Peggy Jo Mashburn v. Office of Civilian Health and Medical Program of the Uniformed Services, et. al., 1994 U.S. Dist. LEXIS 19779 (M.D. Tenn. 1994) – decided August 4, 1994 – United States District Court for the Middle District of Tennessee – Robert E. Hoskins

Three cases should be dealt with together in this website. They are Luanne Gripkey v. Mail Handlers Benefit Plan, et. al., 1994 U.S. Dist. LEXIS 20619 (D.S.C. 1994), Peggy Jo Mashburn v. Office of Civilian Health and Medical Program of the Uniformed Services, et. al., 1994 U.S. Dist. LEXIS 19779 (M.D. Tenn. 1994), and Helga A. Hawkins v. Office of Civilian Health and Medical Program of the Uniformed Services, et. al., 1994 U.S. Dist. LEXIS 20671 (W.D. NC 1994). In each case, I represented the plaintiff (in Gripkey, the plaintiff had her own personal attorney, Vickie Eslinger of Columbia, who was the named attorney). In each case, the plaintiff suffered from breast cancer and was covered, through her husband, with CHAMPUS. Each of the three cases was very important at the time. However, subsequent to issuance of each of the three opinions, the Fourth Circuit issued its published decision in Wilson v. OCHAMPUS, 65 F.3d 361 (4th Cir. 1995) which, from a legal standpoint, somewhat diminished the importance of each of the above three decisions. (Click here to view the discussion of Wilson from this site. The attached published decision cited each of the above three cases.) Each of the above three cases had a little twist of its own which made it somewhat interesting. For instance, in Gripkey, the order the Judge issued granted a temporary injunction prohibiting the insurer from refusing to pay for the treatment during the pendency of the litigation (as opposed to the court ruling with the plaintiff on the merits). In both Mashburn and Hawkins, there was a co-defendant, Mail Handlers Benefit Plan, and the court refused to grant injunctive relief or rule with plaintiff on the merits against Mail Handlers. However, in both cases, the presiding judges either granted injunctive relief or ruled with plaintiff on the merits against CHAMPUS. (CHAMPUS is not subject to ERISA because it is a governmental plan. See discussion of CHAMPUS and why it is not subject to ERISA in the context of Wilson from this site; click here.)

In any event, all three cases were good victories in the string of litigation against CHAMPUS over coverage for high dose chemotherapy in the treatment of breast cancer which culminated with the Fourth Circuit’s Wilson decision. (Click here to view Gripkey; click here to view the Mashburn opinion; click here to view the Hawkins opinion.)

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)