I’ve blogged a fair amount about the steep hill a deferential standard of review creates for ERISA claimants. So how steep is it? Has there been any attempt to quantify the difference between how claimants do in the courts under a de novo standard of review compared to how they do under an arbitrary and capricious standard of review? There has been one survey of which I’m aware that has reviewed the results of several years of ERISA benefit claim cases. I’ve placed a copy of the one page summary of the survey in the website library which you can take a look at here.
The survey results are striking. The researchers took a look at over 424 ERISA benefit cases decided from 1993 to 2003. Of those cases, 380 were decided under an abuse of discretion (arbitrary and capricious) standard of review. Patients prevailed 28% of the time. The remaining 44 cases were decided under a de novo standard of review. Patients prevailed in 66% of those cases.
Pretty compelling information.