Tudor v. Metropolitan Life Ins. Co.

• Decision Date: 27 March 1989
• Citation: 143 Misc.2d 180,539 N.Y.S.2d 690
• Parties: Melvin TUDOR, Plaintiff v. METROPOLITAN LIFE INSURANCE CO., Defendant.
• Court: New York District Court

Page 690

539 N.Y.S.2d 690

143 Misc.2d 180

Melvin TUDOR, Plaintiff v. METROPOLITAN LIFE INSURANCE CO., Defendant.

District Court, Nassau County First District, Civil Part.

March 27, 1989.

Melvin Tudor, New Hyde Park, pro se.

Rita B. Gylys, New York City, for defendant.

DANIEL PALMIERI, District Court Judge.

Plaintiff has sued for reimbursement under his health insurance policy with defendant for laboratory charges incurred on three separate occasions: September 2, 1987, for mercury vapor testing, in the amount of $125.00; $875.00 for blood laboratory work performed in August 1986, and $425.00 for blood laboratory work performed in August 1987. The mercury vapor test was performed by a dentist and the blood tests by a laboratory. All tests were performed at the request of the plaintiff's physician, Dr. Miklos Boczko.

The defendant has refused to pay the charges on the ground that they are excessive in cost and not medically necessary.

Dr. Boczko testified as a witness for the plaintiff and Dr. Jerry Howard testified as a witness for the defendant. Also testifying were the plaintiff and Brian Flanagan, the defendant's plan administrator.

The policy provides in substance that "Covered Medical Expenses" are the "Reasonable and Customary Charges" for covered medical services performed or supplies prescribed by a Doctor due to sickness. A "Reasonable and Customary Charge" is the lowest of the actual charge, the usual charge or the prevailing charge in the geographic area. Covered Medical Expenses must be "Medically Necessary" and include inter alia, services of Doctors and diagnostic lab procedures. Exclusions from coverage are services which are not "Medically Necessary" in terms of generally accepted medical standards, experimental services or supplies and approximately 19 other items not relevant here.

Courts have uniformly held that where the provisions of a policy are clear and unambiguous, they must be given their plain and ordinary meaning, Courts should refrain from rewriting the agreement, the policy must be construed in favor of the insured and ambiguities, if any, must be resolved in favor of the insured and against the insurer. U.S.F. & G. v. Annunziata, 67 N.Y.2d 229, 501 N.Y.S.2d 790, 492 N.E.2d 1206 (1986). It is the insurer who bears the burden of proving that an exclusion is applicable. Utica Mutual Ins.Co. v. Prudential Prop. and Cas. Ins. Co., 103 A.D.2d 60, 477 N.Y.S.2d 657 (2nd Dept.1984).

The practice of medicine is defined as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition", N.Y. Education Law Section 6221, and only a person licensed or otherwise authorized may use the title "physician." N.Y. Education Law Section 6522.

The outer limits of coverage were established in Zuckerberg v. Blue Cross, 108 A.D.2d 56, 487 N.Y.S.2d 595 (2nd Dept.1985), affm. 67 N.Y.2d 688 (1986), where in evaluating treatment given to cancer patients in a Mexican clinic, the Court ruled that the treatment of cancer with a dietary regimen of certain fruits, vegetables, medications, digestive aids and vitamins (and in some cases Laetrile) came within the policy exclusion for "experimental" in the sense that its effectiveness is not generally recognized.

Plaintiff's physician testified that he treats the whole person, with biochemical methods and emphasis on elemental deficiencies and food allergies. There has...