The NFL Player Insurance Plan and Connecticut General Life Insurance Co. don’t have to turn over documents to a medical clinic that accused them of withholding payments in retaliation for the clinic’s cooperation with players’ disability claims.

Documents sought by Advanced Physicians SC are subject to the attorney-client privilege and don’t have to be produced in court, the U.S. District Court for the Northern District of Texas held. An exception to the attorney-client privilege that requires disclosure from fiduciaries of employee benefit plans didn’t apply in this case, Magistrate Judge Rebecca Rutherford said in an April 17 order.

Advanced Physicians accused the NFL health plan of adopting a blanket policy treating all its services for retired players as stemming from work-related injuries and therefore not covered. The clinic says this policy change was motivated not by the facts but by the NFL’s displeasure that players were using services from Advanced to support their claims of disability.

Portions of the lawsuit survived a motion to dismiss in 2018.

Issue of First Impression

Rutherford said the case raised a question never before addressed by a court within the Fifth Circuit: can a medical provider with an assignment of benefits from a plan participant compel plan fiduciaries to produce privileged material based on the fiduciary exception from the attorney-client privilege?

Rutherford said no. When a patient assigns to a medical provider the right to receive payment from the patient’s insurance plan, that assignment typically doesn’t include every right the patient has under the Employee Retirement Income Security Act, Rutherford said. In this case, the rights assigned to Advanced Physicians didn’t include the right to override the attorney-client privilege, Rutherford said.

The clinic is represented by Webster Law Firm, Capshaw & Associates, and Forshey & Prostok LLP. Cigna is represented by McDermott Will & Emery LLP. The NFL plan is represented by Akin Gump Strauss Hauer & Feld LLP.

The case is Advanced Physicians, S.C. v. Conn. Gen. Life Ins. Co., 2019 BL 137201, N.D. Tex., No. 3:16-cv-02355-G-BT, 4/17/19.