Mattive v. Healthsource of Savannah, Inc.

• Decision Date: 11 July 1995
• Docket Number: Civ. A. No. CV495-134.
• Citation: 893 F. Supp. 1559
• Parties: Palma MATTIVE, Plaintiff, v. HEALTHSOURCE OF SAVANNAH, INC., Defendant.
• Court: U.S. District Court — Southern District of Georgia

893 F. Supp. 1559

Palma MATTIVE, Plaintiff, v. HEALTHSOURCE OF SAVANNAH, INC., Defendant.

Civ. A. No. CV495-134.

United States District Court, S.D. Georgia, Savannah Division.

July 11, 1995.

COPYRIGHT MATERIAL OMITTED

Robert E. Hoskins, Foster & Foster, Greenville, SC, and local counsel Joseph P. Brennan, Brennan & Wasden, Savannah, GA., for plaintiff.

H. Sanders Carter, Jr. and Michael A. Coval, Carter & Ansley, Atlanta, GA, for defendant.

ORDER

MOORE, District Judge.

This matter comes before the Court on Plaintiff's Motion for a Preliminary Injunction requesting that the Court enjoin Defendant Healthsource of Savannah, Inc. ("Healthsource") from denying Plaintiff pre-certified coverage for a cancer treatment known as High Dose Chemotherapy with Peripheral Stem Cell Rescue ("HDC/PSCR"). The Court held a hearing on June 26, 1995. For the following reasons Plaintiff's motion is GRANTED.

Background

On June 8, 1995, Plaintiff Palma Mattive filed a Complaint in the Superior Court of Chatham County, Georgia, claiming that she is entitled to a preliminary and permanent injunction enjoining Defendant from denying pre-treatment coverage approval. Plaintiff is a former employee of Publix Supermarket, Inc. ("Publix") having ceased employment on February 28, 1995. As of January 1, 1995, Defendant Healthsource was providing health benefits to Plaintiff through a Group Subscriber Agreement whereby Plaintiff participated in a health management organization ("HMO"). The benefits provided to Plaintiff were part of an employee welfare benefit plan provided by Publix. As a former employee of Publix, Plaintiff elected to continue coverage of her health benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Pub.L. No. 99-272, Title X, Section 10001. This continuation of coverage took effect on March 1, 1995, and is still in effect. (Def.'s Ltr. to Ct., June 23, 1995). Plaintiff brings this case based on the ERISA governed policy.¹ In September 1994, Plaintiff was diagnosed as having Stage IV metastatic² breast cancer.³ Plaintiff seeks to undergo the HDC/PSCR procedure at the Impact Center of Response Technologies, Inc. in Savannah, Georgia.

Plaintiff has presented an affidavit of Charles Weaver, M.D., an oncologist at the Fred Hutchinson Cancer Research Center in Seattle, Washington⁴ which, along with the testimony of Dr. Parker, the Court has used to learn about the process of HDC/PSCR. HDC/PSCR includes several stages. The first stage is the administration of low doses of chemotherapeutic agents. During the second phase of treatment, moderate doses of standard chemotherapeutic agents are administered and the body will produce extra amounts of components of the blood known as stem cells in the bone marrow. These stem cells are released into the blood stream. Immediately subsequent to the second stage, the extra stem cells are removed by a procedure known as leukapheresis, a procedure by which stem cells are extracted from the patient's blood. The stem cells will then be frozen and stored in liquid nitrogen.

Subsequent to the leukapheresis stage, the patient will receive high doses of standard chemotherapeutic agents. Following the administration of the chemotherapeutic agent, the cancer cells should be killed along with the healthy white blood stem cells. After the high dose chemotherapy, the patient will have the previously collected stem cells reinfused into the system so that the body will begin to build the depleted stem cell count. Subsequent to the re-administration of the stem cells, the patient will likely be hospitalized for a short period of observation. However, it is the understanding of the Court that the period of hospitalization could range from two weeks to one month. Plaintiff's attorney represented at the hearing that hospitalization of the Plaintiff will probably be necessary due to her age. Plaintiff is fifty-one years old. (Pl.'s Aff., ¶ 1). Plaintiff is currently undergoing standard dose chemotherapy.

As represented by the parties at the hearing, Plaintiff's request for pre-authorization of coverage from Healthsource was made on March 1, 1995. Said claim was denied by telephone on that same day and was denied by letter dated March 3, 1995. The letter stated that Healthsource was unable to provide coverage for the requested HDC/PSCR based on sections 4.1(18) (bone marrow transplant exclusion) and 4.1(13) ("experimental and investigational" procedures exclusion) of the Group Subscriber Agreement. (Pl.'s Mem. in Supp. of Mot. for Injunctive Relief, Ex.). Plaintiff represents that she consistently communicated with Healthsource representatives during the months of March, April, and May and appealed the denial of coverage in early May. The parties stated that Plaintiff's appeal was denied by letter on May 9, 1995.

