Hymel v. Hmo of Louisiana, Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Welch
• Citation: Hymel v. Hmo of Louisiana, Inc., 951 So.2d 187 (La. App. 2006)
• Decision Date: 15 November 2006
• Docket Number: No. 2006 CA 0042.,2006 CA 0042.
• Parties: Christiane Gullung Hymel, Wife of/and Charles Stewart HYMEL, Jr. and Their Minor Children, Myles Stewart Hymel and Abigail Pattin Hymel and Her Minor Child, Caitlyn Elizabeth Williams v. HMO OF LOUISIANA, INC. d/b/a HMO Louisiana, Inc.

951 So.2d 187

Christiane Gullung Hymel, Wife of/and Charles Stewart HYMEL, Jr. and Their Minor Children, Myles Stewart Hymel and Abigail Pattin Hymel and Her Minor Child, Caitlyn Elizabeth Williams v. HMO OF LOUISIANA, INC. d/b/a HMO Louisiana, Inc.

No. 2006 CA 0042.

Court of Appeal of Louisiana, First Circuit.

November 15, 2006.

Writ Denied February 16, 2007.

Paul A. Lea, Jr., Covington, for Plaintiffs Appellees/Cross-Appellants Christine Gullung Hymel, et al.

Richard J. Tyler, Amy L. Glovinsky, New Orleans, Charles A. O'Brien, Baton Rouge, for Defendants Appellants HMO Louisiana, Inc.

Before: KUHN, GAIDRY, and WELCH, JJ.

WELCH, J.

This is an appeal by the defendant, HMO of Louisiana, Inc. d/b/a HMO Louisiana, Inc. ("Blue Cross"¹), from a judgment rendered in favor of the plaintiffs, Christiane Gullung Hymel, Charles Stewart Hymel, Jr., and their minor children, finding Blue Cross liable for damages; penalties, and attorney fees, because it refused to pre-certify and denied Mrs. Hymel's claim for a medically necessary MRI scan, which resulted in a three month delay in the diagnosis and surgical removal of a malignant tumor in Mrs. Hymel's spinal cord. The plaintiffs have answered the appeal, seeking an increase in the awards for future medical expenses and attorney fees. For reasons that follow, we amend the judgment, and as amended, affirm.

I. FACTUAL HISTORY

Christiane and Charles Hymel have been married for approximately ten years. Together, they have two children, and Mrs. Hymel has one child from a previous marriage. Sometime after the birth of Mrs. Hymel's third child in 1999, she began experiencing back and neck pain, which she attributed to the epidural she received during childbirth and to the position she held her neck while feeding her baby.

In late November and early December of 1999, Mrs. Hymel sought treatment for her back and neck pain with a chiropractor, Dr. H.J. "Nicky" Nicaud, Jr. After several office visits/treatments with Dr. Nicaud, Mrs. Hymel's pain subsided. In August 2000, the back and neck pain returned and Mrs. Hymel again sought treatment with Dr. Nicaud. During the time periods that Mrs. Hymel treated with Dr. Nicaud, neither Mrs. Hymel nor her husband had a policy of health insurance or other health benefit plan.

In mid-2000, after efforts to obtain health insurance through Mr. Hymel's employer had failed due to disinterest among the other employees, Mr. and Mrs. Hymel decided to purchase an individual health insurance policy for themselves. Mrs. Hymel placed a telephone call to Blue Cross and spoke to Mr. William Artell, the Blue Cross agent "on duty." Due to the high cost of obtaining health insurance for Mr. Hymel, because he was a smoker and had other medical problems, the Hymels chose to obtain a policy for Mrs. Hymel only. Thereafter, Mr. Artell went to Mrs. Hymel's home, and he assisted her in completing an application for individual health coverage. On the application, Mrs. Hymel chose an individual point of service² ("POS") policy, rather than a health maintenance organization³ ("HMO") policy, and she designated Dr. Jacques L. Guillot as her primary care physician. Mrs. Hymel's application was submitted to Blue Cross on September 29, 2000, and thereafter, Blue Cross issued the POS policy to Mrs. Hymel with an effective date of October 15, 2000.

Having obtained coverage, Mrs. Hymel scheduled an appointment with her primary care physician for a routine check-up and physical examination. On October 20, 2000, during this examination, Mrs. Hymel reported to Dr. Guillot her history of back pain and pain/weakness in her legs over the past year and a half. Dr. Guillot ordered and obtained x-rays of Mrs. Hymel's cervical and lumbar spine,⁴ and then he referred Mrs. Hymel to Dr. Srinivas Ganji, a neurologist.

