Colicchio v. Office Of Pers. Mgmt.
| Decision Date | 03 February 2011 |
| Docket Number | Civil Action No. DKC 10-0015 |
| Parties | LAURA COLICCHIO v. OFFICE OF PERSONNEL MANAGEMENT |
| Court | U.S. District Court — District of Maryland |
Presently pending in this action under the Federal Employees Health Benefits Act ("FEHBA") is a motion for summary judgment filed by Defendant Office of Personnel Management ("OPM"). (ECF No. 7). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, OPM's motion will be granted.1
The following facts are drawn from the administrative record before OPM.2
Plaintiff Laura Colicchio is a now 50-year-old woman who, for the past several years, has suffered from ankle problems. As the wife of a federal employee, Ms. Colicchio was covered by health insurance provided pursuant to the Federal Employees Health Benefits Program. During the time relevant here, Ms. Colicchio was insured through CareFirst BlueCross BlueShield ("CareFirst"), which provided coverage pursuant to a contract with OPM.
In May 2004, Ms. Colicchio suffered a fracture dislocation of her left ankle. (R. at 78).3 After having multiple surgeries, including ankle hardware installation and removal, Ms. Colicchio continued to have trouble with her ankle. (R. at 78). On January 24, 2006, she presented to Dr. Justin Cashman with ankle pain that worsened on weight bearing. (R. at 78). After examining Ms. Colicchio and reviewing her most recent X-rays from July 2005, Dr. Cashman identified a "hypertrophicfibular non-union with widening of the medial mortise, 15 degree malalignment to the ankle joint with destruction[,] and bone on bone arthritis of the entire lateral talar dome." (R. at 78). He diagnosed left ankle arthritis with valgus malalignment. (R. at 78). Dr. Cashman's notes reflect that he told Ms. Colicchio that he would not recommend any treatment for her ankle:
I had a long discussion with the patient regarding treatment options. I do not think at the present time that the patient is a candidate for anything. If she is able to run three miles and only has occasional pain when she arises from a seated position I would personally leave this alone and no[t] do any surgery. However if she becomes very symptomatic and is unable to run those long distances I think with her malalignment, age, weight[,] and deformity, [she] would be best served with an ankle fusion. She is adamant against this. I do not think with her malalignment, age, and weight that she is a candidate for ankle replacement. She has asked about osteoarticular ankle replacements and in general I have not witnessed good results in either the literature or in my own experiences with these cadaver grafts.
(R. at 79). Although Dr. Cashman was obviously resistant to trying any "osteoarticular ankle replacement[ ], " he nevertheless referred Ms. Colicchio to Dr. Lew Schon for further discussion on the treatment approach. (R. at 79). Dr. Cashman suggested Dr. Schon because he felt the doctor "has had a good deal of experience on [ankle allografts] and is published on them." (R. at 79).
On February 6, 2006, Ms. Colicchio saw Dr. Gregory Guyton, one of Dr. Schon's colleagues at Greater Chesapeake Orthopedic Associates. (R. at 81). Dr. Guyton diagnosed avascular necrosis-bone death-to the left distal tibia, with ankle arthritis. (R. at 81). "[D]ue to the amount of arthritis and avascular necrosis, " Dr. Guyton concurred with Dr. Cashman's recommendation that Ms. Colicchio receive a bone fusion and bone graft. (R. at 81). He added, "There are not too many more options." (R. at 81). In a follow-up visit to Dr. Cashman on February 16, Dr. Cashman told Ms. Colicchio that he "agre[ed] with Dr. Guyton's assessment." (R. at 80).
On August 30, 2006, Ms. Colicchio visited Dr. Schon for "a second opinion and other options other than an ankle fusion." (R. at 86). Dr. Schon's examination found some things about which to be optimistic: he noted no evidence of ankle instability, observed that she walked with a "normal gait, " found good strength in the joint, and heard no popping or cracking when the joint was moved. (R. at 86). On review of her x-rays, however, he agreed that she exhibited "end stage osteoarthritis... and degenerative changes of her talar dome." (R. at 86). Despite these conditions, Dr. Schon recommended a cautious course of treatment:
We discussed conservative and operative treatments. She is functioning quite well despite her severe radiographicosteoarthritis. I discussed her options including allograft surgery4 and distraction arthroplasty. We discussed that with the allograft, she would have [an] approximately 50% success rate.... At this time, the patient will try to continue with anti-inflammatories and manage as best as she can.
