For more information on the concurring opinion in this case, click here.

Cases of negligent misrepresentation under the Employee Retirement Income Security Act (ERISA) are common and perhaps inevitable. A health plan's documents aren't clear, or a health plan employee makes a mistake when representing the plan's scope of coverage, and the result is a patient who finds out too late that a health procedure will not be covered. It was long thought to be the case that plaintiffs who sued over such situations were not entitled to make-whole relief in the form of monetary compensation. If they paid out-of-pocket for medical care that a plan representative mistakenly told them would be covered, they couldn't get that money back.

However, the 7th Circuit's June 13 decision in Kenseth v. Dean Health Plan, Inc. found just the opposite in light of the Supreme Court's 2011 opinion in Cigna Corp. v. Amara, which, the 7th Circuit wrote, “substantially changes our understanding of the equitable relief under 1132(a)(3),” ERISA's civil enforcement provision. In Cigna the Supreme Court said that monetary compensation in certain cases falls within the scope of “appropriate equitable relief” under ERISA.