United States Court of Appeals,

Fifth Circuit.

No. 91–3523.

Jack R. SALLEY, Individually and on Behalf of his Minor Daughter, Danielle SALLEY, et al.,

Plaintiffs–Appellees, Cross–Appellants.

v.

E.I. DuPONT de NEMOURS & CO., et al., Defendants–Appellants, Cross–Appellees.

July 27, 1992.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Danielle Salley was a psychiatric patient at DePaul Hospital. DuPont paid for her treatment

under an ERISA plan it had established. DuPont concluded that Danielle's treatment was no longer

medic ally necessary and terminated the benefits. Salley and her father brought suit to recover the

costs of Danielle's hospit alizat io n. The district court ruled in their favor. DuPont appeals the

decision, claiming the district court erred both in holding that t he plan administrators abused their

discretion and in applying the treating physician rule. DuPont also appeals the court's decision to

award attorney's fees, and the Salleys contest the court's calculation of the fees. We affirm the district

court's ruling.

I. FACTS

DuPont established its Hospital Medical–Surgical Coverage Policy (the "Plan") in accordance

with the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA").

At all relevant times, Connecticut General administered the Plan, and DuPont reimbursed Connecticut

General the full costs of medical claims. DuPont also contracted with Preferred Health Care

("Preferred") to manage the individual cases.

Danielle Salley is a fifteen-year-old girl with a history of emotional disabilities, drug abuse,and depression. Her father, Jack Salley, is a retired DuPont employee and continues to participate

in the Plan under which Danielle is covered as his dependent. Danielle has been an in-patient three

times at DePaul Northshore Hospital in Covington, Louisiana. Each time, she has been under the

care of Dr. Gordon Blundell, a psychiatrist in charge of the hospital's adolescent unit. The present

litigation concerns DuPont's termination of benefits during the third admission in the hospital.

During her first two visits, Danielle was an extremely troubled child. She displayed suicidal

tendencies, attempted to escape, and experienced episodes of head-banging. She, however, improved

during each visit, but as soon as she was released, she "recompensated"—i.e. reverted back to her

previous behavior. Dr. Blundell thus determined that Danielle could not live with her parents and

attend public schools.

Dr. Blundell was concerned abo ut Danielle's continual admissions and releases from the

hospital, a problem he referred to as her "revolving door admissions." In an attempt to eliminate the

revolving door admissions, Dr. Blundell worked with Plan administrators to "flex" the benefits. A

"benefits flex" is a health insurance industry practice in which the parties amend or modify the policy's

coverage benefits in order to accommodate a contingency that the original contract did not address

specifically. Although the policy does not in terms permit the treatment provided, the treatment is

mutually beneficial because the insured receives the coverag e desired while the insurer reduces its

payout expense through less expensive treatment.

Beginning in Danielle's second admission at DePaul Hospital, the Salleys and hospital

employees attempted to locate a less restrictive treatment for D anielle, including several boarding

schools. They, however, were unable to find a facility capable to meet Danielle's particular needs.

Unable to find such a facilit y, the hospital released Danielle to attend public school. She subsequently

recompensated.On September 10, 1990, Danielle was readm it t ed to DePaul Hospital. As the hospital's

records evidence, she quickly restabilized. In fact, Dr. Blundell wrote in his October 5, 1990

Progress Notes that Danielle was beginning "to function at the highest level she ever has in life."

On September 28, 1990, Dr. Blundell conv ersed o n t he telephone with Ron Schlegel, a

Preferred case manager, regarding Danielle's condition. Schlegel was knowledgeable about Danielle's

case because he had been involved with it since her first admission. Dr. Blundell apprised Schlegel

of Danielle's dramatic improvement but also informed Schlegel that although Danielle was currently

stable, he did not think he could release her because she would quickly regress. Schlegel advised Dr.

Blundell that Dr. Satwant Ahluwalia, in accordance with Preferred procedures, would review the case

to d et ermine medical necessity. The Plan pays only for expenses that are "medically necessary,"

although the Plan never defines the phrase.

Dr. Ahluwalia, a psychiatrist and regional director at Preferred, also had been involved with

the case since Danielle's first admission. She, however, never had examined Danielle nor reviewed

the medical records from the second or third admission. She had reviewed the records from Danielle's

first admission.

Dr. Blundell and Dr. Ahluwalia discussed Danielle's treatment on the telephone on October

2, 1990. Dr. Blundell told Dr. Ahluwalia that Danielle was stabilizing and would be able to leave the

hospital soon, but he did not wa nt t o repeat the revolving door of admissions. Dr. Ahluwalia

instructed Dr. Blundell that DuPont would terminate the benefits for in-patient hospitaliz ation on

October 11, 1990. She testified at trial that she knew Dr. Blundell did not agree with this date for

release.

