 663 (7th Cir. 2005) (Under de novo review, a party
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“seek[ing] to enforce benefits under the policy . . . bears the burden of proving his
entitlement to contract benefits.”); see also Stephanie C. v. Blue Cross Blue Shield of
Massachusetts HMO Blue, Inc., 852 F.3d 105, 112-13 (1st Cir. 2017) (On de novo review,
“an ERISA beneficiary who claims the wrongful denial of benefits bears the burden of
demonstrating, by a preponderance of the evidence, that [they] were in fact entitled to
coverage.”).
In determining plaintiff’s eligibility under the Plan, the court must “employ federal
common law rules of contract interpretation.” Diaz v. Prudential Ins. Co. of Am., 499 F.3d
640, 643-44 (7th Cir. 2007) (citing Life Ins. Co. of North America v. Von Valtier, 116 F.3d
279, 283 (7th Cir.1997)). Under these rules, the court will “interpret the terms of the
policy in an ordinary and popular sense, as would a person of average intelligence and
experience, and construe all plan ambiguities in favor of the insured. Plan language may
only be deemed ambiguous where it is subject to more than one reasonable interpretation.”
Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
There is no dispute that the Plan expressly excludes coverage for services that are
not Medically Necessary, nor that a decision on whether a service meets this definition is
to be based on generally accepted medical standards. (BCBSIL_000059.) Instead, the
parties’ disagreement turns on whether plaintiff’s PFO closure procedure fits within that
definition, with the burden of demonstrating entitlement to this benefit resting on plaintiff.
Ruttenberg, 413 F.3d at 663.
In support of his claim that his PFO closure procedure was based on generally
accepted medical standards, plaintiff primarily relies on the 2018, 2023, and 2024 Articles,
which generally recommend PFO closures for patients under age 60 with unexplained
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strokes. However, these articles do not provide the weight of authority or substance that
plaintiff claims. To begin, the articles only provide recommendations and suggestions for an
updated PFO closure policy, rather than purporting to articulate generally accepted medical
standards and giving them that status would exceed their self-proclaimed purpose. (Dkt.
#31-1, at 8-9 (advocating for multidisciplinary cryptogenic stroke teams to recommend PFO
closure to all patients who have a stroke from no other likely source); dkt. #31-2, at 4
(“Proposed Updated Recommendation”); dkt. #39-1 (“suggested diagnostic algorithm”)
(emphasis added)). In particular, plaintiff’s attempt to characterize the 2024 Article as an
“update” to the American Heart Association guidelines goes too far. Indeed, not only does
the 2024 Article advocate for a change to existing guidelines, but the first footnote
emphasizes that “the opinions expressed in [the] article are not necessarily those of the
editors or of the American Heart Association.” Dkt. #31-2 at 1.
Next, plaintiff fails to offer any evidence demonstrating that these articles have been
accepted into mainstream practice since being published, or even that they contradict
defendant’s PFO Closure Policy. To the contrary, it is evident from these articles that
evaluating the size of a PFO’s shunt is still important in assessing the necessity for its
closure. See dkt. #31-1, at 8 (“Enhanced reasons for PFO Closure: Large PFO”); dkt. #31-
2, at 4 (current recommendations from major guideline sources acknowledge a lower
likelihood of benefit from PFO closure for patients with a small shunt); dkt. #39-1 (making
PASCAL classification determinations based on shunt size measured by the number of
micro bubbles consistent with defendant’s PFO Closure Policy). Moreover, while plaintiff
emphasizes the 2023 Article’s assertion that “[b]ubble counts have been removed from the
inquiry because they are difficult to quantify and technically challenging” (dkt. #38, at 9),
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that same article still uses microbubble counts to measure PFO shunt sizes and associated
recurrent stroke risk. (Dkt. #39-1, at 9.)
Finally, contrary to plaintiff’s statement “that closing the hole in [his] heart would
provide up to a 90% chance to prevent further strokes” (dkt. #38, at 3), the studies
proffered by plaintiff indicate that a PFO closure would put him at a higher risk of recurrent
stroke and development of late atrial fibrillation. Specifically, while advancing the benefits
of closure for patients with a “Probable” or “Possible” PASCAL classification, the 2023
and 2024 Articles both state that an “Unlikely” PASCAL classification was associated with
a net harm from closure. (Dkt. 31-2, at 2; dkt. 39-1, at 6.) Relevant here, patients have
an Unlikely PASCAL classification unless they have a large shunt -- defined as the
appearance of more than 20 microbubbles in the left atrium within 3 cardiac cycles after
opacification of the right atrium. (Dkt. #39-1, at 2.) As for plaintiff’s two
echocardiograms, the first test found a right-to-left shunt of unknown size while the second
found a bidirectional shunt. Applying either result, plaintiff would have an Unlikely Pascall
classification, which even crediting the results of the three studies is associated with net
harm from closure, not a net benefit.
Beyond these articles, plaintiff offers two, additional facts to support his assertion
that his PFO closure was “Medically Necessary” as defined by the Plan. First, plaintiff
highlights that the procedure was recommended to him by his doctors after finding no
other likely cause for his stroke. However, the Plan states that recommendations from a
health care provider are insufficient alone to establish that a service is Medically Necessary.
Regardless, ruling out other causes of a patient’s stroke is just one of the three requirements
for coverage under defendant’s PFO Closure Policy, along with being between ages 18 and
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60 and having a PFO meeting certain metrics. Second, plaintiff suggests that his PFO
closure must have been Medically Necessary because otherwise it would violate
Wisconsin’s medical malpractice laws, which prohibit the performance of medically
unnecessary procedures. (Dkt. #38, at 1-5.) However, the issue before this court is
whether plaintiff’s procedure was Medically Necessary within the meaning of the Plan, not
whether plaintiff’s procedure was medically unnecessary in the context of Wisconsin’s
medical malpractice law.
Without further evidentiary support, the remaining question is whether a PFO
closure is Medically Necessary within the meaning of defendant’s PFO Closure Policy itself.
Specifically, that policy considers a PFO closure Medically Necessary when an
echocardiogram confirms the presence of a PFO with a large right-to-left interatrial shunt,
defined by >30 microbubbles in the left atrium within three cardiac cycles, after
opacification of the right atrium. (BCBSIL_000219-20.) Here, plaintiff had two
echocardiograms before undergoing his PFO closure. Unfortunately, neither satisfied
defendant’s PFO Closure Policy. On June 9, 2022, during his Echo 2D Complete, a bubble
study demonstrated a right-to-left shunt. However, this study did not determine the size
of the shunt -- a requirement to determine medical necessity under defendant’s PFO
Closure Policy. (Id.) On November 15, 2022, during plaintiff’s TEE, color Doppler and
bubble studies identified a PFO with a bidirectional shunt. Because this echocardiogram
revealed a bidirectional shunt, as opposed to a right-to-left shunt, it is not considered
Medically Necessary under defendant’s PFO Closure Policy.
With no echocardiograms demonstrating eligibility under defendant’s PFO Closure
Policy or evidence that the Policy itself falls outside generally accepted medical standards,
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plaintiff has not demonstrated entitlement to benefits under the plan. Accordingly, the
court must reluctantly grant defendant’s motion and deny plaintiff’s motion for summary
judgment despite what seems a draconian result should Aspirus insist on payment of a
supposedly preapproved surgery.
ORDER
IT IS ORDERED that:
1) Defendant’s motion for judgment (dkt. #21) is GRANTED.
2) Plaintiff’s motion for judgment (dkt. #24) is DENIED.
3) The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered this 9th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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