On November 13, 2000, Mrs. Hymel went to see Dr. Ganji. During the office visit, Dr. Ganji performed several clinical tests on Mrs. Hymel, including the "Babinski" test.⁵ Although Dr. Ganji noted Mrs. Hymel's complaints of prior back and neck pain, Dr. Ganji was more concerned with other deficits in her neurological functioning and believed that that Mrs. Hymel was suffering from a "demyelinating disorder," such as multiple sclerosis. Accordingly, he ordered an MRI scan of Mrs. Hymel's cervical, thoracic, and lumbrosacral spine.⁶

Dr. Ganji's office scheduled the MRI for December 5, 2000, and in accordance with Mrs. Hymel's policy, sent Blue Cross a request to pre-certify the service/diagnostic test with a "diagnosis code" of multiple sclerosis. Blue Cross then requested and obtained Mrs. Hymel's medical records from Dr. Guillot, which noted her history of back pain, but it did not request Mrs. Hymel's records from Dr. Ganji, who actually ordered the MRI scan. On December 4, 2000, Blue Cross denied the request to pre-certify the claim for the MRI on the basis that the service was for a pre-existing condition, i.e. Mrs. Hymel's back pain, and therefore, the service was not covered under the terms of the policy. On December 6, 2000, Mrs. Hymel appealed Blue Cross's decision in accordance with the terms of her policy. Although Blue Cross received the appeal on December 14, 2000, it never processed the appeal.

After Blue Cross denied the request for the MRI, Mr. and Mrs. Hymel were told that the MRI would cost them approximately $4,000.00. Approximately three months later, when Mr. and Mrs. Hymel had accumulated most of the necessary funds to pay the expense themselves, an MRI scan was performed on Mrs. Hymel's spine on March 2, 2001.⁷ The results of the MRI indicated that Mrs. Hymel had "[e]xtensive syringomyelia" involving "nearly the entire cervical and thoracic [spinal] cord." Upon receiving and reviewing the results of Mrs. Hymel's MRI, Dr. Ganji immediately referred her to Dr. Deepak Awasthi, a neurosurgeon.

After Dr. Awasthi reviewed the results of the MRI scan, he diagnosed Mrs. Hymel with a tumor located inside her spinal cord (or an "ependymoma"⁸) which spanned both the cervical and thoracic spinal cord, with a cystic or "fluid filled" cavity (or a "syringomyelia"). Dr. Awasthi immediately scheduled Mrs. Hymel for surgery in order to remove the tumor. Blue Cross denied the request for the surgical procedure by Dr. Awasthi on the basis that it was for a pre-existing condition, and it also denied the accompanying request for hospital admission based on "medical need."

Notwithstanding Blue Cross's denial of the claims for the requested services, Dr. Awasthi agreed to and did perform surgery on Mrs. Hymel on March 30, 2001, at the Medical Center of Louisiana at New Orleans (also known as "Charity Hospital"). Due to the size of the tumor and the accompanying difficulty in its surgical removal, Mrs. Hymel sustained permanent injuries to her spinal cord resulting in several permanent disabilities. Additionally, in 2004, Mrs. Hymel's tumor recurred, and a second surgery was performed. Blue Cross paid for all services associated with Mrs. Hymel's second surgery.

II. PROCEDURAL HISTORY

On October 24, 2001, Mr. and Mrs. Hymel and their children instituted this action against Blue Cross,⁹ alleging that Blue Cross was liable to them for the damages sustained by Mrs. Hymel, for penalties and for attorney fees due to its failure to comply with La. R.S. 22:657, for its breach of the POS policy (contract), and for its general negligence. Blue Cross answered the petition, setting forth affirmatively that it had acted prudently, reasonably, and with probable cause in rejecting the claims of Mrs. Hymel; that the condition for which Mrs. Hymel was treated was a "pre-existing condition" under the terms of the policy, and therefore excluded from coverage; that the plaintiffs had no cause or right of action under La. R.S. 22:657; and that the plaintiffs had no claim for bodily personal injuries arising from the alleged breach of contract. Alternatively Blue Cross contended that if coverage existed under the contract, then the only benefits payable were those in accordance with the policy/contract and the contracts between Blue Cross and the health-care providers, without regard for the amount of Mrs. Hymel's medical bills.¹⁰

On February 2, 3, and 4, 2005, the matter was tried before a jury.¹¹ After the conclusion of the evidence but prior to charging the jury, the parties stipulated that the trial court would determine whether La. R.S. 22:657(A) and (D) were applicable to the plaintiffs claims against Blue Cross, and thereafter, depending on the verdict of the jury, would determine the amount of penalties and attorney fees to be awarded.

The jury's verdict unanimously found that Mrs. Hymel did not have a "pre-existing condition" as defined by the contract; that the defendant failed to perform its obligations under the contract with Mrs. Hymel, which resulted in an unreasonable denial of proposed medically necessary services to Mrs. Hymel; that the defendant was not in bad faith in failing to perform its obligations under the contract with Mrs. Hymel; that the health insurance contract was not intended to gratify a nonpecuniary interest of Mrs. Hymel; that the failure of the defendant to perform its obligations under the contract was a direct and proximate cause of the damages sustained by Mrs. Hymel; and that Mrs. Hymel sustained damages as follows:

  Physical injuries including pain and
                  suffering                               $   50,000.00
                  Mental anguish and loss of enjoyment
                  of life                                 $2,000,000.00
                  Past medical expenses                   $   69,830.43
                  Future medical expenses                 $   15,000.00
                

Immediately thereafter, the trial court rendered judgment finding that the provisions of La. R.S. 22:657(A) and (D) were applicable to the POS policy issued by Blue Cross to Mrs. Hymel. After a subsequent hearing on the issue of penalties and attorney fees, the trial court awarded Mrs. Hymel penalties in the amount of...