The Supreme Court just held that ERISA recovery plans are enforceable as an “equitable lien based upon agreement”. The net is and will be that the plans get total reimbursement and, depending upon the contract language, maybe even without attorney fees. That these may be adhesion contracts that are in violation of public policy has not been raised.  That is an argument for the future.

Presently, the only solution in smaller or limited policy cases, short of total capitulation, may be to implead the insurance carrier as a necessary party (CPLR 1001).  Let them present their own claim through their own attorneys and pay for the physicians… The plan should not be able to remove it to federal court because there are other NY common law claims.  see: Merrell Dow Pharms. v Thompson, 478 US 804 (1986).  This is a fascinating and rapidly evolving area of the law!