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KULAKOWSKI v. ROCHESTER HOSPITAL SERVICE

December 17, 1991

REBECCA KULAKOWSKI, PLAINTIFF,
v.
ROCHESTER HOSPITAL SERVICE CORPORATION AND GENESEE VALLEY MEDICAL CARE, INC., D/B/A "BLUE CHOICE", DEFENDANTS.



The opinion of the court was delivered by: Telesca, Chief Judge.

DECISION AND ORDER

INTRODUCTION

The plaintiff Rebecca Kulakowski ("Mrs. Kulakowski") is a 34-year old woman who suffers from metastatic breast cancer. In late October 1991, Mrs. Kulakowski requested pre-approval from defendants (collectively, "Blue Choice") for a course of treatment for her cancer which involves the combined use of high doses of chemotherapy and an autologous bone marrow transplant ("HDC/ABMT"). Several weeks later, her request was denied. She then commenced this action pursuant to 29 U.S.C. § 1132(a)(1)(B)*fn1, seeking to enforce her rights as a beneficiary of a health insurance plan administered by Blue Choice.

Presently before me is Mrs. Kulakowski's motion for a preliminary injunction to require Blue Choice to pay for her HDC/ABMT treatment. A hearing on the motion was held Wednesday, December 11, 1991, and written final submissions were filed Friday, December 13, 1991. For the reasons discussed below, plaintiff's motion for a preliminary injunction is granted.

FACTS

Mrs. Kulakowski is a covered beneficiary under a health care and hospitalization insurance plan issued by Blue Choice and maintained by her husband's employer. The terms of this plan are contained in a written contract (the "Contract") which is annexed to the complaint. As discussed in more detail below, in relevant part the Contract expressly excludes coverage for "experimental procedures*fn2."

Mrs. Kulakowski's cancer was first discovered in February 1989. She underwent a left mastectomy in April 1989; chemotherapy and radiation therapy followed, through January 1990, when she achieved a remission. Her remission ended in the summer of 1991 and in the fall of 1991, a swollen lymph node was removed from Mrs. Kulakowski's neck. Her treating oncologist, Dr. James Rooney, diagnosed metastatic breast cancer and referred Mrs. Kulakowski to Dr. John DiPersio, the Director of the Bone Marrow Transplant Clinic (the "Clinic") at Strong Memorial Hospital, Rochester, New York.

The Clinic specializes in providing HDC/ABMT treatment to cancer patients. HDC/ABMT is a procedure by which bone marrow stem cells are extracted ("harvested") from the patient's body and frozen in storage while the patient receives massive doses of chemotherapy to destroy the cancer. Such doses, although universally acknowledged as more effective in destroying cancer cells, would be fatally toxic to bone marrow left in place during the course of chemotherapy. After the chemotherapy is completed, the patient's own bone marrow is reintroduced into his system.

HDC/ABMT was first used to treat a number of other types of cancer, including leukemia, lymphoma, and Hodgkins Disease (a form of lymphoma). Many health care insurance providers, including Blue Choice, provide coverage for HDC/ABMT for lymphomas, leukemia, and neuroblastoma. While the application of HDC/ABMT in cases of breast cancer is a more recently developed treatment, many other health care insurers, including major insurers in the Western New York area, do provide coverage for such treatment.

When Dr. Rooney recommended that Mrs. Kulakowski seek treatment at the Clinic, he was intimately familiar with her condition and the treatments she had already undergone. Before accepting her as a patient at the Clinic, Dr. DiPersio both reviewed Mrs. Kulakowski's medical records and examined her personally. Both Dr. Rooney and Dr. DiPersio have stated that HDC/ABMT offers Mrs. Kulakowski the best chance of achieving and maintaining remission from her present cancer and her only chance of a "long-term" remission, which is the medical euphemism for a cure for a disease with a miserably low cure rate. In opening argument, plaintiff's counsel stated that breast cancer will strike one out of every nine American women and that 45,000 American women die from it each year.

The cost of HDC/ABMT at the Clinic currently averages $92,000. Before it will commence the treatment, the Clinic requires either substantial payment or a letter from the patient's health insurer indicating that coverage will be provided. In a letter dated October 17, 1991, Dr. DiPersio formally requested authorization and pre-certification for a course of treatment ("protocol") for Mrs. Kulakowski at the Clinic which included both chemotherapy and an autologous bone marrow transplant — that is, he sought assurances that Blue Choice would cover Mrs. Kulakowski's HDC/ABMT.

In November 1991, Blue Choice denied coverage to Mrs. Kulakowski. The denial came in an 8-page letter from the Medical Director of Blue Choice, Dr. Joseph Stankaitis. Dr. Stankaitis had never seen or examined Mrs. Kulakowski, but based on a review of both her records and applicable medical literature, he opined that HDC/ABMT as proposed for her would be "experimental" and, therefore, excluded from coverage under the Contract. After reviewing the steps which Blue Choice had taken in making its decision to deny coverage, Dr. Stankaitis stated to Mrs. Kulakowski:

  We have concluded that although the treatment
  offered to you may be promising in view of the
  alternatives currently available to you,
  autologous bone marrow transplantation for
  metastatic breast cancer is, at this time, under
  continued scientific ...

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