Sluiter v. Blue Cross and Blue Shield of Michigan
| Decision Date | 01 August 1997 |
| Docket Number | No. 97-73609.,97-73609. |
| Citation | 979 F.Supp. 1131 |
| Parties | Vicki L. SLUITER, Plaintiff, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Elizabeth Gleicher, Detroit, MI for Plaintiff.
Michael Vartanian, Detroit, MI, for Defendant.
This matter comes before the Court on motions for preliminary injunctions in two separate cases, Vicki L. Sluiter v. Blue Cross and Blue Shield of Michigan, (No. 97-73609), and Eva Navarro v. Blue Cross and Blue Shield of Michigan, . Due to the similarities in the cases, this Court combined them for evidentiary hearings and oral argument on July 29 and 30, 1997. For the reasons that will be detailed below, this Court hereby grants both motions for a preliminary injunction.
Each of the Plaintiffs has been diagnosed with breast cancer. According to data from the Michigan Department of Public Health, more than 5,000 women in Michigan are diagnosed each year with breast cancer. Ex. 1 to Defendant's Response Briefs. It is the most common form of cancer and second most common form of cancer deaths in women. Approximately 1,500 women died from the disease in 1986.
Breast cancer is classified into four stages based on several factors, including the size of the tumor, how far the disease has spread, and whether the tumors are operable. Stage I cancer is characterized by small tumors within the breast, with no lymph nodes involvement. Patients with stage I breast cancer have a high five year disease free survival rate, as high as eighty percent. Stage II breast cancer involves larger tumors, not to exceed 5 cm, and may include maligning of the lymph nodes. The five year disease free survival rate for stage II breast cancer varies from 40 to 80 percent depending on the size of the tumor and the number of nodes involved. A patient is classified as having stage III breast cancer if the tumor is more than five centimeters in size. A patient is diagnosed as having stage IV breast cancer once the cancer has spread outside of the breast. The survival rates for stage IV patients is low. Before the development of high dose chemotherapy, stage IV "essentially resulted in the death of all patients who had that stage and extent of the disease." (Dr. Peters).
Both of the Plaintiffs have stage III breast cancer. There are two sub-sets of stage III breast cancer. A patient is diagnosed as III-A if the tumor is operable upon initial presentation. A patient is III-B if the tumor is not operable, often due to its attachment to the skin or chest wall. These patients are usually treated with chemotherapy in order to shrink the tumor and make surgery possible. Stage III-B breast cancer is the most rare form, and it affects less than five percent of all patients. Typically, Stage III-B breast cancer is found in younger women, and it is described as an "inflammatory" breast cancer because of the unusually aggressive tumors. Survival rates for stage III-A breast cancer patients are slightly lower than for stage II patients, and the same factors affect the chances of recovery. The two main factors are the size of the tumor and the number of lymph nodes involved. Patients with III-B breast cancer have a four to forty percent chance of five-year disease-free survival.
One possible course of treatment for breast cancer patients is high dose chemotherapy. As the name suggests, extremely high dosages of cancer fighting drugs are given to the patient. At these high dosages, however, the drugs are also toxic to other portions of the patient's body, including the bone marrow. For this reason, this treatment is always combined with a form of bone marrow replacement. Some physicians perform "autologous bone marrow transplantation." In this process, healthy bone marrow is collected from the patient before chemotherapy by inserting needles into the patient's hip. The bone marrow cells are frozen until after the chemotherapy, at which point they are returned to the patient's body. A second bone marrow harvesting procedure, peripheral stem cell rescue, has come into more widespread use in recent years. In this procedure, bone marrow cells are taken directly out of the blood of the patient. While this may not yield as many bone marrow stem cells, the procedure is less painful and invasive, and the cells are more "mature" than those taken from the hip.
The use of high dose chemotherapy has increased rapidly for breast cancer patients in recent years. Several thousand patients receive the treatment each year. In fact, it is the most common reason for performing a bone marrow transplant. The Defendant has acknowledged that it is no longer an experimental or investigational course of treatment for stage IV breast cancer patients and has paid for the procedure since March of 1996. Increasingly over the last ten years, doctors have also been treating stage II and III patients with high dose chemotherapy.
