Emily H. v NYU Med. Ctr.

[*1] Emily H. v NYU Med. Ctr. 2012 NY Slip Op 52446(U) Decided on August 9, 2012 Civil Court Of The City Of New York, New York County Masley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2012
Civil Court of the City of New York, New York County

Emily H., Plaintiff,

against

NYU Medical Center, Defendant.



SC20274/10

Andrea Masley, J.

In this small claims action to recover umreimbursed pharmaceutical expenses, plaintiff Emily H. seeks judgment for $2,633.60 against defendant NYU Medical Center, with whom H. underwent treatment at its Fertility Treatment Center in the spring of 2010. At trial on April 12, 2012, Ms. H testified credibly as the sole witness and was cross-examined by counsel for NYU.

Ms. H shopped around for an appropriate fertility provider. She chose NYU because NYU promised to assist her with her insurance carrier. Ms. H. testified that on June 3, 2010, she was seen by Dr. G. at NYU and that G. prescribed a drug he identified as Follitropin, a less expensive generic. H. stated that she was told at NYU that the medication was pre-authorized by Oxford medical, H.'s carrier, and that Bigelow Pharmacy could fill her prescription. H. was thereafter told at Bigelow that her prescription, not for Follitropin but for a medication known as Follistim, which cost over $1,300, was not, in fact, pre-authorized. In sticker shock at the high cost, H. phoned NYU and was assured that it was a matter of little time before Bigelow's computer system reflected Oxford's credit for the prescription. She was also told that for the treatment to work, she must take the medication immediately. On this basis, H. testified, she paid $1,316.80 for a 900 unit cartridge of Follistim on a prescription with two refills. Two days later H. returned for a refill, again paying out-of-pocket and again phoning NYU to inquire about coverage. H. stated at trial that she was assured a second time that the prescription had been authorized and that she could expect credit momentarily.

Some days later, according to Ms. H., she was contacted by Sholanda, an employee at NYU, with news that Oxford would reimburse for the generic Follitropin but not Follistim, a name-brand version of a similar treatment. According to Ms. H., an apologetic Sholanda attributed the prescription of Follistim to an error by NYU. Ms. H. contacted Oxford and was told that to be covered by Follistim, Ms. H. would need her treating physician to contact Oxford directly with medical justification. Ms. H. testified that her repeated calls and correspondence to Dr. G. and the offices at NYU, asking for G. to intercede on her behalf with Oxford, were unavailing, giving rise to this claim.

Ms. Horowitz submitted into evidence two receipts for Follistim in the amount of $1,316.80 each, dated June 3 and June 5, 2010. Also in evidence is a letter from Ms. H. to Dr. G., seeking reimbursement from NYU on grounds that she had, in essence, relied on the representations of NYU to her detriment and would not have purchased the Follistim but for [*2]NYU's assurances that the treatment had been pre-authorized by Oxford.

Ms. H.'s testimony was credible and consistent. NYU cross-examination failed to undermine Horowitz's credible testimony. The court rejects NYU's defense that Ms. H. did not speak to NYU. She called NYU's number. People answered the phone "NYU." Ms. H. called NYU within minutes of leaving NYU's Fertility Center. The individuals to whom she spoke were familiar with her and her situation. They repeatedly assured her that the Follistim was pre-approved and would be fully reimbursed. NYU's defense is implausible and unpersuasive.

Mr. H.'s unrefuted testimony and documentary evidence establish that there was an agreement between the parties for fertility treatment, that treatment would require medication, and that NYU would assist her to obtain insurance coverage, that NYU mistakenly issued a prescription for the wrong medication which was not covered instead of the correct generic medication which was covered by Ms. H.'s carrier and was fully reimbursable. H. testified credibly that she would not have made the purchase but for NYU's repeated assurances that the cost was covered by her carrier, and it is not disputed that the generic substitute was suitable for treatment and was what Dr. G. said he would prescribe. A horrible mistake was made. Luckily, the medication mix up did not cause personal injury to Ms. H..

In the interest of substantial justice the court finds that NYU breached its agreement with Ms. H. to provide assistance to obtain insurance coverage. Instead, NYU abandoned her. Further, NYU misrepresented that it would assist Ms. H. to obtain insurance coverage which induced her to select NYU over other fertility providers. In fact, it did not assist her. Rather, once NYU got paid for its service, it disavowed any responsibility to assist Ms. H. to obtain the correct, affordable and essential medication. It did this when time was of the essence because she was required to take the medication immediately and she was most vulnerable. Judgment is awarded in favor of plaintiff.

Accordingly, it is

ORDERED that plaintiff shall have judgment in the amount of $2,633.60 together with costs and disbursements and interest from June 5, 2010.

This constitutes the decision and order of the court. The clerk shall enter judgment accordingly.

Dated: __________________________ ________________________________ Andrea Masley, Civil Court Judge mailed to plaintiff/petitioner _____________________________(date mailed) mailed to defendant/respondent _____________________________(date mailed) mailed to other _____________________________(date mailed) mailed to other _____________________________(date mailed)