## Facts

- Nickolas Zervos was diagnosed in 2000 with breast cancer and underwent standard chemotherapy.
- Zervos’s treating physician, Dr. Charles Hersdorffer, recommended high-dose chemotherapy with stem-cell support (HDCT) after completion of conventional therapy.
- Zervos was covered under a Verizon-sponsored employee health plan insured by Empire Healthchoice, Inc. (Empire) and administered in part by United Healthcare Co., Inc.
- The plan covered only services deemed “medically necessary” and excluded treatments considered experimental or investigational.
- Empire had covered HDCT in earlier years, but after reviewing published studies, it concluded that survival rates for the relevant patient population were similar regardless of whether HDCT or conventional therapy was used and stopped covering HDCT for metastatic breast cancer.
- Zervos applied for coverage of HDCT, and Empire denied the request on the ground that HDCT was not covered under the plan’s medical-necessity and experimental-treatment limitations.
- Zervos pursued external review through the Medical Care Ombudsman Program (MCOP).
- MCOP reviewer Dr. Thomas Spitzer concluded there was no convincing evidence that HDCT was more effective than conventional therapy; a second MCOP reviewer agreed, and the denial was upheld.
- Zervos filed suit under ERISA against Verizon New York and the plan-related entities involved in the denial, seeking to enjoin the denial of coverage.
- In connection with the lawsuit, Zervos moved for a preliminary injunction that would require the defendants to authorize/cover HDCT while the case proceeded.
- Zervos presented testimony from oncologist Dr. Roy Jones, who supported HDCT as offering Zervos the best chance for survival, though Jones’s own research described the HDCT studies as contradictory and incomplete.
- Dr. Hersdorffer also supported HDCT but relied primarily on a limited and inconclusive study in support of superiority over conventional therapy.

## Issues

1. Whether Zervos satisfied the requirements for a preliminary injunction compelling ERISA-plan coverage of HDCT—particularly by showing irreparable harm and either (a) a likelihood of success on the merits or (b) sufficiently serious questions on the merits plus a balance of hardships tipping decidedly in his favor.
2. Whether, on the record presented at the preliminary-injunction stage, Zervos showed a sufficiently strong likelihood that the plan’s denial of HDCT coverage violated ERISA because the treatment should be treated as medically necessary and not excluded as experimental or investigational.

## Decision

- The court denied Zervos’s motion for a preliminary injunction.
- The court concluded that, even given the serious medical stakes, the record did not show the required merits showing for mandatory preliminary relief compelling coverage.
- The court found that the medical literature and review materials before it (including the MCOP determinations) did not establish that HDCT was clearly superior to conventional therapy for Zervos’s condition, weakening Zervos’s showing on the merits.
- As a result, the court did not order defendants to provide coverage for HDCT at the preliminary-injunction stage.

## Legal Principles

- A party seeking a preliminary injunction in federal court must show irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits plus a balance of hardships tipping decidedly in the movant’s favor.
- A request for an injunction that effectively grants the ultimate relief sought (a mandatory injunction compelling payment/coverage) requires a strong showing on the merits.
- In ERISA benefits disputes, the plan’s terms control, including medical-necessity requirements and exclusions for experimental or investigational treatment, and the court assesses the administrator/insurer’s decision in light of those terms and the record supporting the denial.
- Where the medical support for a requested treatment is disputed or equivocal and independent review has found no convincing evidence of superiority over standard therapy, a plaintiff may fail to make the merits showing required for preliminary injunctive relief.

## Conclusion

In *Zervos v. Verizon New York*, the district court denied an ERISA participant’s request for a preliminary injunction that would have compelled coverage for high-dose chemotherapy, reasoning that the record at that early stage—marked by conflicting and inconclusive medical evidence and external review upholding the denial—did not support the required showing of likely success (or sufficiently serious merits questions with a decisively favorable hardship balance) for mandatory preliminary relief.


Zervos v. Verizon New York, 2001 WL 253377 (2001)