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High-Dose Chemotherapy: Ensuring Coverage for Your Client, cont'd

The Lawsuit

As soon as you have prepared your appeal letter, you should begin the drafting of your lawsuit.

Where you file the action depends on you, of course. It is our experience, however, that in most instances when it can do so, i.e., ERISA coverage or diversity, the health care coverage provider will remove the matter to the U.S. District Courts. While we have had as much success there, as in the state courts, the removal causes additional delay. Thus, when we believe that the matter will end up in the District Court anyway, we file there.

As you are preparing the materials to file in court, it is a good idea to contact your client's physician to ascertain the extent of the "window of opportunity" with which you are working so that you will know exactly how hard you must push, and if he/she can buy you some additional time so as to allow you to proceed, because, naturally, if your client has already had the treatment, it only becomes a lawsuit for money damages.

We find that a simple two-count Complaint is best. In the first Count we seek mandatory injunctive relief, preliminary and permanent, from the court, ordering the health care coverage provider to afford the coverage required for the patient's treatment and to issue its preauthorization for such treatment. Since we find that some judges are reluctant, for whatever reason, to issue injunctive relief, in the second Count we seek a declaratory judgment finding that the policy/plan covers the contemplated treatment.

I am aware, however, of two unique efforts at obtaining coverage, which have been successful, one in the trial court and one in the Court of Appeals. In Henderson the Court held that the Americans With Disabilities Act could be applied, while the Linker court looked favorably on the claim of sexual discrimination since the carrier covered the treatment for testicular cancer. Henderson v. Bodine Aluminum, 95-2469 (CA, 8th, 1995), Linker v. Blue Cross Blue Shield of Oregon, CV 95-6087, OR (1995)

At the same time as we prepare the Complaint, we also prepare a simple Motion for an Expedited Hearing on the question of the issuance of a preliminary mandatory injunction, or on all of the issues, whichever the court will grant.

It is important to indicate in this motion that the treatment being sought is required to either cure the patient or to extend her period of disease free life; that she can't obtain the treatment without coverage, because she doesn't have the funds with which so to do and that absent the treatment she is likely to die.

When you serve the Summons and Complaint on the health care coverage provider, you should also serve on it, at the same time, a Notice setting your Motion for an Expedited Hearing within the next several days. If you feel it necessary, also fax to the health care coverage provider copies of all of the filed materials.

It is our experience that, when confronted with the allegations of your Motion, most courts will set a hearing date within the next 7-10 days, so you'd better be ready to go.

The Hearing

Before the hearing commences, we find that it is best to submit to the Court a Trial Memorandum, setting forth all of the correspondence between the medical providers and the health care coverage provider and between you and the health care coverage provider, including all of the materials you submitted with your appeal letter. It is also a good idea to attach, to the memorandum, copies of all of the opinions and decisions on which you rely in your argument. I don't believe that you can give the court too much when you are trying to convince it to help to save your client's life.

At the hearing you are going to need only a few witnesses: your client, a representative from the hospital and the oncologist who plans to treat her.

The oncologist will be able to testify as to the nature of your client's condition, the nature of the treatment which he/she has recommended for her, why the ABMT or PSCR is necessary and the likely consequences to the patient/plaintiff if the treatment is not commenced promptly. He/she will likely also qualify as an expert to testify to the fact that high dose chemotherapy supported by ABMT or PSCR is being recommended and performed at highly respected institutions throughout the country, by highly respected physicians in the field and that it has shown much better results than standard chemotherapy alone. You will also want the oncologist to testify that the treatment is being performed at most of the institutions under some type of study. This will help avoid the "experimental" sounding nature of a "study" because the courts, and even defense experts, have held and testified, that merely being a part of study, does not render a treatment experimental. Jenkins v. Blue Cross Blue Shield of Michigan, 3:93 CV 7295, WD OH (1995), Kekus v. Blue Cross Blue Shield, Inc., 815 F. Supp. 571, (NY, 1993) If asked, the oncologists will usually testify that Phase III studies, which are random treatment/placebo studies in which some patients get the studied treatment while others do not, in the case of high dose chemotherapy with ABMT or PSCR support, for the treatment of cancers such as the plaintiff's, would be unethical for the reason that they would require the denial to randomly selected patients of the only treatment which would give them any chance at life, which is the reason that Phase III studies are not being conducted extensively and that patients are most difficult to obtain.

If you feel that it will strengthen your case, you may want to try to obtain the testimony of other oncologists in your area to support your position. If you can't get them to come in, you may want to get affidavits from them, which, after you submit them to your opponent, so that his/her client can review the matter again, can be attached as a part of your Trial Memorandum.

The hospital representative should testify as to the approximate cost to the patient for the treatment contemplated and to the, usual, hospital policy requiring, absent health care coverage, a substantial deposit of funds with the hospital, before the treatment can be initiated. You can sometimes get this testimony from the doctor limiting your need for a representative from the hospital.

The patient/plaintiff will only be required to testify to the fact that she has insufficient assets with which to deposit with the hospital the funds required before she can obtain the treatment she needs to save her life.

The defense will usually bring in someone from the claim department of the health care coverage provider and the medical director or other medical person, who will testify as to the review procedure and the basis of the ultimate denial. They will often get in testimony about conversations they had with others which they used in making their decisions, despite any complaints about hearsay. As can be expected, their qualifications, as well as their financial bias on behalf of their employer can usually be attacked. Back to Contracts 101. Be careful to see to it that the coverage provider complied with the terms of its policy/plan in conducting its review. Often its failure to do so will be your best argument for coverage.

They may also bring in some "expert" who will testify as to the experimental nature of the contemplated treatment. Some of these "experts" have testified frequently throughout the country and can be successfully cross examined by reading the opinions in the matters in which they have been involved, where the courts have treated their prior testimony less than favorably. Most of the courts realize their bias and give great deference to the physician who is charged with keeping the patient/plaintiff alive.

In the cross examination of these experts, you should be able to get them to admit that thousands of women with breast cancer have successfully received this treatment, across the country. In the cases of ovarian cancer, they will also admit that the statistics are less than in the treatment of breast cancer only because the incidence of ovarian cancer is, fortunately, substantially less than that of breast cancer.

In the latter regard, your oncologist may testify that the treatment of ovarian cancer, by way of chemotherapy, is, in a sense, easier than the treatment of breast cancer, because of the single nature of ovarian cancer as opposed to the varying types of breast cancer.

Since the goal of coverage is usually decided at the conclusion of the preliminary hearing, it is rare that any trial will be conducted. If you obtain a preliminary ruling that your client is entitled to coverage, she will have been treated at the carrier's expense long before any trial might be set. If you should be unsuccessful, at the preliminary stage, a later trial would likely be futile.

Conclusion

This is not a fight that lawyers take on because of the potential of substantial monetary gain, but it is one that we take on because of our desire and need to help others and to make a difference in this world. When someone asked me recently why I've taken on this challenge, I told him that it was really what I went to law school for, over 45 years ago.

The time constraints involved and the consequences of the efforts, make this an emotionally and physically draining challenge, but I cannot begin to tell you of the gratification and elation you will feel when, through your efforts, your client gets a chance at continued life.

Reprinted with permission of PNLR (March 1996) The Association of Trial Lawyers of America.

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