not be performed outside of the clinical trial setting because of the need to evaluate the safety and efficacy of the procedure. Dr. Small quarreled with the definition of the term "experimental." He contended that to him the term meant a study involving animals. He contended that the procedure had been proven effective and was medically necessary in the plaintiff's case. Dr. Small's opinion had not been made available to Prudential in its decisional process.
The court denied the preliminary injunction on the ground that, in the court's opinion, the plaintiff had not established any likelihood of success on the merits because the decision of Prudential, based on the opinions of Drs. Cheson and Weiss, was obviously neither arbitrary nor capricious.
Subsequent to the hearing plaintiff was accepted as a patient and was treated with the autologous stem cell rescue by Dr. Sweet. She contends in her brief that she remains liable for payment of this treatment.
Since the defendants have been given discretionary authority to determine eligibility for benefits and to construe the policy, this court's review of their decisions is limited to a determination of whether their actions were arbitrary and capricious. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989). Although plaintiff in her brief alludes to a conflict of interest, by which she presumably means that Hyatt, and through Hyatt, Prudential, have an incentive to deny valid claims, this does not change the review standard. Gallo v. Amoco corporation, 102 F.3d 918, 1996 U.S. App. LEXIS 33086, *7, (7th Cir. 1996). The question before the court is not whether the decision to deny the pre-certification was right or wrong, but whether it is reasonable.
Based on a review of the evidence introduced at the preliminary injunction hearing, the only evidence presented to Hyatt and Prudential were the letters of Drs. Chelson and Weiss. Both clearly opined that the procedure prescribed for plaintiff was experimental and was in the phase II clinical trial stage of determination. Although at the hearing Dr. Small took issue with the definition of experimental, his opinion was not furnished to Prudential for consideration. The plan appeal process clearly gives an employee the right to supplement the appeal with supporting documentation. Plaintiff failed to do so. Thus the evidence available to defendants was uncontradicted: that the procedure was experimental and not covered by the policy.
Plaintiff has had over one year to conduct discovery. She apparently has been unable to uncover any evidence casting any reflection on the bona fides of Hyatt, Prudential, the Medical Care Ombudsman Program, Ms. Monaco, or Drs. Cheson and Weiss. Plaintiff's only argument in her favor is so lacking in merit it approaches a violation of Rule 11: it is premised on the assumption that the applicable provisions are ambiguous and under ordinary contract law must be construed against defendants. She cites Phillips v. Lincoln National Life Insurance Co., 978 F.2d 302 (7th Cir. 1992). However, had plaintiff read this case she (or her lawyers) would see that it is completely inapplicable and in fact supports defendants. In discussing the standard of review, the Seventh Circuit starts out by citing Firestone for the proposition that a denial of benefits is to be reviewed under a de novo standard "unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Nowhere does plaintiff make any argument that Hyatt and Prudential did not have discretion under the plan to construe its terms.
In short, plaintiff offers no valid reason why the decision of Prudential was arbitrary and capricious so the court must grant defendants' motion for summary judgment.
Judgment entered in favor of the defendants and against the plaintiff.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: January 23, 1997
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that judgment is hereby entered in favor of the defendants Hyatt Corporation and The Prudential Insurance Company against the plaintiff, Donna Santucci.
January 23, 1997