[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-11699 ELEVENTH CIRCUIT
NOV 19, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 06-80162-CV-DTKH
ERIC KAPLAN,
BONNIE KAPLAN,
Plaintiffs-Appellants,
versus
BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 19, 2008)
Before ANDERSON, HULL and COX, Circuit Judges.
PER CURIAM:
In late 2003, Plaintiffs Eric and Bonnie Kaplan (“the Kaplans”) began
receiving BOTOX Cosmetic (“BOTOX”) injections from Bach McComb, a one-time
osteopath who had lost his license to practice medicine in Florida. The Kaplans
sought the BOTOX injections for purely cosmetic purposes. After receiving several
injections without incident, the Kaplans suffered severe injuries when, on November
24, 2004, McComb substituted raw botulinum-A toxin for BOTOX.
The Kaplans submitted approximately $800,000 of resulting medical bills to
their health insurer, Blue Cross and Blue Shield of Florida, Inc. (BCBSF). BCBSF
denied their claims, finding that the November 24, 2004 injections were “cosmetic
services,” not covered under their health insurance plan and that the medical care the
Kaplans required as a result of those injections were “complications of non-covered
services,” also not covered under their health insurance plan.
After an administrative review process yielded affirmance of BCBSF’s
coverage determination, the Kaplans sued BCBSF in district court, alleging violation
of ERISA. On cross-motions for summary judgment, the district court denied the
Kaplans’ motion and granted summary judgment to BCBSF. The Kaplans now
appeal that judgment.
We find no reversible error. The district court correctly found that BCBSF did
not misinterpret the language of the Kaplan’s health insurance plan when it denied
their claims. (R.1-28 at 11.) Like the district court, we decline to accept the Kaplans’
arguments that McComb’s substitution of raw botulinum-A toxin for BOTOX
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tranformed the medical services they later received to treat their resulting injuries into
covered services.
AFFIRMED.
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