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FRENDREIS v. BLUE CROSS BLUE SHIELD OF MICHIGAN

January 11, 1995

JOAN R. FRENDREIS, Plaintiff,
v.
BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendant.



The opinion of the court was delivered by: GEORGE M. MAROVICH

 Plaintiff Joan R. Frendreis ("Frendreis") brought this action seeking a determination of her right to coverage under a medical insurance plan issued by Blue Cross Blue Shield of Michigan ("BCBSM"). Frendreis seeks coverage for a procedure which will treat her life-threatening breast cancer. The procedure is a form of high dose chemotherapy supported by peripheral stem cell rescue ("HDCT/PSCR"). BCBS asserts that the procedure is not covered under her policy because it is experimental in nature and because certain riders were issued to Frendreis subsequent to the effective date of her coverage which specifically excluded HDCT/PSCR for breast cancer. Frendreis claims that the original policy does not explicitly exclude coverage for HDCT/PSCR and that the policy is ambiguous. She further claims that any riders which were sent subsequent to the policy were not supported by consideration and therefore cannot modify or alter her coverage. BCBS moved for judgment on the pleading and Frendreis responded and cross-moved for summary judgment. *fn1"

 This Court set an expedited briefing schedule and short ruling date in order to address the matter as quickly as possible recognizing that time is of the essence for the Plaintiff. The Court has reviewed the parties' submissions and denies BCBSM' motion for judgment on the pleading and grants Plaintiff's cross-motion for judgment on the pleading.

 BACKGROUND

 Effective October 1, 1991, Frendreis became eligible for medical and health care services under a Non-Group Comprehensive Health Care Benefits program offered by Defendant, Blue Cross Blue Shield of Michigan. Frendreis' coverage is outlined in the contract "Non Group Comprehensive Health Care Benefits Certificate" and subsequent "Riders." This Certificate did not contain any specific exclusions for HDCT/AMBT or HDCT/PSCR but did contain an exclusion for coverage of treatments which were determined by BCBSM to be experimental or investigational in nature. The Clause reads:

 
Experimental Services
 
Services which we determine to be experimental or investigational are not covered by this Certificate. Please see the definition in "The Language of Health Care" in this book.

 Prior and subsequent to the effective date of Frendreis' coverage with BCBSM, Frendreis had been receiving treatment for metastatic breast cancer by way of chemotherapy and otherwise since 1983. BCBSM was aware of Frendreis' breast cancer and her treatments.

 On October 10, 1994, Dr. Jacob Bitran, on behalf of Frendreis, requested confirmation of coverage for the contemplated treatment of her Stage IV breast cancer by way of HDCT/PSCR. High dose chemotherapy involves the administration of extremely high, potentially toxic, doses of chemotherapy in an effort to eradicate cancer cells. The chemotherapy also kills bone marrow which produces white blood cells to protect the body from infection. Thus, if high dose chemotherapy is administered without some additional treatment to regenerate bone marrow, the patient has little, if any, chance of surviving the treatment.

 Autologous bone marrow transplant ("ABMT") and peripheral stem cell recovery ("PSCR") are two methods used to regenerate bone marrow. With ABMT, prior to the administration of high dose chemotherapy, healthy bone marrow is removed from the patient who is placed under general anesthesia while marrow is extracted by needle. Stem cells are removed from the bone marrow and frozen. The cells are then reintroduced into the body intravenously following chemotherapy for the purpose of causing the patient's bone marrow to regenerate.

 The same result can be achieved through PSCR which involves a process similar to collecting blood. With PSCR, the stem cells are harvested from the patient's blood which is removed by placing a catheter in the patient's neck. This process does not require general anesthesia. As with ABMT, the stem cells are reintroduced intravenously following chemotherapy.

 On October 17, 1994, Dr. Seymour S. Adelson, Associate Director of BCBSM, denied coverage of the Procedure. In coming to this conclusion, Dr. Adelson reviewed the following: the relevant information, including the specific protocol describing Frendreis' proposed procedure, Protocol 2209 "Phase I Study of High Dose Thiotepa, Novantrone, and Taxol ("TNT") with Peripheral Stem Cell Support in the Treatment of Patients with Refractory Malignancies," Frendreis' consent form for the procedure; and current authoritative literature on the procedure. As Dr. Adelson explained in his letter denying coverage, Frendreis' treatment was not covered under the Plan because it was not medically necessary as it was experimental and investigational. Additionally, Dr. Adelson denied coverage to Frendreis based on Rider BMT, which did not provide payable benefits for such a treatment. Simply stated, Dr. Adelson denied coverage of Frendreis' treatment because he believed it was not a benefit provided under the Plan.

 On October 24, 1994, Frendreis brought suit against BCBSM in the Circuit Court of Cook County, seeking a mandatory injunction enjoining denial of coverage and declaratory judgment that BCBSM's denial is arbitrary, capricious, unreasonable, and vexatious. On November 8, 1994, BCBSM removed this matter to the United States District Court for ...


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