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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30353
Summary Calendar
GULF SOUTH MEDICAL AND SURGICAL
INSTITUTE, ET AL.,
Plaintiffs-Appellants,
versus
AETNA LIFE INSURANCE COMPANY,
ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(November 10, 1994)
Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.
PER CURIAM:
Dr. George Farber, Gulf South Medical and Surgical Institute,
and Burks-Farber Clinics appeal entry of summary judgment in favor
of Aetna Life Insurance Company in their suit to recover health
insurance benefits. Finding no error, we affirm.
Background
From 1988 to 1990 Dr. Farber treated Edwin Delaney, Jr. for
skin disorders, excising multiple lesions and performing skin
grafts. Delaney, an employee of Lafarge Corporation, filed for

insurance benefits under Lafarge's benefit plan. Aetna, which
administered the plan, obtained an evaluation of Delaney's claims
from Medical Review Institute and, in concurrence with MRI's
recommendation, disallowed approximately 80 percent of the amounts
claimed. Obtaining an assignment of Delaney's claims, Dr. Farber,
Gulf South Medical, and Burks-Farber Clinics sued Lafarge, Aetna
and MRI in state court, invoking the civil enforcement provisions
of the Employment Retirement Income Security Act of 19741 and also
alleging defamation. MRI was dismissed for lack of personal
jurisdiction and the remaining defendants removed the action to
federal court. The district court granted defendants' motion for
summary judgment. This appeal timely followed.

Analysis
We review a grant of summary judgment de novo, affirming if
there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.2 Faced with a properly
supported motion, as here, the nonmovant must present sufficient
evidence to allow a rational trier of fact to find in his favor.3
The plaintiffs did not satisfy this burden.
Aetna's decisions to deny coverage rested on factual grounds.
To prevail on their ERISA claim the plaintiffs must establish that
129 U.S.C. 1132(a)(1)(B).
2Fed.R.Civ.P. 56(c).
3Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986).
2

these decisions by Aetna constituted an abuse of discretion.4 We
find no hint of such in the summary judgment record. The
decisionmaking process used by Aetna was rational. It referred
Delaney's claims to MRI, a nationally recognized company accredited
in numerous states, for evaluation by a doctor certified in
dermatology by the National Board of Medical Examiners. Aetna
reviewed the evaluation and accepted it, except for instances in
which its regional estimate of the reasonable and customary charge
exceeded MRI's.
Nor have the plaintiffs adduced evidence of anything
unreasonable in the substance of Aetna's decisions. In no instance
did Aetna change Dr. Farber's diagnosis; plaintiffs' contrary
protestations misread the MRI evaluations. Although some MRI
reports point out that lesions diagnosed as "carcinoma in situ" by
Dr. Farber and his pathologist are benign and could be treated more
economically by freezing rather than surgery, Aetna did not reduce
benefits or otherwise disallow charges on that basis. In several
instances Aetna changed procedure codes pursuant to MRI
recommendation, but only to conform with Dr. Farber's own reports.
Other disallowances were of procedures that were not reflected on
Dr. Farber's reports, supplies customarily incorporated in the
charge for the surgery, and duplicative surgery charges -- Aetna,
for example, refused to pay for three full surgeries when three
lesions were removed at one time.
4Pierre v. Connecticut General Life Ins. Co., 932 F.2d 1552
(5th Cir.), cert. denied, 112 S.Ct. 453 (1991).
3

Dr. Farber complains that Aetna did not obtain an opinion from
a dermatopathologist, as recommended by an MRI reviewing physician
and an examining dermatologist, Dr. Robert Rietschel. According to
Dr. Rietschel, a dermatopathologist could have established whether
"the lesions excised were what they are represented to be." Aetna,
however, accepted Dr. Farber's diagnoses. Delaney and Dr. Farber
therefore lost nothing by Aetna's failure to consult a
dermatopathologist.
Dr. Farber further challenges the district court's reliance on
the MRI reports, contending that they are hearsay. The reports
provide a reliable indication of the bases of Aetna's decisions and
therefore were properly considered in the inquiry whether Aetna
abused its discretion.5 Dr. Farber also contends that Aetna
singled out his bills for special scrutiny. In support, he points
to a notation on Aetna records of Delaney's claims: "Do not pay any
claims to Burks-Farber/Send to C[ost] C[ontainment] U[nit] 1st."
We conclude that this notation would not support a finding that
Aetna failed to exercise impartial judgment.
The appeal of the dismissal of the defamation claim is equally
devoid of merit.6 The plaintiffs contend that Aetna defamed them
by communicating its disallowance of charges to Delaney. Clearly
such communications are qualifiedly privileged. There is no
evidence of malice required to overcome this privilege.7
5Pierre, supra.
6We do not decide whether this claim is preempted by ERISA.
7See Rouly v. Enserch Corp., 835 F.2d 1127 (5th Cir. 1988).
4

The plaintiffs also appeal the dismissal of MRI for lack of
personal jurisdiction. The foregoing disposition moots this
assignment of error.8
AFFIRMED.
8MRI's motion to dismiss this portion of the appeal likewise
is denied as moot.
5

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