Whitman v. Weinberger

• Decision Date: 03 October 1974
• Docket Number: Civ. A. No. 487-72-R.
• Citation: 382 F. Supp. 256
• Court: U.S. District Court — Eastern District of Virginia
• Parties: William E. WHITMAN, Administrator, etc. v. Caspar WEINBERGER, Secretary, Health, Education & Welfare.

382 F. Supp. 256

William E. WHITMAN, Administrator, etc. v. Caspar WEINBERGER, Secretary, Health, Education & Welfare.

Civ. A. No. 487-72-R.

United States District Court, E. D. Virginia, Richmond Division.

October 3, 1974.

Benjamin C. Ackerly, Richmond, Va., for plaintiff.

Dennis W. Dohnal, Asst. U. S. Atty., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

This action brought by William E. Whitman, as adminstrator of the estate of his late father, William R. Whitman, seeks review of a final decision of the Secretary of Health, Education and Welfare which holds that plaintiff is not entitled to have payment of hospital insurance benefits made on his behalf for services provided to William R. Whitman at the Libbie Rahabilitation Center, Inc. Jurisdiction of this Court is attained pursuant to § 1869(b) of the Social Security Act, 42 U.S.C. § 1395ff(b). The plaintiff and the defendant have each moved for summary judgment.¹ Upon the pleadings and record before it, the Court deems the matter ready for disposition.

The sole issue before the Court is whether the final decision of the Secretary is based upon substantial evidence.² See 42 U.S.C. § 405(g). The function of the Court in this regard is neither to try the case de novo, nor to resolve mere conflicts in the evidence. The Court is duty bound, however, to give careful scrutiny to the whole record to assure that there is a sound foundation for the Secretary's decision, and that his conclusion is rational. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).

The facts in this matter are not disputed. William R. Whitman, at age 74, was admitted to the Retreat for the Sick Hospital, Richmond, Virginia, on April 9, 1970, with a diagnosis of left hemiplegra. He was then transferred to the Libbie Rehabilitation Center on April 26, 1970, where he remained until discharged on July 8, 1970.

By letter of August 21, 1970, the Department of Health, Education and Welfare notified Mr. Whitman that it was unable to pay the claim for hospital insurance benefits submitted on his behalf by Libbie. The reason given by the Department for denying Mr. Whitman's claim was:

The type of care you received during this stay was general institutional care which assisted you to meet your personal needs of daily living . . . . This care does not require the continuous supervision on a 24-hour basis of a professional nurse. Such care is excluded under the Medicare Law. (Tr. 150)

Mr. Whitman, by counsel, requested a hearing before an examiner on March 4, 1971 (Tr. 27). After a considerable delay, during which Mr. Whitman died, a hearing was held on January 28, 1972. At that hearing, Dr. Joseph G. Rhode, who had been Mr. Whitman's personal physician, testified as to Mr. Whitman's medical history.

Dr. Rhode stated that Mr. Whitman had suffered a cerebral vascular accident in 1965 which left Mr. Whitman completely paralyzed on his left side. He did remain self-ambulatory, however, with the use of a tripod walking cane.

Approximately one year later, Mr. Whitman suffered a heart attack and was admitted to the Medical College of Virginia for treatment. While Mr. Whitman's recovery was described as "unremarkable," he again remained self-ambulatory with the aid of his cane. (Tr. 41-42).

Sometime thereafter, Mr. Whitman experienced a bowel obstruction for the treatment of which he was admitted to the C. & O. Hospital in Clifton Forge, Virginia. The bowel lesion was biopsied and was found to be a villus adenoma, or a premaligant tumor. The surgeons at Clifton Forge performed a colostomy but did not remove the primary obstructing lesion.

During the latter part of 1968, Mr. Whitman returned to Richmond. Dr. Rhode testified that he was concerned that the lesion might develop into a malignancy and, therefore, arranged for Mr. Whitman to undergo a succession of surgical procedures at Richmond Memorial Hospital. This series of four or five operations was performed over the period of a year and resulted in the removal of the lesion and the repair of Mr. Whitman's bowel (Tr. 42-43).

Dr. Rhode testified that during Mr. Whitman's convalescence at Richmond Memorial, he began to lose his ability to ambulate due to muscle atrophy resulting from a lack of physical therapy. At the same time, Mr. Whitman began to suffer from muscle contractures which caused a great deal of deformity and disability. Dr. Rhode then attempted to reinstitute physical therapy in order to prevent Mr. Whitman's becoming bedridden. These efforts were partially successful and Mr. Whitman was discharged and permitted to return home (Tr. 43).