Eva Navarro is a 45 year old woman with Stage III-B breast cancer, diagnosed in February of 1997. Initially, she was placed in neo-adjuvant chemotherapy in order to shrink the tumor and allow surgery. She responded to this treatment and then had a mastectomy. Following the surgery, Ms. Navarro was referred to Harper Hospital, where she was evaluated by the oncology and transplantation groups at the Karmanos Cancer Institute. At this time, Ms. Navarro had already had a 10 percent reduction in cardiac function as a result of conventional chemotherapy. Additional conventional treatment did not appear to be an appropriate option because of the likely additional impact on cardiac function, which would then disqualify her from receiving high dose chemotherapy with a stem cell rescue. Her treating physician, Dr. Jared Klein, recommended that Ms. Navarro receive high dose chemotherapy because of her high risk of recurrence.
Ms. Navarro is the beneficiary of a certificate of health care coverage issued by the Defendant, Blue Cross and Blue Shield of Michigan. Her physicians contacted Blue Cross in order to obtain pre-authorization for the high dose chemotherapy treatment. On June 4, 1997, Blue Cross denied coverage for this treatment on the grounds that it is "experimental/ investigational". Ms. Navarro's physician appealed this decision, but Blue Cross never responded. She is not currently undergoing any treatment for her cancer and could likely begin a high dose chemotherapy regimen within a short period of time.
Vicki Sluiter is a 35 year old woman with Stage III-A breast cancer.1 She recently had a mastectomy during which her physician removed a tumor approximately the size of a golf ball. Thirteen of eighteen lymph nodes sampled were positive for cancer, and her physicians recommended that Ms. Sluiter undergo high dose chemotherapy.
Ms. Sluiter is a beneficiary of a certificate of health care coverage issued by the Defendant, Blue Cross. Her physicians contacted Blue Cross to obtain pre-authorization for this treatment. Blue Cross denied coverage on June 11, 1997, claiming the treatment was "experimental/investigational in the treatment of this member's breast cancer and excluded as a benefit under the terms of the certificate and relevant riders." After Ms. Sluiter's physician appealed this decision, Blue Cross reasserted its position by letter on June 23. While she is awaiting the outcome of this motion, the Plaintiff is not receiving any treatment. She is currently eligible to begin her prescribed high dose chemotherapy regimen.
Both Plaintiffs filed suit on July 3 in Wayne County Circuit Court, where their motions for preliminary injunction were scheduled for July 31. The cases were removed by the Defendant on July 23 because they involve claims for benefits under 29 U.S.C. § 1132(a)(1)(B).2 Plaintiffs filed their motions for preliminary injunction in this Court on July 28. Each contends that Mich. Comp. Laws Ann. §§ 550.1416 and 550.1416a require Blue Cross to provide coverage for her treatment. Each side has submitted briefs on the legal issues presented in this motion. In addition, the Court heard testimony from expert witnesses during evidentiary hearings held on July 29 and 30.
The availability of injunctive relief is a procedural question that is governed by federal law. Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir.1991). The Sixth Circuit has held that a court must consider four factors in deciding whether to issue a preliminary injunction:
1. whether the movant has shown a strong or substantial likelihood of success on the merits;
2. whether the movant has demonstrated irreparable injury;
3. whether the issuance of a preliminary injunction would cause substantial harm to others; and
4. whether the public interest is served by the issuance of an injunction.
Parker v. United States Dep't of Agric., 879 F.2d 1362, 1367 (6th Cir.1989). The foregoing factors should balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). Where the three factors other than the likelihood of success all strongly favor issuing the injunction, a district court is within its discretion in issuing a preliminary injunction if the merits present a sufficiently serious question to justify a further investigation. Id. at 1230. Alternatively, the court may also issue a preliminary injunction if the movant "at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued." Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1270 (6th Cir.1985) (citations omitted).
Blue Cross argued in its response to the motions for a preliminary...
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