(R. at 87).
Ms. Colicchio continued to experience pain, which led her to return to Dr. Schon on October 31, 2006. She informed Dr. Schon that, "given her current activities, her age, and even though she seems to understand the risks associated with the procedure and the success rate only being about 50%, she would like to proceed with allograft transplant." (R. at 84). Dr. Schon discussed the risks of the surgery with Ms. Colicchio and agreed to set it up. (R. at 84).
Ms. Colicchio then asked CareFirst to pre-certify coverage for the allograft procedure. On December 14, 2006, CareFirst notified Ms. Colicchio and Dr. Schon that it would not certify the procedure, as it was not determined to be "medically necessary." (R. at 7, 13). Under the terms of CareFirst's plan, procedures that are not medically necessary are excludedfrom coverage. The relevant plan brochures define medically necessary procedures as those that are:
1. Appropriate to prevent, diagnose, or treat your condition, illness, or injury;
2. Consistent with standards of good medical practice in the United States;
3. Not primarily for the personal comfort or convenience of the patient, the family, or the provider;
4. Not part of or associated with scholastic education or vocational training of the patient; and
5. In the case of inpatient care, cannot be provided safely on an outpatient basis.
CareFirst's letter explained that, after "medical director review, "5 the company had determined that "there is little medical and scientific literature to support the device or treatment as standard therapy and [ ] the advantage of the total ankle replacement over the generally accepted surgical treatment has not been established." (R. at 7, 13).
Ms. Colicchio requested that CareFirst reconsider its decision by letter dated February 2, 2007. (R. at 15-16). In that letter, Ms. Colicchio emphasized (a) Dr. Schon's expertise and (b) the unfavorable outcomes likely to result from otherprocedures. In response, ten days later CareFirst requested medical records and notes from Drs. Cashman, Guyton, and Schon. (R. at 17-19).6 Among the items provided by Dr. Schon was a note dated February 21, 2007. R. at 85). That note explained that Ms. Colicchio's pain had worsened, her ankle had grown stiffer, and her adjacent joints were growing more dysfunctional. He opined that an ankle fusion would produce a high risk of increased stress on adjacent joints. And, perhaps most importantly, he concluded:
Based on the advanced arthritis and progressive transfer stress with symptoms, she would be best served with a joint-sparing procedure such as the ankle allograft or ankle replacement, which can help preserve the ankle motion and in turn decrease the stress to her neighboring joints. The downside to ankle replacement, given her age, is the rate of early failure and the large bulk of bone graft that would subsequently need to be taken to salvage the failed replacement. With the allograft, less bone is taken.
Dr. Schon also provided CareFirst with medical literature discussing the allograft procedure. (R. at 16, 31, 117).
CareFirst referred the matter to an outside physician advisor, David West, D.O., on March 14, 2007. (R. at 24-25). After reviewing all the medical documentation presented and theliterature, Dr. West concluded that the ankle allograft procedure was Because of the "lack of scientific evidence and peer studies" supporting the procedure, Dr. West agreed that the procedure was not medically necessary and recommended upholding the denial of coverage. After this physician review, Ms. Colicchio's materials were sent to a medical director, Dr. Robert Thomas, for review and confirmation. (R. at 26-27). He also determined that the allograft procedure was "not standard" and recommended upholding the denial. (R. at 27).
By letter dated March 21, 2007, CareFirst informed Ms. Colicchio that its earlier denial would be upheld. (R. at 2829). CareFirst again explained that the procedure was not "medically necessary" as that term was defined in the 2007 Federal Employee Health Benefit Plan Brochure. (R. at 28). It also emphasized that "[t]he fact that one of our covered providers has prescribed, recommended, or approved a service or supply does not, in itself, make it medically necessary or covered under this Plan." CareFirst sent a second letter thenext day upholding the denial of benefits for the inpatient hospital stay connected with the procedure. (R. at 30-31).
In an April 30, 2007 letter, Ms. Colicchio appealed CareFirst's decision to OPM. (R. at 32-34). The appeal letter was based on the assertion that: "[M]y present treating physician, Dr. Lew Schon, an orthopedic surgeon who specializes in disorders of the foot and ankle, has specifically recommended this surgery considering my condition." (R. at 32). She also argued that, among other things, CareFirst's decision was "arbitrary and...
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