The U.S. Court of Appeals for the Seventh Circuit, in an en banc decision, held that the husband of a deceased plan participant may continue with his fiduciary breach claim against his spouse’s former employer and health plan. In this case, the participant had lung cancer that had spread to her brain. After physicians at her in-network hospital determined that they could not operate, she sought a second opinion from an out-of-network hospital that soon after admitted her for surgery. Although the surgery successfully removed the tumor, her cancer treatment was ultimately unsuccessful, and she died a few months later. Because the treating hospital was considered out of network, the plan denied many of the medical expenses later submitted by her husband. The widower sued the employer and the plan, arguing, in part, that the plan breached its fiduciary duty by not informing him that the treating hospital was considered out-of-network. The plan document did not list network coverage, rather directed participants to call a dedicated telephone number. The plaintiff twice called the numbers on the insurance card prior to his wife’s surgery, and although he did not explicitly ask, no one notified him that the treating hospital was out of network and that he would be responsible for the additional expenses. The court, quoting a prior case, noted “regardless of the precision of his questions, once a beneficiary makes known his predicament, the fiduciary ‘is under a duty to communicate … all material facts in connection with the transaction which the trustee knows or should know.’” On the fiduciary breach claim, the court reversed the grant of summary judgment and remanded the case to the trier of fact to determine 1) if the calls put the plan on notice, giving rise to a duty to disclose the out-of-network status, 2) whether the plan breached its duty, and 3) whether the breach harmed the plaintiff. Killian v. Concert Health Plan (7th Cir. 2013)