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Burton v. Blue Cross and Blue Shield of Kansas City

United States District Court, D. Kansas

July 31, 2014

Doug Burton, in his capacity as executor of the Estate of Marsha Burton, Plaintiff,
v.
Blue Cross and Blue Shield of Kansas City, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

This is an action under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by Doug Burton, in his capacity as executor for the estate of his late wife Marsha, alleging that the defendant wrongfully denied benefits for radiation therapy treatments for his wife's cancer. Both parties have moved for summary judgment. The court finds that coverage for the particular radiation treatment at issue is excluded by both the explicit terms of the Health Plan administered by Blue Cross, and because the treatments were experimental or investigative procedures, as defined by the Plan.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

In addition to the summary judgment motions, the plaintiff has also moved to strike the Declaration of Stacy Woods, which Blue Cross attached in support of its summary judgment motion, on the grounds that the document was not previously produced pursuant to Fed.R.Civ.Pr. 26(a)(1)(A)(ii). Alternatively, plaintiff requests permission to supplement the evidentiary record.

The Motion to Strike is denied. The submission of evidentiary declarations in support of summary judgment motions is explicitly authorized by Rule 56, and Ms. Woods was timely and explicitly identified by Blue Cross as a person with knowledge of the administrative process. The plaintiff has presented no authority suggesting the requirement to timely disclose documents under Rule 26 somehow precludes a party from offering subsequently-obtained affidavits in support of a summary judgment motion.

Woods's affidavit references and explains the administrative record itself, and is properly before the court. Such evidence does not address the merits of Blue Cross's decision and is entirely appropriate for the purpose of explaining "the manner in which defendant made its decision." Buchanan v. Reliance Standard Life Insurance, 5 F.Supp. 1172, 1181 (D.Kan. 1998) (emphasis in original). See also Niedens v. Continental Casualty, No. 05-2176-CM, 2007 WL 956647, *4 (D.Kan. 2007) (affidavit permissible if it "explains how the plan administrator reached its decision"), aff'd on other gds., 258 Fed.Appx. 216 (10th Cir. 2007).

Further, the court denies leave to supplement the record. The issue before the court is whether the administrator's decision was arbitrary and capricious, and accordingly the court looks only to the materials which were actually utilized in that decision. Holcomb v. Unum Life Insurance, 578 F.3d 1187, 1192 (10th Cir. 2009); Fought v. Unum Life Insurance, 379 F.3d 997, 1003 (10th Cir.2004). Supplementation is permissible only in "the unusual case, " Hall v. Unum Life Insurance, 300 F.3d 1197, 1203 (10th Cir.2002). "The party moving to supplement the record or engage in extra-record discovery bears the burden of showing its propriety." Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1163 (10th Cir.2010). Here, the plaintiff has failed to meet the burden of demonstrating the appropriateness of such supplementation, and the request is accordingly denied.

Findings of Fact

Doug Burton was employed by Westlake Hardware, Inc., and he and his wife, Marsha Burton (Burton), had health care benefits under the terms of the Health Plan during the period relevant to this case. Blue Cross is an insurer of the Westlake group health policy. The Health Plan at issue is an employee benefit "Plan" under ERISA as defined by 29 U.S.C. § 1002(1). Marsha Burton was a "participant" of the Plan as defined by 29 U.S.C. § 1002(7). The Plan authorizes Blue Cross as the claims administrator to determine eligibility for benefits under the Policy.

In 1990, Mrs. Burton was diagnosed with ovarian cancer. In 2008, her ovarian cancer metastasized to her liver and abdominal region. In April, 2011, a CT scan revealed slightly larger lesions and new tiny mesenteric nodules on her liver.

Burton's physicians could not perform traditional radiation treatments, because of the sensitivity of the liver and the risk of damage to nearby healthy organs.

In May of 2011, Marsha Burton was examined by Dr. Ralph S. Wolfstein of the Elite Oncology Medical Group in Los Angeles, California. Dr. Wolfstein believed that intensity-modulated radiation therapy (IMRT) might help in Burton's treatment. IMRT involves the manipulation of radiation beams to conform to the shape of a tumor.

At some point in May, Burton submitted a pre-service claim for benefits to Blue Cross requesting coverage for the IMRT treatment.

Burton received IMRT treatments at Elite Oncology between May 23 and June 17, 2011. The results of the treatment appear mixed. It appears that the size of most of the liver tumors were reduced, but one lesion appeared to have become more metabolically active. Burton survived for one year following the treatment.

Section D of the Health Plan excludes services that are "Experimental or Investigative as determined by Us at Our Sole discretion." Section A of the Plan defines "Experimental/Investigative Services, " and lists four bases for a service to be considered experimental or investigative. These include whether such determination is consistent with the Blue Cross and Blue Shield Association's uniform medical policy and if the local Medical Policy Committee, utilizing authoritative sources of information and expertise, determines that the service does not meet criteria set forth in the Health Plan, or that there is not sufficient evidence-based peer reviewed studies to support the safety and efficacy of the service.

After reviewing the pre-service claim in mid-May 2011, Blue Cross claims review determined that IMRT is investigative for gynecological and abdominal cancers according to the IMRT Medical Policy and the terms of the Plan.

On June 16, 2011, one of Blue Cross Medical Directors, Dr. Loretta Britton, confirmed the reviewer's determination that IMRT for treatment of malignant neoplasm of ovary is investigative. Dr. Britton recommended denial of her claim because IMRT for Mrs. Burton is not a benefit under the Health Plan. On June 20, 2011, Blue Cross denied Burton's pre-treatment claim because the requested treatment is experimental/investigative and not covered by the Health Plan.

The notice stated:

Your claim has been carefully processed according to the terms of your health plan. If you disagree with our decision, you may request a review of the claim. You must send a written request within 180 days of receiving this notice. You should explain why you disagree and you may provide additional information about the claim. You also have the right to request guidelines or rules we used in denying your claim.

The next day, Blue Cross received the first level post-service appeal request submitted by Burton's oncologist, Dr. Wolfstein, for claims related to IMRT. Dr. Wolfstein stated that Burton had received multiple treatments of hypothermia coupled with radiation therapy. He wrote that hypothermia in his opinion was "not unsafe, experimental or investigational, " that it was supported in prior trials, and that it has been approved for reimbursement by Medicare and other Blue Cross entities. However, Dr. Wolfstein's letter appears to address the general status of hypothermia coupled with radiation therapy. It does not address whether IMRT is an accepted treatment for the specific illness suffered by Burton - ovarian and liver cancer.

One July 29, 2011, Blue Cross mailed a letter to Burton acknowledging its receipt of the appeal. It also asked her for any additional written comments, documents, or other materials in support of her appeal. Blue Cross notified Burton on August 25, 2011 that her appeal was under review.

MES Solutions provides independent medical evaluation services, including peer review of physician recommended treatment and medical procedures, for providers of health care benefits including Blue Cross. Blue Cross asked MES to review Burton's appeal. MES instructed Blue Cross to send Burton's appeal of the denial of her claim to Dr. Robert Marciniak, who is board certified in Internal Medicine, with a sub-specialty certificate in Medical Oncology, and a claim reviewer for MES.

In August, 2011, Dr. Marciniak wrote that Mrs. Burton's requested treatment for ovarian cancer is considered an ...


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