Little v. Blue Cross of Western New York, Inc.

• Decision Date: 24 January 1980
• Citation: 72 A.D.2d 200,424 N.Y.S.2d 553
• Parties: John H. LITTLE, Appellant, v. BLUE CROSS OF WESTERN NEW YORK, INC., Blue Shield of Western New York, Inc., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 553

424 N.Y.S.2d 553

72 A.D.2d 200

John H. LITTLE, Appellant, v. BLUE CROSS OF WESTERN NEW YORK, INC., Blue Shield of Western New York, Inc., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1980.

Little & Burt, Buffalo (Benjamin Idziak, Buffalo, of counsel), for appellant.

Falk, Siemer, Glick, Tuppen & Maloney, Buffalo (Richard Marcus, Buffalo, of counsel), for respondents.

Before SIMONS, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

OPINION

WITMER, Justice.

On this appeal we construe a Major Medical Expense Rider issued jointly by Blue Cross of Western New York, Inc. and Blue Shield of Western New York, Inc., defendants herein, to plaintiff on their insurance policies to him in 1975. We hold that Special Term erred in denying plaintiff's motion for summary judgment in his action for reimbursement for the expense that he incurred in the sum of $23,687 for private duty registered nursing services which he employed at his doctor's direction while he was in the hospital and later at home recovering from a heart attack.

Plaintiff, a lawyer 77 years old in March 1979, had suffered from arthritis for years. In 1970 he had operations on both thighs and mechanical hips were implanted. For 10 years he has walked only with the aid of canes.

In 1975 he purchased Blue Cross and Blue Shield insurance policies from defendants and for an additional premium bought a Major Medical Expense Rider thereto. In 1978 he suffered a heart attack and entered Buffalo General Hospital on October 23 where he was treated until December 21. Because of plaintiff's arthritic and hip conditions his doctor determined that he needed more constant nursing attention than the hospital would furnish for the usual heart patient, and he directed that plaintiff employ private duty registered nurses to assist him in his convalescence in the hospital, and plaintiff did so.

The doctor states that because of the services of such private nurses, plaintiff progressed in the hospital more rapidly than he otherwise would have and that by reason thereof, on condition that plaintiff would continue to employ such private duty nurses 24 hours per day at home, the doctor authorized plaintiff to leave the hospital on December 21 and return home, which plaintiff did. There, plaintiff continued to improve, and on February 23, 1979 the private nurse for the night shift was discontinued; on March 30, 1979 the private nurse for the morning shift was discontinued; and on April 14, 1979 the remaining private nurse was discontinued.

In March and April 1979 plaintiff sent to defendants itemizations of his expenses for these nurses in the hospital and at home and requested reimbursement therefor under his insurance policies with them. By letter of June 5, 1979 defendants rejected the claim on the ground that "skilled nursing in addition to that normally provided by the hospital was not required, and there was no medical evidence to support the continuing services of a skilled nurse at home."

In this action plaintiff contends that under the terms of the insurance policies and the Rider thereto he is entitled to reimbursement. Defendants admit many allegations of the complaint but deny on information and belief plaintiff's need of private duty registered nurses and deny knowledge of the extent that such services were performed. Plaintiff thereupon moved for summary judgment and submitted in support thereof affidavits by his doctor, by his nurses in the hospital and at home while convalescing, by plaintiff and his secretary, and by his attorney. Defendants responded with affidavits by a registered nurse as an expert concerning nursing services for a heart patient in a hospital and at home, by a doctor as an expert who had reviewed plaintiff's hospital record and the affidavits for plaintiff on this motion, and by defendants' attorney who cited the terms of the Education Law and Hospital Code of New York with respect to services rendered by registered professional nurses and licensed practical nurses, all concluding that plaintiff did not need the services of the registered nurses whom he employed. Based thereon, defendants contended that questions of fact exist as to plaintiff's need of such skilled services and also as to the adequacy of the certification by plaintiff's doctor that plaintiff needed such services.

Special Term denied the motion and held that defendants have the right under their policies to question the necessity of the skilled nursing services employed by plaintiff and that factual issues exist as to "the necessity and delivery of skilled nursing services for plaintiff."

Plaintiff relies on subparagraph (a), paragraph 1 of Article VI of the Major Medical Expense Rider which provides that subject to provisions not pertinent here an insured shall be entitled to, "Services of a Private Duty Registered Professional Nurse or Private Duty Licensed Practical Nurse...