Betty Sue Odom v. Blue Cross Blue Shield of South Carolina, C/A No.: 6:92-3029-3 (D.S.C. 1993) - decided April 13, 1993 – United States District Court for the District of South Carolina – Robert E. Hoskins

This case is very special to me as it is one of the first two ERISA cases I ever won.  I began handling ERISA cases in about 1990 or 1991, and I really did not have a firm grasp of the statute, at first.  Along came this and another case against Blue Cross Blue Shield of South Carolina.  In both cases, the issue was whether a particular medical treatment was “experimental” and, therefore, excluded under the applicable insurance policy.  In both cases, I represented the plaintiffs.  I worked very hard and ultimately I had to try each case.  The other case that I consider to be a companion to Odom, Palmer v. Blue Cross Blue Shield of South Carolina, culminated in a trial before the Honorable Henry M. Herlong, Jr. who ruled with the plaintiff that the treatment my client sought (Interleukin II) was not “experimental/investigational” under the ERISA governed Blue Cross Blue Shield health insurance policy.  However, Judge Herlong ruled from the bench after a non-jury trial in Palmer and there is not a formal written order in that case.  Odom was assigned to the Honorable G. Ross Anderson, Jr.  Susie Odom was a participant in an ERISA governed health insurance plan which was insured by Blue Cross Blue Shield of South Carolina.  Ms. Odom suffered from breast cancer and her oncologist had recommended and prescribed that she undergo high dose chemotherapy supported by a peripheral stem cell rescue.  Blue Cross Blue Shield, which insured the ERISA plan, denied Odom’s claim asserting that the treatment was “experimental / investigational” and, therefore, excluded under the terms of its policy.  After a several day bench trial in which the court considered evidence and testimony outside the scope of the administrative record, Judge Anderson ruled with Odom that the treatment was not excluded or “experimental / investigational”.  To view a copy of Judge Anderson’s order, click here. 

Blue Cross Blue Shield appealed the decision to the United States Court of Appeals for the Fourth Circuit.  In his order, Judge Anderson ruled that even though he would review the Blue Cross claim decision under a deferential standard of review, he would, also, factor into his review a conflict of interest under which Blue Cross operated in reaching its claim decision.  Judge Anderson’s holding was one of the primary issues which Blue Cross Blue Shield sought to press on appeal to the Fourth Circuit.  On August 18, 1993, the Fourth Circuit issued its seminal ERISA decision, Doe v. Group Hospitalization Services, 3 F.3d 80 (4^th Cir. 1993), holding that a conflict of interest is a material factor for the court’s consideration of an ERISA claim decision under a deferential standard of review.  The court also held that ambiguities in an ERISA plan are construed against the drafter of the contract even under a deferential standard of review when there is a conflict of interest present.  Literally, by the day after the issuance of the Doe decision, Odom was settled on confidential terms.  To this day, Doe remains good law in the Fourth Circuit.  I was not involved in the Doe case, but did represent Odom in her case.

After winning the decision for Ms. Odom, I received a slew of requests to handle denied benefit claims for people seeking high dose chemotherapy treatment.  Throughout the 1990s, I would try such cases resulting in many published decisions as discussed in this section.