Dr. Rhode continued that while Mr. Whitman was at home, his elderly wife was unable to adequately perform the type of therapy necessary to prevent the deterioration of his physical condition. Mr. Whitman's muscle contractures and weakness became increasingly severe to the point where he was no longer ambulatory. These muscle contractures were also associated with spasms and a considerable amount of pain (Tr. 44).

Mr. Whitman was then admitted to the Retreat for the Sick Hospital for the primary purpose of initiating intensive physical therapy. At Dr. Rhode's request, Mr. Whitman was also seen by a neurosurgeon, Dr. George Johnson, to determine if other neurological conditions existed which might hamper Mr. Whitman's recovery. It was Dr. Johnson's opinion that vigorous continuous physical therapy and muscle relaxant medications were the appropriate treatment (Tr. 45).

During the period of his hospitalization at Retreat for the Sick, Mr. Whitman's condition progressed, in terms of relaxing the muscle contractures, to the point where Dr. Rhode believed Mr. Whitman could be placed in a nursing home for further therapy. Mr. Whitman was then transferred to Libbie for the primary purpose of continuing an intensive physical therapy program (Tr. 45-46).

Mr. Whitman's initial evaluation at Libbie on April 27, 1970 indicated he was still unable to walk even with considerable support. The physical therapy exercise program planned for Mr. Whitman was as follows: "Will try to gain cooperation for developing capabilities for transferring from lying to sitting to standing. Try to gain standing balance and go through attempts to walk in parallel bars." (Tr. 135).

Hospital records submitted to the hearing examiner indicated that Mr. Whitman received physical therapy treatments on May 1, May 5, May 15 and May 19, 1970. Mr. Whitman, however, displayed a somewhat discouraged and uncooperative attitude and refused all physical therapy treatments from May 20, 1970 until he was discharged (Tr. 136-138). At hearing, Dr. Rhode testified that when he learned of the difficulty experienced by the physical therapist, he attempted to point out that it was a part of the therapist's responsibility to ovecome this type of problem in dealing with older patients. Dr. Rhode's efforts were apparently unsuccessful (Tr. 46-47).

Nurses' notes during the period of Mr. Whitman's hospitalization at Libbie reveal that he was up in a chair, uncooperative, and had quiet nights (Tr. 98-115). Medication records reveal that Mr. Whitman received daily injections of imferon for iron deficiency anemia from April 27 until May 4, 1970, when they were discontinued. Mr. Whitman also received an injection of valium on May 6, 1970. All other medications given to Mr. Whitman were administered orally (Tr. 120-134). The discharge summary prepared at Libbie indicated that Mr. Whitman had been admitted to Libbie for continued physical therapy with ambulation being the ultimate goal. This summary noted that he was being discharged after two and one-half months, improved but not ambulatory (Tr. 90).

The only other medical evidence adduced at hearing was the testimony of Dr. William R. Irby who served as medical advisor to the examiner. Dr. Irby testified that the actual levels of services received by Mr. Whitman at Libbie were not of the level contemplated to be covered by the Health Insurance Program. Dr. Irby also testified that if the services and treatment which were planned by Dr. Rhode had been carried out, then they would have been of the high level of care contemplated by the Social Security Act (Tr. 51-52).

On the basis of the evidence presented, the hearing examiner determined that Mr. Whitman was entitled to hospital insurance benefits (Tr. 15-22). Subsequently, upon its own motion, the Appeals Council reviewed the award and on July 27, 1972 it reversed the examiner's decision (Tr. 3-11). William E. Whitman commenced this action within sixty days of notification of the Appeals Council decision in order to seek review of what is, by virtue of the Appeals Council determination, the Secretary's final decision.³

The precise issue in this matter is whether the record provides substantial evidence to support the Secretary's decision that the care admininstered to Mr. Whitman while at Libbie was custodial in nature and, therefore, non-reimbursable pursuant to § 1862(a) of the Social Security Act, 42 U.S.C. § 1395y(a)(9). If, however, the Court finds the "custodial care" exclusion was erroneously applied to Mr. Whitman, then it is clearly within the Court's power to modify or reverse the decision of the Secretary without remanding the case for a rehearing. 42 U.S.C. § 405(g).⁴

While the Social Security Act⁵ does not define "custodial care" beyond the meaning imparted by the words themselves, see 42 U.S.C. § 1395y(a)(9), the Appeals Council in its decision in this matter has noted that "custodial care" is generally defined as:

(C)are designed essentially to assist an individual to meet the activities of daily living. Such activities include assistance in bathing, feeding, and supervision of medication which can usually be self-administered. These services do not require the continuing attention of trained medical or paramedical personnel. Where the primary purpose of the care furnished an individual is supportive and to assist

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