Response Oncology, Inc. v. The Metrahealth Insurance Company, 978 F.Supp. 1052 (S.D. Fla. 1997) – decided July 29, 1997 – United States District Court for the Southern District of Florida – Robert E. Hoskins

I represented the plaintiff, Response Oncology.  Response Oncology was a medical provider who administered high dose chemotherapy supported by a peripheral stem cell rescue (HDC/PSCR) to individuals suffering from various types of cancer.  MetraHealth was the insurer or claims administrator of various ERISA and non-ERISA plans in which 67 Response Oncology patients participated.  Response Oncology was dissatisfied with MetraHealth’s method of reimbursement for its services and in this suit, I tried to group 67 different cases into one.  In a published decision, the court held that I could not do that and dismissed all of the cases, but one, with prejudice.  I have included this opinion in this case log because it is published and to make the following comment.  (Click here to see the published opinion.)  Why the court published this opinion is absolutely beyond me.  There is nothing interesting about the opinion nor does it deal with any legal issue that would warrant publication.  Moreover, the order was set aside by a subsequent order dated November 6, 1997.  The second order was not published.  (Click here to see the second order.)  When you check the subsequent history of the published order, there is no reference to it being set aside.  I guess I have included this in here to “set the record straight” to the extent that I can.  The order, being published, remains on the books as precedent, but in reality, the published order was set aside and should be of no precedential value whatsoever.  The case actually went on for approximately another three years after the published order dismissed all of the cases “with prejudice” because the order was changed by subsequent order.   Fortunately, the published order has not been cited very frequently so little harm has come of the unfortunate situation.

As an interesting end note to this case and all of the cases where I represented individuals seeking health insurance coverage for individuals to undergo HDC/PSCR in the 1990s, I would highly recommend the article “We Were All Sold A Bill of Goods: “Litigating the Science of Breast Cancer Treatment””, Jacobson and Doebler, 52 Wayne L. Rev. 43, Spring 2006.  In that article, the authors provide an excellent discussion about the litigation boom over HDC/PSCR for breast cancer in the late 1980s and particularly in the 1990s.  They cite to six or seven of my cases which are discussed in this case log in analyzing the causation of the 1990s litigation boom.  The article begins:

“In the late 1980s and 1990s, thousands of women elected to undergo high-dose chemotherapy with autologous bone marrow transplant (HDC-ABMT) as a last chance treatment for breast cancer, despite the fact that the procedure cost upwards of $100,000 and was also expensive in terms of risks and side effects.  When their health insurers refused to cover the treatment, many women sought payment through the judicial system.  The result was a series of nearly a hundred courtroom battles, not to mention thousands of settlement negotiations, in which judges and juries were forced to determine whether women would have access to a new procedure that offered their only hope for survivial.  Without it they would almost certainly die.  By the time studies were published conclusively showing that the procedure was ineffective, more than 30,000 women had already received the treatment, which often shortened their lives and added to their suffering, at a total cost of approximately $3 billion. 

What went wrong?  Howe could so much money have been spent and such suffering imposed for no apparent benefit?  The natural reaction to these devastating accounts is to assign blame.  Depending on one’s political and philosophical views, blame might be apportioned in the following ways.  First, in their quest to slash costs and raise the bottom-line, health insurers and managed care organizations ignored the needs of their policyholders.  Second, physicians pressured their patients into undergoing a procedure with essentially unknown risks and benefits, in a desperate attempt to give them at least a few more years of life.  Third, plaintiffs’ attorneys saw the opportunity to make the insurers pay - - both literally and figuratively - - for their cold-heartedness and pursued these cases aggressively.  Finally, courts, moved by the plight of the dying women who came before them, let sympathy trump the law.

These attempts to apportion blame are certainly plausible and accord with the conventional wisdom which views lawyers and the courts as especially culpable.  In this Article, we question the conventional system.  We examine the role that attorneys and the court system played in this unfortunate set of outcomes and explores alternatives to avoid replicating these results in the future.” (52 Wayne L. Rev. 43, 44, 45) 

Personally, I am very pleased that the authors concluded:

“In the end, it is hard to blame the attorneys for what occurred.  Each attorney represented his or her client in a manner that professional ethics demands and each acted with the best of intentions.  Was their advocacy overly aggressive under the circumstances?  Arguably so.  But keep in mind the reality that the patient had what amounted to a death sentence and chose to undertake a risky procedure as a last chance. 

As a society, we have yet to reach a balance between individual access to last chance therapies and the costs to society.  The nation’s culture of technology is embedded too deeply to accept limits very easily.  Like it or not, the legal system performed as it is designed to do-to protect individual litigants - - even if the judiciary is not the best forum for resolving controversial clinical scientific disputes.  Are we prepared instead to delegate that responsibility to insurers? We doubt it.  A much better alternative is for policymakers to focus on improving the technology assessment process and funding randomized control trials to determine a procedure’s effectiveness before its widespread diffusion into medical practice.” (52 Wayne L. Rev. 43, 111, 112)