Zervos v. Verizon New York

Nickolas Zervos (plaintiff) was diagnosed with breast cancer in 2000. After Zervos had completed standard chemotherapy, Dr. Charles Hersdorffer, Zervos’s doctor, recommended high-dose chemotherapy (HDCT). Empire Healthchoice, Inc. (Empire) (defendant), Zervos’s insurer, required that covered treatments be medically necessary and excluded experimental treatments. Empire had provided coverage for HDCT in past years. However, after reviewing studies of HDCT, Empire concluded that patients had a 60–70 percent survival rate no matter what treatment was chosen. In 2000, Empire stopped providing coverage for HDCT. When Zervos applied for coverage of HDCT, Empire denied coverage. Zervos appealed. The appeal was heard by the Medical Care Ombudsman Program (MCOP). The reviewer, Dr. Thomas Spitzer, concluded that there was no convincing evidence that HDCT was more effective than conventional therapy. The MCOP review denied coverage. A second MCOP reviewer agreed with the first. Zervos sued, claiming that the denial of coverage violated the Employee Retirement Income Security Act (ERISA), and requesting an injunction to bar Empire’s denial of coverage. Zervos’s expert, Dr. Roy Jones, testified that HDCT gave Zervos the best chance for survival, but Jones’s own research described the HDCT studies as contradictory and incomplete. Hersdorffer also testified that HDCT would improve Zervos’s chance of survival but offered only one inconclusive study in support.