Blue Cross-Blue Shield erred in denying claims, court says Judge orders Blues to pay for breast cancer therapy.

February 28, 1991|By Kelly Gilbert | Kelly Gilbert,Evening Sun Staff

A federal judge has ruled that Blue Cross-Blue Shield wrongly denied breast cancer treatment to two Maryland women when the insurer claimed that the treatment was "experimental."

In a decision filed yesterday in U.S. District Court in Baltimore, Judge Marvin J. Garbis said Blue Cross-Blue Shield of Maryland must pay for the therapy, called "high dose chemotherapy with autologous bone marrow transplants," at an estimated cost of $100,000 a patient.

The suit was regarded as a test case on the insurability of the therapy, known as HDCT-ABMT, and on the Blues' contention they have the right to deny coverage based on their own determination of the treatment's medical acceptability.

Alexandra Adams, 34, of Millersville, and Kelly Whittington, 29, of Hagerstown, challenged the denials in consolidated lawsuits filed last summer. They claimed their physicians recommended the treatments after they had undergone mastectomies, because they were high risks for a recurrence of cancer. They also said HDCT-ABMT treatments were "accepted medical practice."

Blue Cross-Blue Shield said the treatments were "experimental or investigative" and thus not covered.

Garbis said his decision hinged on the fact that Maryland oncologists "generally acknowledged [the treatments] as accepted medical practice" when Adams and Whittington applied for their coverage.

The judge chided Dr. Arthur Keefe, Blue Cross corporate medical director, for failing to contact nine Maryland oncologists on recommendations from Whittington's attorney regarding the acceptability of the treatments, and for failing to contact any experts recommended by Adams' physician at Duke University Medical Center.

Whittington called the court's decision "a real big victory for me" and said she hopes "it will set the pace for all other women" across Maryland.

She received a bone marrow transplant at Georgetown University Medical Center in Washington last November, thanks to a $170,000 trust fund raised for her.

"I'm doing fine now," she said. "They told me this was the closest thing to a cure they can offer me."

Adams, who received her marrow transplant at Duke on referral from a Johns Hopkins Hospital physician, said she is "ecstatic" about Garbis' decision.

"It's wonderful for me, and I hope it will be passed on to other women in Maryland," she said. "I'm feeling pretty good now. I'm back at work and really enjoying life."

Richard Carter, one of the attorneys who represented the women, said the decision will affect "at least six or eight other women that I know of."

Peter H. Gunst, who defended Blue Cross-Blue Shield, declined comment.

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