Simons v. Blue Cross and Blue Shield of Greater New York

• Citation: 144 A.D.2d 28,536 N.Y.S.2d 431
• Parties: Ronald M. SIMONS, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF GREATER NEW YORK, Defendant-Respondent.
• Decision Date: 10 January 1989
• Court: New York Supreme Court Appellate Division

Page 431

536 N.Y.S.2d 431

144 A.D.2d 28

Ronald M. SIMONS, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF GREATER NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 10, 1989.

J. Owen Zurhellen, III, New York City, for plaintiff-appellant.

Richard E. Juzumas, of counsel (Ellen Barrett Levin, New York City), for defendant-respondent.

Before CARRO, J.P., and ASCH, MILONAS and WALLACH, JJ.

MILONAS, Justice:

Plaintiff Ronald M. Simons is the holder of a medical insurance policy issued by defendant Blue Cross and Blue Shield of Greater New York pursuant to which he and his family are entitled to hospital benefits of 120 days of hospitalization in each calendar year for appropriate medical treatment and 30 days of in-hospital care for psychiatric disorders. In 1986, plaintiff's teenage daughter, Amy, who suffers from anorexia nervosa, an eating disorder, was admitted on two separate occasions to Westchester County Medical Center. Although the disease is a psychiatric one, it frequently results in physical infirmities caused by severe malnutrition. However, when plaintiff submitted claims for the cost of Amy's treatment, defendant denied payment for all hospitalization in excess of the first 30 days, asserting that additional coverage was excluded under the psychiatric care limitation contained in the policy. In explaining its action, one of defendant's vice presidents wrote to plaintiff that:

"Anorexia Nervosa" is a psychiatric syndrome properly treated according to generally accepted psychiatric practice which includes individual, group, and family psychotherapy, behavior therapy related to weight gain/loss, eating and physical activity, and the like. Accordingly, it is our policy to consider benefits under the mental or nervous disorders provision of the contract. We do, however, recognize that there are certain times when the effects of this psychological disorder have proceeded to such a point that the patient's physical condition may develop an acute instability requiring immediate attention on a medical/physiological level of treatment. If such care is given in a short term general hospital, we would provide benefits on the specific days the emergency medical care is rendered.

I asked our Medical Director to review the medical records for your daughter's January 2 to February 21, 1986 and May 12 to May 27, 1986 admissions to Westchester County Medical Center. Our Medical Director has confirmed that the services rendered on each day of hospitalization are basically psychiatric in nature. There is no evidence documenting that Amy required emergency care of an acute medical condition. Accordingly, our extension of 30 benefit days (January 2 through January 31, 1986) is correct. Further benefits are not available. Since we extended the maximum number of psychiatric benefit days for the calendar year 1986, we could not provide coverage for Amy's subsequent admission from May 27 to August 30, 1986 at the Westchester Division of New York Hospital.

Plaintiff commenced the instant action to recover $60,000, the amount of the unpaid balance of the cost of Amy's medical treatment. In response, defendant asserted that it had provided the full benefits available under the subject contract and that plaintiff had, therefore, failed to state a cause of action. Plaintiff thereafter moved for summary judgment on the ground that there is no genuine issue concerning the nature of the care and treatment received by Amy. In that regard, it is plaintiff's contention that where the underlying facts are not in dispute, the applicability of an exclusionary clause in defendant's standard form policy is purely an issue of law for the determination of the court, and, thus, the Supreme Court was in error in perceiving the existence of a question of fact such as would preclude summary judgment. Defendant, on the other hand, states that the medical affidavits offered by the parties in connection with the motion are in conflict with respect to the nature of care rendered to Amy, and this in itself presents a question of fact warranting the denial of summary judgment.

An examination of the record herein clearly demonstrates that there is no disagreement over the actual treatment administered to Amy but, rather, whether that treatment is primarily medical in nature, as plaintiff claims, or constitutes psychiatric care, as defendant urges. Dr. D. Clare Fried, who at the time of Amy's first hospitalization was Assistant Professor of Pediatrics in the Division of Adolescent Medicine at New York Medical College, which is associated with Westchester County Medical Center, and participated in her treatment, asserts in an affidavit that when Amy was observed in the emergency room preceding her admission "her weight was 72 1/2 lbs., her blood pressure was very low (90/50). Her weight had been 95-98 lbs. before her disorder. Her doctor (Dr. Newman) recommended admission to the hospital because Amy had lost 7 lbs., almost 10% of her body mass, over the preceding two weeks, and she was admitted on January 2, 1986. Upon her admission, her weight further decreased to 68 lbs. She was emaciated, malnourished, dehydrated and hypotensive. She required immediate medical treatment for these conditions." Dr. Fried further averred that "Amy was given a battery of medical tests to ascertain the extent of malnourishment and the possibility of chemical imbalances. She was fed via naso-gastric tube for a period and then her diet was carefully monitored. She gained weight and the physical conditions associated with malnourishment were alleviated. Amy was evaluated by a psychiatrist during her admission. However, the reason for Amy's admission was entirely medical and her treatment was directed toward alleviating the physical conditions resulting from malnourishment."

According to Dr. Steven M. Tames in his affidavit, "Amy Simons was admitted on an emergency basis to Westchester County Medical Center on May 12, 1986. Her weight was 72 3/4 lbs., her blood pressure was 72/62 and she was significantly dehydrated. She was fed by naso-gastric tube and by intravenous fluids, and various tests were performed to evaluate her physical status. A neurological consultation and evaluation (including a CT scan) was performed to rule out a specific neurological cause (e.g. hypothalmic tumor) of her eating disorder and persistent severe headaches. Her treatment was essentially the same as in her...