Whitehead v. Federal Express Corporation, 878 F.Supp. 1066 (W.D. Tenn. 1994) – decided December 31, 1994 – United States District Court for the Western District of Tennessee, Western Division – Robert E. Hoskins

I represented Whitehead. This was one of many cases from the 1990s where I represented an individual seeking coverage for a medical procedure known as high dose chemotherapy supported by a peripheral stem cell rescue (HDC/PSCR). This was one of the few I lost. In hindsight, there are a couple of reasons for the loss. First, the client had stage II breast cancer as opposed to stage IV. At the time, the medical literature was much more supportive of the efficacy of the treatment for stage IV rather than stage II breast cancer. Second, I had sued a self-funded plan, as opposed to an insurer, and that meant the most stringent standard of judicial review was applicable. In the end, the presiding Judge simply noted that the evidence on both sides was compelling and given the standard of review he could not say that the plaintiff would prevail so as to allow him to issue a temporary injunctive relief. The court stated:

“Given the impressive credentials of all the oncologists whose opposing views were presented to the Committee, there is no legal basis for this court to conclude that the decision of that Committee to reject coverage was without reason, unsupported by substantial evidence or erroneous as a matter of law. Whitworth Bros. Storage, 982 F.2d at 1013; Daniels v. Employees, 758 F.Supp. 326, 331 (W.D. Pa. 1991). There is sufficient evidence for a reasonable person to agree with the Committee’s decision.

 

There is much room for debate on the issue Placed before the Committee. The treatment is extremely expensive and in a significant percentage of patients is fatal. Yet, for a number of oncologists it is the preferred form of treatment and provides the best chance of recovery for their patients. The law, as it is now, however, does not permit the court to substitute its judgment for that of the Committee. There is no allegation in this case of any breach of fiduciary duty and once the determination is made that substantial evidence was offered to, and supports the decision of, the Committee, the court’s obligation to deny the request for a preliminary injunction on this case is clear. There is no basis to conclude that the plaintiff would likely succeed on the merits upon a full trial on the issue of whether HDC/PSCR is medically necessary under the terms of the policy.

 

Moreover, given the established nature of the law setting forth the standard of review as “arbitrary and capricious,” the court cannot hold that the plaintiff has shown a sufficiently serious question going to the merits to make it a fair ground for litigation.”

There was no appeal.

As an interesting end note to this case and all of the cases where I represented individuals seeking health insurance coverage 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)