Dardinger v. Anthem Blue Cross
| Decision Date | 20 December 2002 |
| Docket Number | No. 2001-1222.,2001-1222. |
| Citation | 781 N.E.2d 121,98 Ohio St.3d 77,2002 Ohio 7113 |
| Parties | DARDINGER, Exr., v. ANTHEM BLUE CROSS & BLUE SHIELD et al., Appellees. |
| Court | Ohio Supreme Court |
Palmer Volkema & Thomas, L.P.A.; Robert G. Palmer, Michael S. Miller, Tony C. Merry and Elizabeth S. Burkett, Columbus, for appellant.
Thompson Hine, L.L.P., Earle Jay Maiman and Renee S. Filiatraut, Cincinnati, for appellees.
Bricker & Eckler, L.L.P., Kurtis A Tunnell and Anne Marie Sferra, Columbus, urging affirmance for amicus curiae Ohio Alliance for Civil Justice.
Vorys, Sater, Seymour & Pease, L.L.P.; Michael J. Canter and Lisa Pierce Reisz, Columbus, urging affirmance for amici curiae Ohio Chamber of Commerce and Ohio Council of Retail Merchants.
{¶ 1} There are two factual portions of this case relevant to our determination. The first set of facts is that which gives rise to the claims of the plaintiffs for breach of contract, bad faith, and punitive damages. The second set of facts is relevant in determining whether defendant Anthem Insurance Companies, Inc., waived a possible defense.
{¶ 2} The plaintiff-appellant in this case is Robert Dardinger, executor of the estate of his wife, Esther Dardinger. There are two defendants-appellees. The first is Community Insurance Company, an Ohio corporation that does business under the trade name Anthem Blue Cross and Blue Shield ("Anthem"). Anthem is a wholly owned subsidiary of the second defendant-appellee, Anthem Insurance Companies, Inc. ("AICI"), which was once known as Associated Insurance Companies, Inc.
{¶ 3} The plaintiff and the defendants are before this court because of what happened to Esther Dardinger as she fought her battle against brain cancer in 1997. Esther died on November 6, 1997, at age 49. Her last days were spent in great pain as the cancerous tumors in her brain took their final, brutal toll. The plaintiff claims that the way defendants handled Esther's chemotherapy needlessly shortened her life and caused her last days to be more painful than they should have been.
{¶ 4} In October 1996, Esther was diagnosed with metastatic brain tumors. The cancer had spread from her breast. Esther underwent radiation therapy, which stabilized, but did not shrink, the tumors. In March 1997, Dr. Herbert Newton, the director of neuro-oncology at the James Cancer Hospital and Solove Research Institute at the Ohio State University ("OSU"), began treating her. Dr. Newton recommended that Esther begin intra-arterial chemotherapy ("IAC") in order to shrink the tumors. The neurooncology tumor board at OSU agreed with Dr. Newton's assessment and recommendation.
{¶ 5} IAC delivers chemotherapy to brain tumors by means of an arterial catheter threaded through whichever artery is feeding the area of the brain where the tumor is located and into the brain. The purpose of IAC is to deliver substantially higher doses of chemotherapy directly to the affected tumors without subjecting the rest of the body's organs to the drugs' toxicity.
{¶ 6} Beginning in April 1997, Esther began a course of IAC. She had IAC treatments in early April and early May. The IAC treatments seemed to be working for Esther, shrinking the tumors, relieving pain, and alleviating symptoms. An MRI taken on June 5, 1997, after the first two treatments, showed that the largest of the three tumors had shrunk significantly, a second had also shrunk, and a third had nearly disappeared. She underwent another round of IAC on June 10 and 11, 1997, and, again, tolerated the procedure well. Dr. Newton scheduled a fourth procedure for June 30 and July 1, 1997.
{¶ 7} It is the fourth procedure and its aftermath that is the focus of this case. Anthem decided, after approving and paying for the first three treatments of a planned 12-treatment program, that it would no longer pay for Esther's IAC treatments. Although Anthem's decision to halt payment for treatments was reported to Dr. Newton just before the fourth treatment, he and the Dardingers decided to move forward with that treatment, assuming that Anthem's denial was merely a glitch in the system. Esther received her fourth IAC treatment on June 30 and July 1. Newton planned to appeal Anthem's denial through Anthem's administrative process.
{¶ 8} Anthem believes that the only glitch in its system was in allowing the first three IAC treatments to proceed. Anthem places the blame for that decision on its medical director for the Columbus area, Dr. Stanley Borg. Before Esther's first treatment, Anthem had requested the opinion of a professional consultant and board-certified oncologist, Dr. John Pancoast. However, Dr. Pancoast was out of town and would not return before Esther's first IAC treatment.
{¶ 9} With Dr. Pancoast unavailable, Dr. Borg exercised his own authority and preapproved payment for one IAC treatment. After its own Columbus Area Medical Director precertified the first treatment, two of Anthem's nurses precertified payment for the next two IAC administrations.
