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December 1, 1994



As Corrected December 28, 1994. Released for Publication January 13, 1995.

Justice Johnson delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Bonnie Lubeznik, filed this action in the circuit of Cook County seeking a permanent injunction requiring defendant, Healthchicago, Inc., to pre-certify her for certain medical treatment. Following a hearing, the trial court granted the injunction. Defendant appeals, contending the trial court improperly (1) determined that the requested treatment was a covered benefit under plaintiff's insurance policy; (2) interpreted portions of the Illinois Health Maintenance Organization Act; (3) excluded certain testimony as hearsay evidence; and (4) granted the injunction.

We affirm.

The record reveals that in November 1988 plaintiff was diagnosed with Stage III ovarian cancer. At the time of her diagnosis, the cancer had spread through her abdomen and liver and she had a 20% survival rate over the next five years. Plaintiff underwent a surgical procedure known as debulking, during which cancerous tumors were removed to promote maximum results for chemotherapy. She then received chemotherapy and underwent additional surgery, which her doctors determined had failed. Plaintiff's doctors then unsuccessfully attempted several other treatment methods including intraperitoneal cisplatin therapy, which involves injecting chemotherapy agents directly into the abdomen.

In June 1991, plaintiff was referred to Dr. Patrick Stiff, the director of the bone marrow treatment program at Loyola University Medical Center (hereinafter Loyola). Dr. Stiff sought to determine the prospect of treating plaintiff with high dose chemotherapy with autologous bone marrow transplant (hereinafter HDCT/ABMT). HDCT/ABMT is a procedure where bone marrow stem cells are removed from the patient's body and frozen in storage until after the patient has been treated with high dose chemotherapy. Following chemotherapy, which destroys the cancer, the marrow previously extracted is reinfused to proliferate and replace marrow destroyed by the chemotherapy. HDCT/ABMT had been a state of the art treatment for leukemia and Hodgkin's disease for many years. It began to be used in the late 1980's for women who were in the late stages of breast cancer.

Dr. Stiff examined plaintiff but decided to forgo the HDCT/ABMT until an attempt was made to decrease the mass of tumors by using Carboplatin, an outpatient chemotherapy treatment. After plaintiff received three cycles of Carboplatin, Dr. Stiff observed very slight improvement in her condition. Plaintiff then sought treatment in a University of Chicago program, but was rejected for the program because of irregularities in her heartbeat. Thereafter, she returned to Dr. Stiff seeking inclusion in his HDCT/ABMT program.

On October 28, 1991, Dr. Stiff contacted defendant requesting that it pre-certify plaintiff for the HDCT/ABMT, i.e., agree in advance to pay for the treatment. Plaintiff's insurance policy required her to get pre-certified before receiving elective treatment, procedures and therapies. Dr. Wayne Mathy, defendant's medical director, received Dr. Stiff's pre-certification request and telephoned him shortly thereafter. During his conversation with Dr. Stiff, Dr. Mathy stated that the ABMT/HDCT was not a covered benefit under plaintiff's insurance policy because the treatment was considered experimental.

On October 31, 1991, plaintiff filed a two-count complaint against defendant and Loyola. In count one, plaintiff sought a mandatory injunction against defendant to pre-certify her for the HDCT/ABMT. In her second count, plaintiff sought an injunction against Loyola to admit her for medical treatment without a deposit of $100,000. Both defendant and Loyola filed motions to dismiss plaintiff's complaint. Subsequently, plaintiff took a voluntary non-suit against Loyola.

Following a hearing, the trial court denied defendant's motion to dismiss and defendant filed its answer instanter. Thereafter, a hearing on the complaint was held at which Dr. Stiff testified that the HDCT/ABMT was an effective treatment for plaintiff given that all conventional treatments for her had been exhausted. He stated that he had performed 21 HDCT/ABMT procedures on patients with Stage III ovarian cancer and as a result, 75% of those patients were in complete remission.

During further testimony, Dr. Stiff opined that the HDCT/ABMT was not experimental and presented documents and literature in support of his testimony. Dr. Stiff also presented a letter from the American Medical Association indicating that autologous bone marrow was an appropriate method for managing bone marrow in patients undergoing treatment for cancer. He also opined that the HDCT/ABMT was accepted as a standard treatment for patients with ovarian cancer.

Dr. Mathy testified at the hearing that his responsibilities as defendant's medical director included determining whether a requested medical treatment is covered under an insurance policy issued by defendant. He stated that after he received plaintiff's request for pre-certification, a member of defendant's benefit analysis staff contacted the National Institute of Health, the National Cancer Institute, and Medicare seeking an assessment as to whether the requested treatment was experimental. According to Dr. Mathy, defendant determined that the HDCT/ABMT was experimental based on information received from those medical assessment bodies. Dr. Mathy also stated that he spoke with Dr. Harry Long of the Mayo Clinic concerning the HDCT/ABMT procedure. When defendant's ...

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