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