The opinion of the court was delivered by: BONSAL
In this consolidated action, plaintiffs, John Calabria, his wife Faire Calabria, and Frank Spoto are suing Associated Hospital Service, a non-profit New York corporation, for alleged breach of their Blue Cross hospital service contract. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332. A non-jury trial was held on September 19, 1978.
Each of the plaintiffs had a Blue Cross hospital service contract with defendant which was in full force and effect at the time they were denied benefits for hospital treatment at the Hospital of Rehabilitation Medicine in New York City, popularly known as the Rusk Institute ("Rusk").
Each of the contracts between plaintiffs and defendant contained the following clause:
A. Hospital Service Shall Not Be Provided:
4. For a hospital stay or that period of a hospital stay which is primarily for . . . physiotherapy or rehabilitation or any combination thereof, or during which the services rendered to the Subscriber are primarily physiotherapy, rehabilitation services, . . . or any combination thereof.
Effective in April, 1973, defendant amended its hospital service contract to provide rehabilitation benefits for a period of 30 days.
Each of the plaintiffs is seeking payment of benefits in connection with his or her hospitalization at Rusk. Defendant provided benefits to all three plaintiffs in connection with their treatment at other hospitals. Defendant contends that plaintiffs' hospitalization at Rusk was primarily for physiotherapy and rehabilitation services which were expressly excluded from coverage under Article V(A)(4) of the contract.
The following is a brief summary of the hospitalizations of the plaintiffs.
Plaintiff John Calabria, a New Jersey resident, suffered a serious spinal injury on April 17, 1971 which rendered him a paraplegic, with paralysis and loss of sensation of the lower extremities. After an initial period of hospitalization at Mountainside Hospital in Montclair, New Jersey, he was transferred on June 3, 1971 to Rusk.
John Calabria claims benefits for five periods of hospitalization at Rusk. The first three periods from June 3, 1971 to August 10, 1971, from August 11, 1971 to December 12, 1971, and from December 16, 1971 to April 8, 1972 constitute essentially one continuous stay at Rusk which was interrupted by temporary transfers to the adjoining University Hospital facility for treatment of his urological complications.
The discharge summary for the first three periods of hospitalization at Rusk states that John Calabria was initially transferred there for "intensive rehabilitation" and that the treatment for him included "individual physical therapy, progressive resistive exercises, mat activities, and tilt table" and that he underwent treatment there for urological disorders.
Defendant made payment with respect to the first twenty-eight days of his stay at Rusk based upon the attending physician's certification of June 3, 1971 that John Calabria required "acute general hospital services in addition to physical medicine and rehabilitation services because of the following condition(s): traumatic paraparesis with sacral decubitus, neurogenic bowel, bladder." Pursuant to the attending physician's certification of June 30, 1971, that he "no longer requires acute general hospital services in addition to physical medicine and rehabilitation services," ...