The Salleys brought suit challenging DuPont's termination of benefits from October 11, 19901 In accordance with an agreement between the parties, DuPont paid Danielle's hospitalization

expenses through November 20, 1990, although DuPont challenges whether the Plan required it

to make the payments. through January 25, 1991. 1 Dr. Blundell discharged Danielle o n January 25, 1991. She has since

enrolled in the Darrow School in New York.

The district court concluded that DuPont abused its discretion when it terminated benefits for

Danielle's in-patient hospitalization. Consequently, the co urt found DuPont liable for Danielle's

hospital bills from October 11, 1990 through January 25, 1991. Moreover, the court awarded

discretionary attorney's fees under 29 U.S.C. § 1132(g) and required each party to pay its own costs.

DuPont appeals the district court's ruling.

II. STANDARD OF REVIEW

We first address the st andard of review we employ in evaluating DuPont's decision to

terminate benefits under t he t erms o f t he ERISA benefit plan. The Supreme Court holds that the

denial of be nefit s "is to be reviewed under a d e novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe

the terms of the plan." F irestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948,

956, 103 L.Ed.2d 80 (1989). If the plan gives the administrator or fiduciary discretionary authority,

then we apply an abuse of discretion standard. I d. In applying the abuse of discretion standard, we

analyze whether the plan administrator acted arbitrarily or capriciously. P enn v. How e–Baker Eng'rs,

Inc., 898 F.2d 1096, 1100 n. 2A (5th Cir.1990).

The Policy states "The [DuPont] Employee Relations Depar t ment shall be responsible for

development of procedures to implement the policy, for interpretation of policy, and for coordination

of administration." Similar language has led this Court to apply the abuse of discretion standard. S ee,

Lowry v. Bankers Life and Casualty Retirement Plan, 871 F.2d 522, 524 (5th Cir.), cert. denied, 493

U.S. 852, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989) (granting the Plan Committee the power to"interpret and construe" the plan was sufficient to apply the abuse of discretion standard); B atchelor

v. Int'l Brotherhood of Electrical Workers Local 861 Pension and Retirement Fund, 877 F.2d 441,

443 (5th Cir.1989) (the following language gave the administrator discretion: the Trustees "have full

and exclusive auth o rity to determine all questions of coverage and eligibility.... They ... have full

power to construe the provisions of this Agreement, [and] the terms used herein").

The Salleys assert two reasons why we should not apply the abuse of discretion standard.

First, DuPont contracted with Preferred Health Care for medica l necessity reviews. DuPont,

t herefo re, was not exercising its discretion as the Plan envisioned. We disagree. The contract

between DuPont and Preferred explicitly states, "DUPONT reserves final authority to authorize or

deny payment fo r services to beneficiaries of a Plan." Moreover, counsel for DuPont stated that

DuPont exercised final authority in the case at hand. As long as a company maintains the ultimate

decision on denial of benefits, it c an be beneficial for it to have experienced agents assist in the

determination.

DuPont's conflict of interest also concerns the Salleys. DuPont funds the Plan from current

operating revenues, giving it an apparent incentive to deny benefits. The alleged conflict, however,

does not change the standard of review. "[I]f a benefit plan gives discretion to an administrator or

fiduciary who is operating under a conflict of interest, that conflict must be weighed as a "factor[ ]

in determining whether there is an abuse of discretion.' " F irestone, 489 U.S. at 115, 109 S.Ct. at 956

(citation omitted); s ee also, Lowry, 871 F.2d at 525, n. 6 ("There may be in effect a sliding scale of

judicial review of trustees' decisions ...—more penetrating the greater is the suspicion of partiality,

less penetrating the smaller that suspicion is ...") (citation omitted). Accordingly, we apply an abuse

of discretion standard to DuPont's benefits termination decision.

III. ABUSE OF DISCRETION

Analyzing the record before us, we conclude the district court correctly ruled that DuPont2 We note that when we refer to the Plan administrators, we necessarily must refer to Schlegel

and Dr. Ahluwalia because DuPont presented no evidence regarding its decision to terminate

benefits. We are told that DuPont made the final determination as to continuation or

determination of benefits, but no one explained what DuPont did with the information provided by

Schlegel and Dr. Ahluwalia other than to terminate benefits. We do not even know who at

DuPont made the ultimate decision. If there is any support at all in the record for the DuPont

decision, it must be found entirely in the recommendations of Schlegel and Dr. Ahluwalia. abused its discretion when it termin at ed benefits for Danielle's in-patient hospitalization. DuPont

argues that this Court's decision whether the Plan administrator abused his discretion must be based

upon the facts known to the administrator at the time the decision was made. D enton v. First Nat'l

Bank of Waco, Texas, 765 F.2d 1295, 1304 (5th Cir.1985). Although we generally decide abuse of

discretion based upon the information known to the administrator at the time he made the decision,

the administrator can abuse his discretion if h e fails t o o btain the necessary information. In the

present case, neither Schlegel nor Dr. Ahluwalia ever examined Danielle, nor had either one obtained

the records from the second or third admissions to DePaul Hospital.

