White v. Caterpillar, Inc.

• Citation: 765 F. Supp. 1418
• Decision Date: 26 June 1991
• Docket Number: No. 91-0535-CV-W-8.,91-0535-CV-W-8.
• Parties: Betty WHITE, Plaintiff, v. CATERPILLAR, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

765 F. Supp. 1418

Betty WHITE, Plaintiff, v. CATERPILLAR, INC., Defendant.

No. 91-0535-CV-W-8.

United States District Court, W.D. Missouri, W.D.

June 26, 1991.

Samuel K. Cullan, Von Erdmannsdorf & Mowry, Kansas City, Mo., for plaintiff.

Paul Scott Kelly, Jr., Gage & Tucker, Kansas City, Mo., for defendant.

ORDER

STEVENS, District Judge.

Plaintiff brought this action on June 13, 1991 seeking injunctive or declaratory relief. Plaintiff was diagnosed in December, 1987 as suffering from breast cancer. She has undergone various treatment programs since then which have proved ineffective in combating the cancer.

Dr. Gary Spitzer, plaintiff's treating physician and the Director of Medical Oncology at St. Louis University School of Medicine, has recommended that plaintiff undergo high dose chemotherapy (HDCT) with autologous bone marrow transplantation (ABMT) treatment. ABMT involves withdrawing the patient's bone marrow and reintroducing it to the body after chemotherapy, thus allowing the patient to receive higher doses of chemotherapy. Dr. Spitzer believes that plaintiff has no chance of survival without HDCT-ABMT treatment, and that with conventional treatment the "disease will continue to progress and she will die." Spitzer Affidavit, Plaintiff Exhibit 3.

Plaintiff is employed by defendant and is insured through defendant's self-insurance program, the Group Insurance Benefits Plan ("Plan"). The Plan provides hospitalization and medical benefits, and qualifies as an "employee welfare benefit plan" under ERISA. 29 U.S.C. §§ 1002(1), 1132(a)(1)(B). Section X of the Plan reads as follows:

If an Employee or Dependant undergoes a procedure which is not listed in the schedule of surgical operations above, the Insurance Carrier or Company shall have the sole and exclusive right to determine whether or not such procedure is a generally accepted surgical operation. The Company or Insurance Carrier will use the reports of the Clinical Efficacy Assessment Project of the American College of Physicians and the Diagnostic and Therapeutic Assessment from the Council on Scientific Affairs of the American Medical Association as a guide to determine whether a surgical procedure is a generally accepted surgical operation.

Defendant Exhibit 3A.

Defendant has denied plaintiff's application for coverage of HDCT-ABMT treatment prescribed by Dr. Spitzer. Defendant contends that the treatment is "investigational" and therefore not a generally accepted surgical operation covered under the Plan. Plaintiff Exhibit 9.

The cost of the treatment is estimated at approximately $195,000. Plaintiff does not have the financial resources to pay for the treatment. The health care facilities that provide HDCT-ABMT treatment require payment in advance or a letter from the health insurer stating that the treatment is covered under the insurer's program. Defendant has denied that the treatment is covered under the Plan.

The court held a hearing on June 17 and 18, 1991 to address plaintiff's motion to enjoin defendant from denying coverage or for declaratory relief that HDCT-ABMT treatment is covered under the Plan.¹ Based on the pleadings filed with the court and the testimony presented at the hearing, the court finds for the reasons stated below that defendant's decision denying plaintiff's application for coverage was arbitrary and capricious, and the court thus will grant plaintiff's motion for injunctive relief.

As a preliminary matter, the court must first determine the appropriate standard for its review in this case. The Supreme Court addressed this issue in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), finding that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." In the latter event, the question becomes whether the decision maker acted arbitrarily and capriciously. Id.

The Plan in this case clearly gives discretion to the administrator to make eligibility determinations. Specifically, the Plan states that defendant "shall have the sole and exclusive right to determine whether or not such procedure is a generally accepted surgical operation." Defendant Exhibit 3A. The court thus finds that an arbitrary and capricious standard of review is appropriate for reviewing defendant's decision that HDCT-ABMT treatment is investigational and therefore not covered by the Plan.

