Lewis v. Trustmark Ins. Co., 1999 U.S. App. LEXIS 15746 (4th Cir. 1999) – decided July 12, 1999 – United States Court of Appeals for the Fourth Circuit – Robert E. Hoskins

I represented Lewis.  This is one of many cases from the 1990s where I represented an individual seeking health insurance coverage against an ERISA governed plan for high dose chemotherapy supported by a peripheral stem cell rescue (HDC/PSCR).  Fortunately, I won the majority of those cases.  Unfortunately, for Ms. Lewis, hers was one of the few I lost.  At least, I was able to convince one Judge that Ms. Lewis was entitled to coverage.  The first Judge to consider Ms. Lewis’ case ruled with me.  United States Magistrate Judge, the Honorable Joseph R. McCrorey ruled that Lewis was entitled to coverage.  (Click here to see the Federal Magistrate Judge’s opinion.)  The District Court Judge did not adopt the Magistrate Judge’s recommendation and ruled against me.  (Click here to see the District Court opinion)

I appealed and made a number of arguments on appeal, but none of them were successful.  In the end, the United States Court of Appeals for the Fourth Circuit distinguished Lewis’ cause from other precedent addressing the appropriateness of HDC/PSCR for stage IV breast cancer.  I had won a case a few years earlier which resulted in a published opinion that I felt was exactly on-point.  (Click here to see a discussion, from this site, of my case Wilson v. OCHAMPUS, 65 F.3d 361 (4th Cir. 1995).)  The Fourth Circuit distinguished Wilson noting that the language in the ERISA plan at issue in Lewis was different.  The court stated:

“Lewis also argues that the plan administrator abused its discretion by finding that the treatment was experimental.  She asserts that HDC/PSCR was a generally accepted treatment for Stage IV breast cancer.  She points to a South African study indicating HDC/PSCR’s superiority to conventional standard dose treatment.  And Lewis notes that her own treating physician, Dr. Henslee-Downey, stated “unequivocally that HDC/PSCR is a ‘generally accepted’ alternative for the treatment of Stage IV breast cancer.”  Finally, Lewis cites our decision in Wilson v. Office of Civilian Health & Med. Programs of the Uniformed Servs., 65 F.3d 361 (4th Cir. 1995).  In Wilson, this court noted that “HDC/PSCR is gaining widespread acceptance within the medical community” and the evidence suggests “a broad consensus of physicians recognizes [its] efficacy.”  Id. at 366 (internal quotation marks omitted).  Thus, Lewis argues that HDC/PSCR was not experimental and should have been covered by the Trustmark plan.” 

The court found that the specific language of the plan document for Lewis’ ERISA plan was dispositive.  That language read:

“A drug, device or medical treatment or procedure is Experimental . . . if Reliable Evidence shows that the drug, device or medical treatment or procedure is the subject of ongoing Phase I, II, or III clinical trials or under study to determine its maximum tolerated dose, its toxicity, its safety, its efficacy, or its efficacy as compared with the standard means of treatment or diagnosis . . . .”  (Click here to see the Fourth Circuit 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)