The Plan administrators may rely on the treating physician's advice, or it can independently

investigate the treatment's medical necessity. 2 In the present case, the Plan administrators apparently

relied on Dr. Blundell's description that Danielle was no longer suicidal or out of con trol . The

administrators, however, cannot rely on part of Dr. Blundell's advice and ignore his other advice. Dr.

Blundell also warned Dr. Ahluwalia that he could release Danielle only if there was an "iron-clad plan

in hand that would assure her structure, safety, and well being." Such a plan had not been found.

The hospital records from the third admission would have demonstrated to the administrators

the medical necessity of Danielle's in-patient hospitalization. Danielle was stable when she was in the

hospital, but as soon as she was released into her former environment, she began to deteri orate. The

do ct o rs who examined Danielle and carefully evaluated her case were confident release into the

improper environment would lead to recompensation.

DuPo nt maintains that options other than just hospitalization or release to her formerenvironment existed. It suggests, for example, that a residential care treatment would have satisfied

Danielle's needs. In reality, hospitalization and release t o her former environment were the only

options available at the time in question. Dr. Blundell agreed a less restrictive environment could be

beneficial to Danielle, but he felt releasing Danielle was inappropriate until a proper program and

environment was found. Such a program had not been discovered at the time in question. Therefore,

if Dr. Blundell had released Danielle, of necessity she would have returned to her former environment.

Both the Salleys and the hospital spent significant time trying to find a le ss restrictive

environment for Danielle. The evidence indicates they acted in good faith and without any

unnecessary delay. In fact, the Salleys eventually found an appropriate environment for Danielle at

Darrow School, where she enrolled in January 1991.

We further note that the issue of a less restrictive environment has nothing to do with money.

One of the issues the district court addressed was whether DuPont would pay for the alternative

treatment. The district court held DuPont did not have to pay for the costs of Darrow School, and

the Salleys have not appealed this issue. Whether DuPont would pay for the alternative treatment,

however, is irrelevant. If the requisite facility had been found, then hospitalization would not have

been medically necessary. On the other hand, until the facility was found, hospitalization was

medically necessary.

We hold that although DuPont followed the prescribed procedures, it abused its discretion

in relying upon the Schlegel and Dr. Ahluwalia recommendation to terminate D anielle's benefits.

Because they chose to follow Dr. Blundell's diagnosi s, Schlegel and Dr. Ahluwalia were required,

absent independent inquiry, to follow all his advice, not just part of it. If they decided to deviate from

his diagnosis, they were required to investigate further the medical necessity of in-patient

ho spit alization. Whether this investigation included an examination of Danielle or an analysis of

hospital records depended on the particulars of each case. At the very least, however, administratorsrelying on hospital records obviously must review the most recent records. The case administrator

and the physician conceded at trial that they did not do so.

IV. THE TREATING PHYSICIAN RULE

During the trial, the judge stated, "I am certainly going to give deference to the treating

physician." Moreover, the court's opinion stated, "In light of Dr. Blundell's testimony in this matter,

and the deference to be shown him as the patient's treating physician, the Court concludes that the

continued inpatient psychiatric hospitalization

... was "medically necessary' ..." DuPont maintains that

applying the "treating physician rule" is improper in ERISA cases.

The "treating physician rule" requires the court, in appropriate circumstances, to defer to a

patient's treating physician's testimony unless substantial evidence contradicts the testimony. J ones

v. Sullivan, 949 F.2d 57, 59 (2nd Cir.1991). We have recognized the use of the rule in cases

involving termination of social security benefits. B abineaux v. Heckler, 743 F.2d 1065, 1068 (5th

Cir.1984); F

loyd v. Bowen, 833 F.2d 529, 531 (5th Cir.1987). Courts have also applied the rule in

suits brought under the Federal Tort Claims Act. Curtis v. Shivers, 674 F.Supp. 1237, 1240

(E.D.La.1987). But we declined to apply the rule when a handicapped child's treating physician

testified regarding the appropriate education for the child. C hristopher M. v. Corpus Christi Indep.

School Dist., 933 F.2d 1285, 1292 (5th Cir.1991).

This Court has not addressed the propriety of the "treating physician rule" in ERISA cases.

We have considerable doubt about holding the rule applicable in ERISA cases. Under it, the treating

physician would stand to profit grea t ly if the court were to find benefits should not be terminated.

