Maggs and his law partner, Michael DiCicco, also won the 2020 ruling at the Third Circuit in Plastic Surgery Center v. Aetna Life Insurance.

In that case, the court said ERISA did not preempt an out-of-network provider's common-law breach-of-contract and promissory estoppel claims.

Adam J. Petitt of Robinson & Cole in Philadelphia represents Aetna in the latest suits. He declined to comment, and referred a question about the case to Aetna.

An Aetna spokesperson, Alex Kepnes, said the company had no comment.

$5,000 Paid Out of $91,000?

In one such case, filed in Monmouth County Superior Court on Sept. 6 and removed to U.S. District Court on Oct. 27, Aetna agreed to pay the out-of-network rate to PSC for a bilateral breast reconstruction.

The patient, M.W., had the procedure in March 2022. PSC then billed $121,678, which is the uniform and customary rate, the suit said.

PSC then agreed to accept $91,258 from a claims settlement company for its claim, according to the suit. But Aetna paid only $5,098 for the surgery, the suit said. PSC is seeking $86,161.

PSC said in court papers that Aetna made false representations "without a reasonable basis for the belief that they were true, and were made with the intent that [PSC] would rely on them to its detriment. Aetna owed a duty to [PSC] not to make false representations. [PSC] reasonably and justifiably relied upon Aetna's misrepresentations to its detriment that it would be compensated at the network level for the performance of the Surgical Procedure and for forfeiting its right to balance bill" its patients.

'They Want to Pay Us a Pittance'

"These cases all emanate from a pattern by the insurance companies to underpay out-of-network doctors for the medical services they perform," Maggs said. "The insurance companies come to these out-of-network doctors because they don't have doctors within their network to perform these highly specialized procedures. After promising these doctors that they will pay them a usual, customary and reasonable rate, the doctor has performed the surgery but the insurance companies breach their promises and pay them well below the usual, customary and reasonable rates, forcing the doctors to file these legal cases.

"Some insurance companies negotiate before the surgery is performed, and they come to a formal agreement for the exact payment. There's others like Aetna that do not negotiate beforehand. They want to negotiate afterwards. And then don't pay what they should," Maggs added. "And then we resolve afterwards but they're saying that they want to pay us a pittance, a mere fraction of what the usual, customary and reasonable rates are."

In the Third Circuit case, the court said ERISA is a comprehensive statute, "but its complexity does not relieve us of our duty to carefully assess the parameters of the claims before us to determine whether they relate to ERISA plans."

The court found, "Because the Center plausibly alleged breach of contract and promissory estoppel claims that do not contain an impermissible reference to or connection with ERISA plans, the District Court erred in dismissing those claims as preempted at this stage of the litigation, even as it properly dismissed the unjust enrichment claims as preempted."