Karaskiewicz v. Blue Cross and Blue Shield of Michigan, Docket No. 60037

• Decision Date: 01 August 1983
• Docket Number: Docket No. 60037
• Citation: 126 Mich.App. 103,336 N.W.2d 757
• Parties: Thomas KARASKIEWICZ, D.C., d/b/a Karas Clinic, P.C. and George Dey, Jr., D.C., d/b/a George Dey, Jr., D.C.P.C., Plaintiffs-Appellants, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 757

336 N.W.2d 757

126 Mich.App. 103

Thomas KARASKIEWICZ, D.C., d/b/a Karas Clinic, P.C. and George Dey, Jr., D.C., d/b/a George Dey, Jr D.C.P.C., Plaintiffs-Appellants, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellee.

Docket No. 60037.

Court of Appeals of Michigan.

Submitted Nov. 16, 1982.

Decided March 15, 1983.

Released for Publication Aug. 1, 1983.

Robert Dean, East Lansing, for plaintiffs-appellants.

Ralph D. Gilpin, Detroit, for defendant-appellee.

Before WAHLS, P.J., and KELLY and LAMBROS ^*, JJ.

PER CURIAM.

Plaintiffs Thomas Karaskiewicz and Karas Clinic, P.C., and George Dey, Jr., and George Dey, Jr., D.C.P.C., appeal as of right from a judgment of no cause of action in favor of defendant, Blue Cross and Blue Shield of Michigan (BCBSM). The present action arises out of BCBSM's refusal to pay for certain services performed by plaintiffs, chiropractors and their chiropractic professional corporations, pursuant to Blue Cross and Blue Shield of Michigan's Series A77 Group Health Care Benefit Certificate (A77).

BCBSM maintains a unique relationship with persons seeking contractual health care benefits (subscribers) and with the various health care professionals (providers). Usually, as is the circumstance in the present case, BCBSM, after devising a plan in accordance with a collective bargaining agreement, will contract individually with the individual subscriber. In turn, the provider individually contracts with BCBSM to first seek payment for services rendered to subscribers from BCBSM. The provider is bound to bill BCBSM only for services covered by the contract between BCBSM and the subscriber. Conversely, BCBSM is bound to pay the provider only for those services between BCBSM and the subscriber. See generally, Blue Cross & Blue Shield of Michigan v. Ins. Comm'r, 403 Mich. 399, 270 N.W.2d 845 (1978). The present action concerns only BCBSM's contractual liability to pay chiropractic providers for certain diagnostic procedures. ¹

The trial court found in favor of BCBSM with respect to each procedure. We review to determine if the trial court's findings were clearly erroneous. Jensen v. Pontiac, 113 Mich.App. 341, 317 N.W.2d 619 (1982).

Section I-28 of A77 provides:

" 'PHYSICIAN' is a doctor of medicine (M.D.) or osteopathy (D.O.) legally qualified and licensed to practice medicine and perform surgery at the time and place services are performed. For the purposes of this contract, a dentist, a podiatrist, or a doctor of chiropractic who is legally qualified and licensed to practice dentistry, podiatry, or chiropractic at the time and place services are performed is deemed to be a physician to the extent that the doctor renders services which the doctor is legally qualified to perform."

Section VIII-B-14 provides:

"DIAGNOSTIC LABORATORY AND PATHOLOGY SERVICES:

"a. Benefits are provided for laboratory and pathological examination for the diagnosis of any condition, disease, or injury. In addition to examinations of blood, tissue, and urine, diagnostic laboratory and pathology include laboratory procedures such as electrocardiograms, electroencephalograms, electromyograms, and basal metabolism tests. Routine laboratory services in connection with normal maternity care are provided according to the provisions of Section VII B-4."

Plaintiffs argue that under the above quoted provisions and this Court's decision in Cotter v. Blue Cross & Blue Shield of Michigan, 94 Mich.App. 129, 288 N.W.2d 594 (1979), lv. den. 408 Mich. 947 (1980), defendant was obligated to pay them for the five tests in question. We disagree.

In Cotter, a contractual definition of "physician", substantially similar to the provision involved in the present case, was construed. The issue before the Court was whether the plaintiffs' were legally authorized by MCL 338.156; MSA 14.596 to perform the services for which payment was sought. In the present case, however, we need not decide whether plaintiffs were legally authorized to perform the five procedures for which payment is now sought. Included in section X of A77 are the following provisions:

"K. MEDICAL NECESSITY: Benefits are not provided for services, care, treatment, or supplies which are not medically necessary according to accepted standards of medical practice for the treatment of any condition, injury, disease, or pregnancy, except as specifically provided for in this certificate.

"L. RESEARCH OR EXPERIMENTAL SERVICES: Benefits are not provided for care, services, supplies, or devices which are experimental or research in nature.

Thus, the question here is whether the trial court clearly erred in finding that the five treatments were excluded under the contract.

The diagnostic tests in question are (1) thermogram studies of the spine; (2) thermovision studies and analysis; (3) moire contour analysis studies; (4) plythesmagraphic studies of the extremities; and (5) doppler blood velocity studies of the extremities. With regard to the first three tests, plaintiffs' evidence showed that the tests were useful to chiropractors in diagnosing nerve impingements due to spinal subluxations, nerve interference within the spine, and nerve aggravation. However, defendant presented evidence which showed that these three tests were considered experimental. In light of the conflicting evidence, we cannot say that the trial judge clearly erred in finding that these three tests were not payable under the contract.

We also cannot find clear error in the trial court's conclusion that the remaining two tests were not medically necessary when administered by a chiropractor. The evidence at trial showed the plythesmagraphic study to be a pulse volume recording. By means of a light sensor attached to a patient's fingers or toes, the instrument recorded the volume of the patient's pulse. Plaintiffs justified the use of the test by chiropractors on the ground that irregular pulse patterns could indicate constricted blood vessels due to spinal nerve impingement. Similarly, plaintiffs justified the use of the doppler blood...