The Plan also provides that defendant will refer to two reports "as a guide to determine whether a surgical procedure is a generally accepted surgical operation," the Clinical Efficacy Assessment Project (CEAP) of the American College of Physicians and the Diagnostic and Therapeutic Technology Assessment (DATTA) from the American Medical Association. Id. Both parties agree that CEAP did not address the efficacy of treating breast cancer with HDCT-ABMT. The dispute at hand thus centers on what DATTA said on this issue, and the extent to which defendant should have relied on any DATTA report.

In a 1985 DATTA report, the following question was asked of DATTA panelists: "Is autologous bone marrow transplantation safe and effective for managing post-treatment (chemotherapy/radiation) bone marrow hypoplasia/aplasia² in patients with: a) solid tumors...." Defendant Exhibit 1. The panel concluded that ABMT is a safe and effective means of treating the side effects of HDCT, but considered it "still investigational" for including in the treatment regimen of solid tumors, such as breast cancer. Defendant Exhibit 1.

DATTA later published a second report in February, 1990 based on information and research available as of November 1, 1989. The same question was asked of the panelists in the second report, except that it did not specifically address solid tumors, but rather "cancer" in general.³

DATTA reported that "the 45 DATTA panelists found that autologous bone marrow transplantation (ABMT) is appropriate for managing post-treatment marrow hypoplasia/aplasia in patients undergoing treatment for cancer. An overwhelming majority of panelists rated the safety and effectiveness of ABMT as established or promising." Defendant Exhibit 2.

Defendant contends that the second report did not specifically revise the earlier report with respect to the efficacy of HDCT-ABMT on solid tumors, such as breast cancer. In support of this position, defendant relies on the following statement in the second report:

Obviously, if the preconditioning regimen is ineffective in eliminating residual disease, then the success of ABMT will be compromised. However, the DATTA panelists were specifically asked to consider ABMT as a supportive measure. These DATTA questions do not address the safety of the preceding invivo chemotherapy or chemoradiotherapy regimens nor their effectiveness in producing tumor cures or remissions, but focus on ABMT as a supportive measure.

Defendant Exhibit 2. Defendant argues that because the second report focused on the efficacy of ABMT as a support measure (i.e. in treating the side effects of HDCT) and did not specifically revise the findings of the 1985 report, those earlier findings are still accurate.

Plaintiff argues that the 1985 report is dated and no longer represents current medical practice. Plaintiff's expert witness, Dr. Christopher F. Sirridge, board certified in internal medicine, oncology and hematology, and an assistant professor of those specialties at the University of Missouri at Kansas City Medical School, testified at the hearing that HDCT-ABMT is now widely recognized and used for treatment of breast cancer in certain patient populations, such as plaintiff's.⁴ Plaintiff also argues that while the 1990 study did not address the efficacy of ABMT as a treatment specifically for breast cancer, the panel convincingly found that it was an appropriate treatment for the very same side effects of treating breast cancer with HDCT.

The question now before the court is whether defendant's determination that HDCT-ABMT is an "investigational" treatment for breast cancer, and its subsequent denial of plaintiff's application for coverage, was arbitrary and capricious. The court is convinced that the answer to that question is affirmative.

In an area of ever-developing medical expertise, defendant steadfastly clung to the results of a five-year old study in denying plaintiff coverage. While the 1990 study should have put defendant on notice that the efficacy of treating breast cancer with HDCT-ABMT was at least debatable and that further examination of the issue by defendant would therefore be prudent, defendant chose instead to bury its head in the sand.

The 1990 DATTA study, however, is clearly not the only recent analysis on the subject that should have caused defendant at least to reexamine its position on the issue. Prior to the hearing of this matter plaintiff had provided defendant with copies of four recent articles⁵ addressing the treatment of breast cancer with HDCT-ABMT. Defendant not only failed to consider the analyses contained in those articles, but from the testimony of Dr. Robert Hertenstein, the Medical Director of Group Insurance for defendant, no one for defendant ever even read the articles.

Defendant responds that the Plan mentions two sources that defendant could consult in its determination, CEAP and DATTA, and not the other sources offered by plaintiff. The court rejects this argument for two reasons. First, the Plan's recognition of these two sources is not exclusive. The Plan states simply that the "Company ... will use the reports of CEAP and DATTA as a guide to determine whether a surgical procedure is a generally accepted surgical operation" (emphasis added). Defendant Exhibit 3A. Nowhere does the Plan state that defendant may use "only" the reports of CEAP and DATTA in making...