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February 18, 1993



The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 Plaintiff Ruby Duckwitz is currently undergoing treatment for life-threatening, inoperable breast cancer. Her physicians have recommended that as a part of a course of treatment plaintiff undergo a High-Dose Chemotherapy/Autologous Bone Marrow Transplant ("HDCT/ABMT"). Without prompt commencement of the course of treatment prescribed, including HDCT/ABMT, plaintiff has been advised she has very little chance for recovery nor for any extended period of disease free life.

 Plaintiff is insured under a group health policy issued by defendant General American Life Insurance Co. ("GAL") to Illinois Lumber and Material Dealers Trust ("the Plan"). The Plan is an employee welfare benefit plan under ERISA, 29 U.S.C. ยง 1001 et seq. The Plan provides at page 2 that "judgments on the payment or denial of health insurance claims . . . rests with [GAL]" and at page 4 that "All decisions on eligibility, coverages . . . are the responsibility of [GAL]." GAL has refused to grant preauthorization coverage for plaintiff's HDCT/ABMT treatment beyond a limitation of $ 100,000.

 Plaintiff filed suit in the Circuit Court of Cook County, Illinois on January 22, 1993 seeking injunctive relief against defendant's refusal to provide preauthorization coverage. On February 4, 1993, GAL acknowledged coverage but only to a maximum lifetime limit of $ 100,000. Plaintiff filed an amended complaint for declaratory judgment on February 11, 1993. Defendant GAL on February 16, 1993 filed a motion to dismiss and a memorandum in support. Plaintiff filed a response to the motion to dismiss on February 17, 1993. For the reasons stated herein, defendant's motion is denied.

 As stated by defendant GAL, "On February 11, 1993, plaintiff filed her Amended Complaint seeking a declaratory judgment that GAL's application of the $ 100,000 lifetime limitation to ABMT was 'arbitrary and capricious' (Amended Complaint, p. 3). That is the issue now before this court." (GAL's Memorandum in Support of Motion to Dismiss, p. 4.)

 As described in the case law, *fn1" HDCT/ABMT is a several step procedure which is expensive and requires the patient's hospitalization. First, physicians remove or "harvest" from the patient the patient's stem or "factory" cells which live in bone marrow and produce white blood cells, red blood cells and platelets. The harvested bone marrow is placed in frozen storage; it will be returned to the body at the completion of chemotherapy. Next, the patient receives high-dosage chemotherapy. The increased and intense doses of chemotherapy or radiation treatment administered to the patient are lethal and would likely destroy the removed bone marrow, if it were to have remained in the patient's body, thereby causing the patient's death. Patients survive the treatment because, after the completion of the chemotherapy, a patient's preserved, living bone marrow, which contain the stem or "factory" cells, are reintroduced and reinfused into the patient intravenously. Thus, the patient's immune and blood-forming systems are reinstated, which counteracts the ill effects of the chemotherapy and allows the patient to survive the otherwise fatal chemotherapy treatment.

 The process has been accepted by the medical community and the courts as constituting a generally accepted medical treatment for breast cancer when such cancer cannot be cured through smaller doses of standard chemotherapy. *fn2"

 Defendant claims that the HDCT/ABMT procedure has a $ 100,000 maximum lifetime limitation based on the policy term "Organ Transplants", which are listed on a limitation attachment to the Plan and state "Lifetime Maximum $ 100,000." (Plaintiff's Response to Motion to Dismiss, Exhibit B). Nowhere in the Plan is the term "Organ Transplants" defined.

 Indeed, GAL, for a definition of its "Organ Transplants" policy language, looked to pages of Taber's Cyclopedic Medical Dictionary, 14 edition (1981) ("Taber's") (Defendant's Memorandum in Support of Motion to Dismiss, Exhibit E). This somewhat dated treatise defines the terms as follows:

transplant. . . To transfer tissue or an organ from one part to another as in grafting or plastic surgery." (Exhibit E, p. 1479)


bone marrow. . . The soft organic material that fills the cavities of the bone. (Exhibit E, p. 198).

 In addition to Judge Conlon's December 22, 1992 opinion in Fuja, supra, there are earlier reported decisions even more on point as to the issues before the court. *fn3" Among the authorities is the April 3, 1992 opinion Nesseim v. Mail Handlers Benefit Plan, 792 F. Supp. 674 (D.S.D. 1992), in which the court held in ...

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