possibility of undergoing HDC/ABMT. Upon this recommendation, Mrs. Scalamandre was examined by Dr. Wiernik, who confirmed that HDC/ABMT might indeed be the best treatment for Mrs. Scalamandre.
HDC/ABMT is often an effective method of treating metastatic breast cancer. The response of cancer cells to chemotherapy is proportional to the dose applied, so in order to achieve favorable results in the treatment of breast cancer it is often necessary to employ high dose chemotherapy. Beyond certain doses, however, chemotherapy can destroy the patient's bone marrow and in turn impair the immune system and make the patient vulnerable to the most minute infections. Therefore, in order to be able to employ high dose chemotherapy without endangering the patient, an Autologous Bone Marrow Transplant is performed, where the surgeon surgically extracts about one liter of bone marrow from the patient's lower back, preserves the bone marrow, administers the high dose chemotherapy, and then intravenously introduces the preserved bone marrow back into the patient. Ideally, within a few weeks the bone marrow regenerates while the cancer has been eradicated due to the high dose chemotherapy.
As a prerequisite to HDC/ABMT, it is ordinarily necessary for the patient to have a bone marrow biopsy in order to determine whether or not the bone marrow is healthy and free of cancer. If the biopsy reveals that the bone marrow is healthy and free of cancer, the patient may proceed with the HDC/ABMT.
In the case at bar, Mrs. Scalamandre entered Montefiore Medical Center on July 8, 1991 on an outpatient basis to have the bone marrow biopsy performed. The biopsy showed that the cancer had not spread to Mrs. Scalamandre's bone marrow, so that it was possible to proceed with the HDC/ABMT. Mrs. Scalamandre was scheduled to enter Montefiore Medical Center sometime around July 25, 1991 to begin the procedure.
Before receiving the bone marrow biopsy, the Comptroller of Peter Scalamandre & Sons, Inc., Martin McCarthy, attempted to ensure that the expenses would be covered under the Freedom Plan. As noted above, HDC/ABMT is not specifically excluded as a "non-covered expense" under the Freedom Plan. The Handbook at 50 - 52. Moreover, the treatment is a high dose form of chemotherapy, and chemotherapy is listed as a covered expense under the Freedom Plan without qualification as to the dose level. Id. at 49.
Under the Freedom Plan, to receive full benefits for any elective surgery or hospitalization, an Oxford member must request approval through the Oxford Medical Review Program by submitting to the Medical Director "a statement of the reason for and the anticipated period of Hospital confinement." Id. at 46. At least 14 days advance notice is required. Id. When the member calls for pre-certification, an Oxford Health Services Coordinator will tell the member whether a second opinion will be necessary. Id. at 6. If so, the second opinion will be performed by "a board certified specialist designated by Oxford" and with "no financial stake in Oxford or the recommended procedure." Id.
In accordance with the above-mentioned provisions, Mr. McCarthy telephoned Oxford on behalf of Mrs. Scalamandre on July 3, 1991 to request pre-certification for both the bone marrow biopsy and the HDC/ABMT. (Tr. 601, 667). McCarthy spoke with a Health Services Coordinator at Oxford, Suzanne Adams, R.N., who pre-certified the bone marrow biopsy that was to be performed at Montefiore Medical Center on July 8, 1991. (Tr. 667 - 68). As to the pre-certification of the HDC/ABMT, Suzanne Adams told McCarthy on July 3, 1991 that she could not give McCarthy a pre-certification number at that time because she needed more information about dates and names of physicians. (Tr. 659 - 60). Adams also suggested to McCarthy that Mrs. Scalamandre explore the bone marrow transplant programs at Duke University Medical Center and/or Hahnemann Medical Center. While it is unclear from the testimony whether Adams' suggestion about Duke and/or Hahnemann occurred on July 3 or at a later time,
it is evident that neither Adams nor anyone else at Oxford told McCarthy or anyone else that it was necessary for Mrs. Scalamandre to obtain a second opinion. Moreover, no one gave McCarthy the specific name of a "board certified specialist."
Some time after Mrs. Scalamandre's bone marrow biopsy on July 8, her doctors at Montefiore scheduled her HDC/ABMT to begin on July 25. McCarthy telephoned Suzanne Adams on or about July 24 to inform her that Mrs. Scalamandre was entering Montefiore for the HDC/ABMT. It was at this point, on July 25, that Adams orally informed McCarthy that certification for Mrs. Scalamandre's HDC/ABMT at Montefiore had been denied. Adams suggested (either for the first time or for the second time) that Mrs. Scalamandre investigate similar programs at Duke and/or Hahnemann, but again, did not offer names of physicians at either hospital or provide any written authorization to make an appointment for a second opinion.
Notwithstanding the representation by Suzanne Adams that Oxford would not certify Mrs. Scalamandre at Montefiore, Mrs. Scalamandre entered Montefiore on July 25, 1991. Her stay was for about six weeks, during which time her bone marrow was extracted and she underwent high dose chemotherapy. Her treating physician during this stay was Niculae Ciobanu, M.D.
During this time, Oxford sent a letter to Mr. Scalamandre dated August 19, 1991 and signed by Alan E. Sokolow, M.D. Plaintiff's Exhibit 2 in Evidence. This letter, sent after Mrs. Scalamandre had already been hospitalized for twenty-four days and commenced HDC/ABMT treatment, stated that:
This is to confirm Oxford Health Plans' decision, already conveyed by phone to your business associate, Mr. McCarthy on August 15, 1991, and to Montefiore Medical Center on August 14, 1991. Oxford Health Plans has denied coverage for your wife Carolee's 7/26/91 admission to Montefiore Medical Center.