{¶ 10} By the time of the fourth treatment, Dr. Pancoast had become available to review Dr. Newton's request for precertification of Esther's fourth IAC cycle. An Anthem precertification nurse sent Dr. Newton's June 24, 1997 request for the treatment to Dr. Pancoast for his opinion. According to Dr. Pancoast's records, he spent ten minutes reviewing the request. His records also reflected that he had approved IAC for another of Dr. Newton's brain tumor patients (that patient's tumor was primary, not metastatic) just before his denial of Esther's IAC. Dr. Pancoast felt that Dr. Newton had no scientific literature to show that the treatment was nonexperimental in the treatment of brain metastases. Dr. Pancoast recommended that Anthem decline payment for the treatment.
{¶ 11} On June 27, 1997, Anthem informed Dr. Newton that payment for the requested IAC would be denied because the treatment was experimental. Anthem's reasoning for denying payment for the procedure changed over time. In a letter sent to Dr. Newton's office the same day as the phone call, Anthem said that coverage was denied because IAC should be done on an outpatient rather than inpatient basis. In other correspondence, Anthem cited the reasons for its denial as "not meeting medical policy for `Off-Label Use of Drugs,'" because "the services do not meet the criteria of our medical policy," and because the drugs had not been approved for the treatment requested.
{¶ 12} Upon learning that Anthem had denied coverage, the Dardingers immediately tried to get Anthem to reconsider. On July 2, the Dardingers' insurance agent from Ohio Benefits Group, Tammy Kornja, spoke with Stephanie Hughes, an Anthem service representative, regarding the denial. Hughes told Kornja that she should have Dr. Newton call Anthem to speak to a physician about the situation. Kornja called Anthem again on July 17 to check on the status of the situation, but Hughes had nothing to report.
{¶ 13} Plaintiff, Bob Dardinger, was also trying to get answers from Anthem. On July 7, he called Anthem and talked to Beth Jones, a precertification nurse. While understanding that OSU would be handling the official appeal of Anthem's decision, Bob called to see what he could do to expedite the situation. He wondered why the treatment that Esther's doctor said would give her the best chance to survive had been refused by Anthem. He was told to talk to his doctor, that OSU would be handling the appeal, and to wait out the appeals process.
{¶ 14} OSU began preparing for the appeal internally as of July 1, 1997. Mary Ann Slivka, a nurse working with Dr. Newton, wrote a letter to OSU's Patient Care Resource Management ("PCRM") Department requesting its assistance on Esther's appeal. She gave the department background on Esther's treatment and Anthem's reasons, as stated in its telephone call of June 27, for denying coverage. She wrote another letter to the PCRM Department on July 7, since Anthem's letter of denial had stated a different reason — that the service did not require an inpatient admission — than Anthem had given in its original phone call. Carol Barnett, an OSU PCRM employee, was assigned to write the appeal.
{¶ 15} Toward the end of July, Esther was feeling well enough for the Dardingers to take a vacation sightseeing and hiking in Kentucky and Tennessee. On July 29, Esther had another MRI, and Dr. Newton was encouraged by the results. Esther's third and fourth cycles of IAC had kept her stable with perhaps a little more shrinkage. Newton testified that Esther was still living a "pretty full" life, while trying to work and handle domestic activities. Dr. Newton testified that "her quality of life was still good."
{¶ 16} Meanwhile, Kornja had called Anthem again on July 24, and Hughes told her that Esther's procedure had been approved. Kornja immediately called Bob, but she was not able to reach him until July 31. Bob told Esther that same day, and they believed that they were "back on track."
{¶ 17} Esther and Bob's enthusiasm over their belief that Anthem would pay for the continuation of IAC treatments was short-lived. On August 12, Kornja received a call from Hughes and Rae Schmidt, an "internal service person" from Anthem. Hughes told Kornja that she had erred in telling Kornja that Esther's treatment had been approved.
{¶ 18} The task of telling Esther fell to Bob:
{¶ 19}
{¶ 20} Esther was "crushed" by the news.
{¶ 21} The Dardingers met with Dr. Newton in August to discuss options. Dr. Newton recommended continuing with IAC. He did not want...
To continue reading
Request your trial
-
Perrine v. E.I. Du Pont De Nemours And Co.
...suffer significant physical injury as a result of the defendant's conduct. As the Court reasoned in Dardinger v. Anthem Blue Cross and Blue Shield, 98 Ohio St.3d 77, 781 N.E.2d 121 (2002):There is a philosophical void between the reasons we award punitive damages and how the damages are dis......
-
Whetstone v. Binner
...to bring about the twin aims of punishment and deterrence as to that defendant. (Emphasis added.) Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 178. We have also stated that the “purpose of punitive damages is to punish the offending party......
-
Clark v. Chrysler Corp.
...149 S.W.3d 325, 348 (2004), cert. denied, 543 U.S. 940, 125 S.Ct. 320, 160 L.Ed.2d 249 (2004); Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 781 N.E.2d 121, 140 (Ohio 2002); Cherokee Elec. Coop. v. Cochran, 706 So.2d 1188, 1194 2. Indifference to or Reckless Disregard of t......
-
Whetstone v. Binner
...it will take to bring about the twin aims of punishment and deterrence as to that defendant. Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 102, 2002-Ohio-7113, 781 N.E.2d 121.{¶ 17} In the instant case, as set forth above, the trial court denied Appellant's claim for punit......