Academic journal article Defense Counsel Journal

Viagra Plaintiffs Fail to Pursue Administrative Remedies

Academic journal article Defense Counsel Journal

Viagra Plaintiffs Fail to Pursue Administrative Remedies

Article excerpt

Claims of a class of Viagra-purchasing plaintiffs fell flat because no one in the class followed through on administrative remedies before filing the ERISA-based action, the Third Circuit held in Harrow v. Prudential Insurance Co. of America, 279 F.3d 244 (2002). The court affirmed the dismissal of the claims based on a health insurer's refusal to pay for prescriptions for Viagra.

The plaintiff's husband learned from his pharmacist that his health insurance would not cover his $85.99 Viagra prescription. She phoned Prudential's claims department to inquire about coverage. He was a member of Prudential's Healthcare HMO plan. A customer service representative informed her that the insurance plan did not cover Viagra because it was a "new drug." A month later, her husband filed suit under the Employee Retirement and Income Security Act (ERISA), alleging he was improperly denied insurance benefits for the drug. The federal district court granted the insurer summary judgment. 76 F.Supp.2d 558.

Affirming, the Third Circuit held that the Harrows had failed to exhaust their administrative remedies before filing suit. The court said that the Healthcare HMO plan handbook set out a multi-step process for handling and resolving members' complaints. The grievance procedure allowed the filing of a written complaint with the company. If the insurer's initial grievance committee did not resolve the matter to the member's satisfaction, the member could file an appeal for a second level of review with the company. …

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