T here is a clear and strong conflict of interest, and we are doubtful that a court sho uld defer

automatically to his or her testimony. S ee, Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890

F.2d 1137, 1140 (11th Cir.1989).The district court did apply the "treating physician rule." But even assuming this was error,

the error was harmless. Although the court announced it was applying the "treating physician rule,"

it later stated in its opinion that "of all the witnesses heard, the one most interested in the welfare of

this patient, and not in the insurer's pocketbook, was the treating physician." Assuming it is error to

grant a presumption in favor of the treating physician in an ERISA case, the district court nevertheless

may properly assess each case's individual circumstances and evaluate the witnesses' credibility. If

a court believes the tre at ing physician is more credible than other witnesses, it is entitled to give

greater weight to his or her testimony. The record here is clear that the court made the decision as

to credibility and properly relied heavily upon the testimony of the treating physician.

V. ATTORNEY'S FEES AND COSTS

The district court awarded the Salleys attorney's fees but decreased the amount awarded by

$3000 as a sanction for their attorney's pattern of abuse of process. The district court furt her

required each side to bear its own costs. DuPont challenges the granting of attorney's fees, and the

Salleys appeal the sanction and the requirement that they bear their own costs.

Under ERISA, the district court has the discretion to award attorney's fees to either party.

29 U.S.C. § 1132(g)(1). Such an award is purely discretionary, and we review the district court's

decisi o n o nly for an abuse of discretion. D onovan v. Cunningham, 716 F.2d 1455, 1475 (5th

Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 35 33, 82 L.Ed.2d 839 (1984). "In deciding

whether to award attorneys' fees to a party under section 502(g), therefore, a court should consider

such factors as the following: (1) the degree of the opposing parties' culpability or bad faith; (2) the

abilit y of the opposing parties to satisfy an award o f at t orneys' fees; (3) whether an award of

attorneys' fees against t he o ppo sing parties would deter other persons acting under similar

circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and

beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and

(5) the relative merits of the part ies' position." I ron Workers Local No. 272 v. Bowen, 624 F.2d3 The court stated: "Some examples of such abuse of process on plaintiffs' counsel's part,

which run far afield of characterization as "overzealous representation,' include but are not limited

to the following: (1) Inappropriately engaging the jurisdiction of a state court for issuance of an

ex parte Temporary Restraining Order; (2) Meritless attempts to remand the action once properly

removed to the federal court; and (3) Abuse of the motion procedure by filing numerous

memoranda riddled with unduly repetitious narrative providing virtually no assistance to the Court

and having no bearing on the issues before the Court.... These and other actions caused

defendants to unnecessarily expend considerable time and resources." (emphasis in original). 1255, 1266 (5th Cir.1980), appeal after remand, 695 F.2d 531 (11th Cir.1983).

The district court based its finding upon the unreasonableness of DuPont's termination of the

benefits. The court analyzed the Salleys' counsel's time sheets and concluded that he spent 72.45

hours on the matters actually at issue in the case. The court then determined $110 was a reasonable

rate for such services. We find support for the decision of the district court in the record. We hold

that the district court did not abuse its discretion when it awarded attorney's fees.

The district court decrease d the fees by $3,000 for sanctionable abuse of process. 3 In

accordance with Fed.R.Civ.P. 11, a district court c an sanction an attorney for filing papers in the

cour t fo r impro per purposes. We review the district court's Rule 11 decision under the abuse of

discretion standard. T

homas v. Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.1988) (en

banc). The district court not only enumerat ed t he counsel's specific abuses in its opinion but also

admonished counsel throughout trial fo r his improper tactics. We hold the sanction valid. The

district court did not abuse its discretion.

Finally, the district court held that each side would bear its own costs. We recognize a strong

presumption that the court will award costs to the prevailing party. S heets v. Yamaha Motors Corp.,

U.S.A., 891 F.2d 533, 539 (5th Cir.1 990). Nevertheless, Fed.R.Civ.P. 54(d) permits the court to

exercise its discretion and withhold an award of costs to the prevailing party. We review for abuse

of discret io n, but if the court does not award costs to the prevailing party, we require the district

court to state its reasons. H all v. State Farm Fire & Casualty Co., 937 F.2 d 210, 216–217 (5thCir.1991). The court cannot require the prevailing party to share costs unless the costs serve as a

sanction. Id. at 216.

In the present case, the court held that the counsel's improper conduct throughout the trial

warranted requiring the Salleys to pay their costs. The court, thus, did support its conclusion that

the prevailing party pay its own costs, the costs serving as a sancti o n. The court satisfied the

requirements of the law and did not abuse its discretion.

VI. CONCLUSION

We find no reversible error, and we affirm the district court's holding. The court applied the

correct standard of review, and the evidence supports its ruling tha t DuPont abused i ts di screti on

when it terminated Danielle's benefits. Even assuming that the court erred in applying the treating

physician rule, the error was harmless because the court held specifically that the treating physician

was the most credible witness. Finally, the district court did not abuse its discretion in its rulings

regarding attorney's fees and costs.

AFFIRMED.