Plaintiff submits the affidavit of Colleen Garvey, Director of Reimbursement and Managed Care Supervisor for Response Technologies, Inc. The affidavit states that it is the policy of Response Technologies to pre-authorize insurance benefits to pay for HDC/PSCR. Absent insurance coverage, Response Technologies requires pre-payment or execution of a security agreement sufficient to guarantee payment. Plaintiff states that she is not able to afford this treatment and that her only means of receiving the treatment is through Healthsource coverage. (Pl.'s Comp., Ex., Pl.'s Aff., ¶ 16).

Healthsource removed Plaintiff's case to this Court by a Notice of Removal filestamped on June 15, 1995. As stated in this Court's Order of June 23, 1995, this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 as the disputed matter is governed the Employee Retirement Income Security Act of 1974 ("ERISA"), Pub.L. No. 93-406, 88 Stat. 832 (1974) (codified as amended at 29 U.S.C. §§ 1001-1461).

Plaintiff's treating physician, Harvey Lebos, M.D., recommended that Plaintiff undergo the HDC/PSCR. During the June 26, 1995, hearing, the undersigned Judge informed the parties that he wished to discuss the time frame for Plaintiff's treatment as the Court had received several different dates represented to be the latest date that treatment could commence.⁵ The Court spoke with Dr. Lebos on the telephone on June 28, 1995. Dr. Lebos informed the Court that Plaintiff should begin treatment "within the next few weeks," but Dr. Lebos could not be specific as to the absolute latest date that Plaintiff can effectively begin treatment. By affidavit, Dr. Lebos had stated, "If Plaintiff does not begin treatment in the near future there is a very real possibility that her health may deteriorate to the point where her body may not be able to withstand the treatment and/or that the treatment will not be nearly as beneficial to the patient." (Pl.'s Comp., Ex.-Lebos Aff. ¶ 17). Dr. Lebos represents that HDC/PSCR represents Plaintiff's best opportunity for long-term survival and remission. (Id. at ¶ 4, 17).

Analysis

Plaintiff has moved for injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. In ruling on a motion for a preliminary injunction, the Court must consider (1) whether there is a substantial likelihood that Plaintiff will prevail on the merits; (2) the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted; (3) whether the threatened injury to the plaintiff outweighs the potential harm to opposing parties; and (4) whether the issuance of a preliminary injunction would be adverse to the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1562 (11th Cir.1989), aff'd sub nom., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). It is the party seeking a preliminary injunction who must establish all of the four requirements. Id. Due to the limited nature of the proceedings resulting in the issuance of a preliminary injunction, any findings of fact and conclusions of law made at this preliminary stage are of no binding effect at the trial on the merits. Clark v. K-Mart Corp., 979 F.2d 965, 969 (3rd Cir.1992) (citing University of Texas v. Camenisch, 451 U.S. 390, 394-95, 101 S.Ct. 1830, 1833-34, 68 L.Ed.2d 175 (1981)).

With little analysis, the Court finds that Plaintiff fulfills three of the factors necessary for granting a preliminary injunction. Plaintiff states that she will suffer irreparable injury, the "loss of health and life within a very short period," (Pl.'s Mem. in Support of Mot. for a Preliminary Injunction, p. 4), if the injunction is not issued. The Court assumes that if Plaintiff was not able to pursue the HDC/PSCR treatment, she would continue to be treated with standard dose chemotherapy. Some documents submitted by Plaintiff to Healthsource state that Stage IV breast cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy show an increased response rate.⁶ (Pl.'s Resp. to Def.'s Mem. in Opp. to Pl.'s Application for Prelim. Inj. Relief, Ex.-Schwartzberg Dep., p. 16-17; Ex.-Letter of Dr. Champlin). Defendant has submitted evidence that shows that irreparable injury may not actually occur if Plaintiff does not undergo HDC/PSCR treatment, i.e, the HDC/PSCR may be no better than the standard level of chemotherapy. However, there is a possibility, indeed Dr. Lebos perceives it to be a strong possibility, that the HDC/PSCR is Plaintiff's best chance for recovery and long term health. (Pl.'s Comp., Lebos Aff. ¶ 21). Indeed, Plaintiff has submitted evidence that shows that cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy has an increased response rate. Due to the chance that Plaintiff may live a longer and healthier life if she undergoes HDC/PSCR, the Court finds that Plaintiff is threatened with irreparable harm if the injunction enabling her to pursue the treatment is not granted.

The threatened injury to Plaintiff's health and life outweighs the potential monetary...