Metropolitan News-Enterprise


Wednesday, March 5, 2003


Page 1


Suit Over Doctors’ Refusal to Perform Artificial Insemination Revived

Court of Appeal Panel Says Lesbian’s Discrimination Claim Not Barred by ERISA


By KENNETH OFGANG, Staff Writer/Appellate Courts


Federal law does not bar a lesbian’s suit against her health care provider for its alleged discriminatory refusal to perform an artificial insemination, the Fourth District Court of Appeal ruled yesterday.

Div. One reversed a ruling by San Diego Superior Court Judge William R. Nevitt, who dismissed Lupita Benitez’s suit against North Coast Women’s Care Medical Group on the ground it was preempted by the Employee Retirement Income Security Act.

Justice Alex McDonald, writing for the Court of Appeal, said ERISA does not preempt an action alleging that a plan member was denied services for a non-medical reason, unless the decision was related to plan eligibility or plan administration.

“...Benitez’s claims against respondents are outside the limited scope of ERISA preemption,” he wrote. “Respondents denied Benitez medical treatment, not the economic benefits available under the plan. More importantly, the complaint alleges respondents denied Benitez treatment for religious or other reasons, rather than for plan-based eligibility reasons, which is conduct not regulated by ERISA.”

North Coast, located in Vista was, at the time Benitez went there, the sole provider of obstetric and gynecological services in Northern San Diego County for members of Benitez’s ERISA-governed employee health plan.

Plaintiff’s Allegations

Benitez alleged in her complaint that she had been through 11 months of infertility treatments at North Coast, and was preparing to undergo artificial insemination there. She said she told her doctor, Christine Z. Brody, that she was a lesbian.

Brody, according to the complaint, told Benitez she was willing to continue overseeing her treatments, but would not perform the insemination procedure because she had a religious objection to impregnating a lesbian.

Benitez alleged that she agreed to this arrangement, although she was upset by it, but that when the time to perform the procedure approached, she was told that no one at North Coast would do it. She was eventually referred to an out-of-plan physician, she said, at a cost of several thousand dollars.

The insemination procedure was unsuccessful. Benitez later had a child, now a year old, through in vitro fertilization.

She pled numerous causes of action against North Coast and its doctors. In addition to alleging she was denied services on the basis of sexual orientation, in violation of the Unruh Civil Rights Act, she claimed breach of express and implied contract, bad faith, and infliction of emotional distress.

She also accused Brody of invading her privacy by noting on her chart that she would “require donor sperm” because she “has never been with a male partner,” after Benitez said she did not want her sexual orientation noted.

The defendants demurred, pleading ERISA preemption, and also filed an anti-SLAPP motion in which they said the suit threatened their “religious liberty.”

That aspect of the case drew amicus briefs from the Lambda Legal Defense and Education Fund, California Women’s Law Center, and National Health Law Program, all arguing the anti-SLAPP law cannot be asserted as a defense to a discrimination claim, and that assertions of religious freedom, as opposed to free speech and petition rights, are not covered by the law.

The Pacific Justice Institute filed a brief supporting the defendants. The Court of Appeal, however, declined to rule on the issue because the trial judge never did.

Motion Left Pending

Jennifer Pizer, senior staff attorney for Lambda Legal, said the anti-SLAPP motion was still pending when Benitez filed her amended complaint, a demurrer to which was sustained without leave to amend. A dismissal was then entered without any ruling on the motion, which Pizer described as frivolous.

The ruling on the ERISA issue, Pizer said, “is very significant” from the standpoint of gay rights because if the federal act is held to bar suits like Benitez’s, it would effectively immunize health care providers in the 12 states that have laws against sexual orientation discrimination from liability when the plaintiff is a member of an employee health plan.

Pizer authored Lambda Legal’s brief, along with Lisa Simonetti and Heather McConnell of Stroock & Stroock & Lavan’s Los Angeles office. The defendants were represented by Carlsbad attorney Carlo Coppo, who could not be reached for comment but has previously told reporters that Benitez’s claims are baseless and that she was reimbursed for the cost of using an out-of-plan physician.

The case is Benitez v. North Coast Women’s Care Group, Inc., 03 S.O.S. 1165.


Copyright 2003, Metropolitan News Company