Battling Blue Cross And Cancer

Insurer Can't Re-define 'Experimental,' Judge Says

December 23, 1990|By Peter Hermann | Peter Hermann,Staff writer

BALTIMORE - With Pasadena resident Judy Marsh recovering from a bone marrow transplant in a North Carolina hospital, another Anne Arundel woman was in federal court Friday, fighting to force her insurance company to pay for the same procedure.

Marsh was able to get the treatment to help her fight breast cancer because friends, neighbors and others raised more than $115,000. The procedure could cost $170,000.

But Alexandria Adams of Millersville and Kelly Whittington of Hagerstown, Washington County, also suffering from breast cancer, weren't as lucky. They filed suit against Blue Cross/Blue Shield of Maryland in June when the company refused to pay for the bone marrow procedure. Closing arguments in the non-jury trial were Friday.

Federal District Judge Marvin Garbis said he would try to issue his ruling before the first of the year. But he indicated in court that Blue Cross would probably lose.

Richard Carter, the lawyer representing both women, wouldn't discuss the case or the judge's comments, but said a ruling against Blue Cross could be precedent-setting.

The case could pave the way for other women in need to get autologous bone marrow transplants. The procedure, deemed experimental by Blue Cross, involves removing some of a bone marrow, freezing it and then injecting it back into the body after high doses of chemotherapy are administered.

Carter, who also represents Marsh, said a court ruling may not be needed to help Marsh get a settlement, because of on-going negotiations between her doctor at Duke and Blue Cross/Blue Shield of North Carolina, which is responsible for the claim because the procedure was performed at Duke University Hospital in Durham.

Carter said Friday he believes Blue Cross of North Carolina eventually will pay for Marsh's treatment, but said Blue Cross of Maryland continues to resist payment for Adams and Whittington.

In court Friday, Blue Cross attorney Peter H. Gunst argued that the insurance company should not have to pay for the transplants because the procedure is experimental and investigational. "Just because it is put on a menu of options offered to patients does not make it non-experimental," he said.

Gunst said the procedure may help some women, but it is not proven safe or effective over the long term.

He questioned some of the doctors who supported the transplant procedure during the trial. "We cannot rely on laboratory observations from the people who have a desire to see the procedure work," he said.

The crux of the argument boiled down to language in the policy contract, which defines "experimental" as what is "non-acceptable medical practice."

Garbis said that since all the doctors at the trial -- including those for Blue Cross -- testified they would recommend the transplant procedure to some patients of their own, he sees the transplant as being accepted by the medical community.

The judge said the line between what is and is not experimental cannot be drawn by Blue Cross or the courts and said the insurance company could have defined "experimental" differently, thus avoiding the issue altogether.

"Throughout this trial, you have given a lot of definitions for 'experimental,' " the judge told Gunst. "They are all wonderful. But they are not in the contract. The words 'acceptable medical practice' are not unknown to the law. They have a meaning. You just want to give them a different meaning."

Garbis continually rejected Gunst's arguments that experimental means any procedure that has not been fully established with years of medical research proving its effectiveness.

"You cannot define what experimental means any other way than it is defined in this contract," he said. "Blue Cross didn't do what it is supposed to do in deciding coverage. They didn't even look at this contract."

"The procedure is experimental if we define it the way you want us to," Garbis said. "But that is not the way it is defined in the contract. Blue Cross wants to create a definition and tell the doctors what to do. . . .

You want Blue Cross to make the medical judgment. This contract doesn't say that. It says the doctors make the decision."

Gunst argued that if physicians make all the decisions, it would leave the company open to covering anything. "The doctors can make any decision and Blue Cross would have to cover it," he said.

"Of course," Garbis answered. "That is what the medical community is about. You are not going to make medical judgments and neither am I."

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.