Hasty v. Central States, Southeast and Southwest Areas Health and Welfare Fund, 851 F.Supp. 1250 (N.D. Ind. 1994) – decided May 16, 1994 – United States District Court for the Northern District of Indiana, Fort Wayne Division – Robert E. Hoskins

I represented Hasty.  This is one of a number of cases in which I represented a plaintiff in the 1990s who sought coverage for a medical procedure known as high dose chemotherapy supported by a peripheral stem cell rescue (HDC/PSCR).  I lost this case and not surprisingly so.  The law in the Seventh Circuit in the 1990s was extremely insurance company/plan friendly on the issues of coverage for HDC/PSCR.  The outcome seemed a foregone conclusion, but you have to represent your client nonetheless.  I remember this case very well though because of another issue.  In its opinion on the merits, the court made a statement that I took, at the time, to be a personal attack on me.  In addressing one of my arguments, the court stated:

“The court questions whether R.T. Inc., its physicians, plaintiff and plaintiff’s attorney belief that HDC/PSCR is an integrated or disjointed procedure depends on medical facts or how best to obtain payment?  To adopt different litigation strategies under similar circumstances in different cases on this particular point does not lend credibility to plaintiff’s argument in the instant case.  The court will not begin its own partitioning of the Plan and the proposed treatment at the troke of the last bell.  The court’s limited roll in the instant case is to determine whether the Board of Trustees acted arbitrarily or capriciously when it decided that the entire proposed treatment was not covered by the C-6 Health Benefits Plan.”  (Click here to view the full opinion.) 

I was young at the time the Hasty opinion came out (I had only been out of law school for about four years) and I felt that the aforementioned statement by the court questioned my ethics and I find it particularly distasteful that the court would include the plaintiff in the list of people who he “questioned” as she had nothing to do with the litigation strategy.  At the time, I interpreted the above statement to be gratuitous, unnecessary and mean spirited.  I filed a motion to reconsider the court’s order and I was thankful that the court clarified its position.  In a second published opinion, the court stated:

“However, nothing in this court’s Order denying plaintiff’s Motion for Summary Judgment should be construed as advocating that plaintiff’s attorneys did anything unethical or improper.  As noted supra, plaintiff did not cite Wheeler for any other purpose than for the opinion of Dr. Cheson.  Plaintiff’s attorneys merely made a strategic decision advancing that particular argument while zealously representing their client.  The court simply declined to follow plaintiff’s reasoning.”  (Click here to view the full second opinion.) 

What is particularly strange to me about the court’s initial statement is the court’s criticism that I, as an advocate, might formulate my argument based upon “how best to obtain payment”.  As an advocate in litigation, trying to do just that (i.e., “obtain payment”) I think it was ethically my duty to put forth legal arguments that might best accomplish that goal.  I am not a doctor and I am certainly not qualified to render any opinion or view as to how a procedure might be viewed medically.  However, deciding how best to argue that there should be coverage for my client under the specific language of a particular plan is exactly what I am called upon to do as an attorney advocate.  As any ERISA practitioner knows, a party’s rights to benefits are almost wholly dependent upon the specific language of the plan at issue.  As an attorney representing a party in an ERISA case, it is my duty to analyze the specific language of the particular plan at issue and then argue based upon the given facts as best as I can to try and get my client coverage (payment).  ERISA plan participants are already at a big enough disadvantage (i.e., the standard of review) without courts questioning their ethics or morality in advocating a legitimate legal argument.  ERISA participants do not choose the language of the plans in which they participate (the administrators, sponsors or insurers do) and the standard of review that courts are forced to employ is very anti-claimant.  One of the only things that an advocate can do is analyze the specific language of a policy at issue and, if the facts are right, make arguments to the court as to why the language should be applied a particular way as the court noted in Mattive v. Healthsource of Savannah, Inc., 893 F.Supp. 1556 (S.D. Ga. 1995) (click here to view this sites discussion of Mattive).  In fact, I made the same argument as in Hasty in several other cases and in some sense, I feel vindicated by the wisdom of the Fourth Circuit, about a year later, in recognizing that coverage for HDC/PSCR should be viewed based upon the specific language of the plan at issue.  ((Click here to see discussion in Bailey v. Blue Cross Blue Shield of Virginia, 67 F.3d 53 (4th Cir. 1995) and Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507 (4th Cir. 1994).)  In both Hendricks and Bailey, the Fourth Circuit analyzed coverage issues, including whether HDC/PSCR should be viewed as a unified treatment or by its separate component parts, based solely upon the specific language of the particular plan document at issue. 

To this day, Hasty sticks out in my mind because of the harshness of the court’s initial opinion.  Another interesting point is that I had the exact same case against the same defendant about two months after the Hasty decision and that case settled amicably.  That case was in a different federal circuit.

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)