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

1

(a)(1)(B). 2 Fed.R.Civ.P. 56(c). 3 Celotex Corp. v. Catrett,

(1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,

(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.

4 Pierre v. Connecticut General Life Ins. Co.,

(5th Cir.), cert. denied,

(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

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6 We do not decide whether this claim is preempted by ERISA. 7 See Rouly v. Enserch Corp.,

(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.

8 MRI's motion to dismiss this portion of the appeal likewise is denied as moot.

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