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FUJA v. BENEFIT TRUST LIFE INS. CO.

December 22, 1992

GRACE RODELA FUJA, Plaintiff,
v.
BENEFIT TRUST LIFE INSURANCE COMPANY, Defendant.


Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Grace Rodela Fuja, a thirty-seven year old woman suffering from breast cancer that has spread to her lungs, sues her insurer, Benefit Trust Life Insurance Company ("Benefit Trust"), for refusing to pay for a high-dosage chemotherapy treatment with autologous bone marrow transplant ("HDC/ABMT") prescribed by her oncologist. Fuja brings this action pursuant to the federal Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. § 1001 et seq. She seeks injunctive and declaratory relief. 29 U.S.C. § 1132 (a)(1)(B) & (a)(3). Fuja originally moved for an order preliminarily enjoining Benefit Trust from denying insurance coverage for her prescribed HDC/ABMT treatment. Considering the emergency nature of this complaint, the court consolidated the injunction hearing with a trial on the merits. Fed.R.Civ.P. 65(a)(2). The hearing took place on Thursday, December 17, 1992.

 After reviewing the pleadings, exhibits, depositions and affidavits, and hearing argument on the merits, the court enters the following findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a) and 65(d).

 1. In August 1989, Fuja was diagnosed with breast cancer. Fuja Trial Ex. 2 at P 4. The following month, she underwent a lumpectomy, followed by a modified radical mastectomy. Id. Fuja then received six months of standard-dose chemotherapy. Id. Last February, she was diagnosed with metastatic cancer in both of her lungs. Id. In short, the cancer had spread.

 2. At this time, Fuja has responded well to standard-dose chemotherapy. Id. at P 5. However, because continued treatment with standard-dose chemotherapy provides Fuja with only a negligible chance of survival, her physician at the University of Chicago Hospitals has prescribed a regimen of high-dosage chemotherapy with an autologous bone marrow transplant ("HDC/ABMT"). Fuja's Trial Ex. 1 at P 10. Without HDC/ABMT, Fuja almost certainly will suffer further progression of the cancer -- a progression that causes death within months among a majority of persons inflicted. Id.; Fuja's Trial Ex. 2 at P 7.

 3. HDC/ABMT is a bifurcated procedure. Physicians first remove the patient's stem or "factory" cells that live in bone marrow and produce white blood cells, red blood cells, and platelets, and place the removed stem cells, or marrow, in frozen storage. Williams Dep. at 6-7. The patient then receives high-dosage chemotherapy that more powerfully eradicates cancer cells. Physicians first remove the patient's stem cells contained in the marrow because the high-dosage chemotherapy may destroy bone marrow. After the administration of high-dosage chemotherapy, the patient's own (autologous) stored marrow is reinfused (transplanted) intravenously. Id.

 4. HDC/ABMT represents the best, and perhaps only, available treatment for Fuja's stage IV metastatic breast cancer. Fuja's Trial Ex. 2 at P 6; Fuja's Trial Ex. 1 at P 6. Without this treatment, Fuja has virtually no chance of long-term survival. Fuja's Trial Ex. 1 at P 10; Fuja's Trial Ex. 2 at P 7. Fuja's treating physicians attest that she must undergo the treatment as soon as possible -- while her cancer remains in remission. Fuja's Trial Ex. 1 at P 11; Fuja's Trial Ex. 2 at P 8. Any delay would pose "very serious risk" and "could result in disease progression." Fuja's Trial Ex. 1 at PP 11-12. HDC/ABMT will provide Fuja a high probability of remission. Id. at P 9.

 5. Dr. Stephanie Williams, a breast cancer specialist at the University of Chicago Hospitals who possesses extensive experience with HDC/ABMT, will administer the treatment. The Illinois Department of Public Aid has certified the University of Chicago Hospitals to perform HDC/ABMT for breast cancer. Fuja's Trial Ex. 4 at P 5. Dr. Williams will administer the HDC/ABMT pursuant to a protocol that enables her to obtain comparative data used to assess the efficacy of high-dosage chemotherapy versus standard-dose chemotherapy. See Williams Dep. at 6, 37-40.

 6. The University of Chicago Hospitals require proof of payment before its physicians may perform the HDC/ABMT procedure. Fuja's Trial Ex. 5 at P 3. The procedure costs approximately $ 150,000. Fuja's Trial Ex. 3 at P 5. Fuja, a billing clerk, earns $ 21,000 per year; her husband, a shipping clerk, earns $ 17,000. Id. at P 3. Neither Fuja nor her husband can pay for the procedure. Id. at P 5. Without a demonstrated ability to pay for the treatment, the University of Chicago Hospitals will not administer HDC/ABMT. Fuja's Trial Exs. 5, 6. Fuja cannot demonstrate an ability to pay absent coverage by Benefit Trust.

 7. Benefit Trust refused coverage when Fuja petitioned the insurer for pre-approval of the treatment. Fuja's Trial Exs. 12, 13. Fuja appealed the denial. Benefit Trust again denied coverage. Fuja's Trial Ex. 20. The company refused to recognize the procedure as "medically necessary." Id.

 8. Fuja's employer, Emsco Management Services, maintains an employee benefit plan pursuant to 29 U.S.C. § 1002, et seq. Under the plan, Benefit Trust provides health insurance to Emsco's employees. Benefit Trust's Group Insurance Contract ("the insurance contract") governs payment of health benefits. Answer to Amended Complaint at P 11; Fuja's Trial Ex. 7. Employees, like Fuja, receive a plan brochure that generally describes benefits available under the insurance contract. Fuja's Trial Ex. 8. The terms of the insurance contract, not the contents of the plan brochure, govern payment of health benefits. Fuja's Trial Ex. 7.

 9. Fuja is an "insured" under the insurance contract; she is eligible for personal medical and health care. Answer to Amended Complaint at P 12.

 10. "Amendment Number 3" to the insurance contract, effective at all relevant times, states that Benefit Trust will provide benefit coverage for health care and treatment that is "medically necessary." Fuja's Trial Ex. 7. The amendment defines "medically necessary" as treatment that is:

 
1) "required and appropriate for care of the sickness or the injury;"
 
2) "given in accordance with generally accepted principles of medical practice in the U.S.;"
 
3) "approved for reimbursement by the Health Care Financing Administration;"
 
4) "not deemed to be experimental, educational or investigational in nature by any appropriate technological assessment body established by any state or federal government;"
 
5) "not furnished in connection with medical or other research."

 11. As stated, Benefit Trust denied coverage on the ground that Fuja's HDC/ABMT treatment was not "medically necessary." Fuja's Trial Ex. 20. Benefit Trust invoked the latter four criteria to deny coverage. More precisely, Benefit Trust deemed the procedure not "medically necessary" because:

 
The treatment is not . . . being given in accordance with generally accepted principles of medical practice in the U.S.; it is not reimbursed by Medicare (It is not approved for reimbursement by the Health Care Financing Administration); it is deemed to be investigational in nature by an appropriate technological assessment body established by a state or federal government (the National Cancer Institute); and, it is being furnished in connection with medical or other research.

 Id.

 12. Benefit Trust does not deny coverage on the basis that Fuja's proposed treatment has been deemed "educational" or "experimental" by "any appropriate technological assessment body." Fuja's Trial Exs. 14, 20.

 13. The court has jurisdiction over this dispute pursuant to 29 U.S.C. § 1132 (a)(1)(B) & (a)(3). Venue ...


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