John Doe Firm Doe v. Group Hospitalization & Medical Services, D/B/A Blue Cross and Blue Shield of the National Capital Area

3 F.3d 80, 128 A.L.R. Fed. 675, 16 Employee Benefits Cas. (BNA) 2850, 1993 U.S. App. LEXIS 20861, 1993 WL 311768
Court of Appeals for the Fourth Circuit·Decided August 18, 1993·No. 92-2525·Published·Cited by 210 cases

Opinion

OPINION

NIEMEYER, Circuit Judge:

John Doe, a 59-year-old law partner of Firm Doe in Washington, D.C., was diagnosed in late 1991 with multiple myeloma, a rare and typically fatal form of blood cancer. His physician, Dr. Kenneth C. Anderson of the Dana-Farber Cancer Institute, affiliated with Harvard Medical School, prescribed a treatment that involved an initial course of chemotherapy to reduce the percentage of tumor cells. Provided Doe responded to the therapy and achieved a “minimal disease status,” Dr. Anderson recommended that Doe then undergo high-dose chemotherapy and radiation therapy combined with an autolo-gous bone marrow transplant. The bone marrow transplant procedure, prescribed to replace bone marrow damaged by the treatment, consists of “harvesting” some of the patient’s bone marrow, freezing it for preservation, and, after the chemotherapy, reinfus-ing it for regeneration. The cost of the entire treatment was estimated at $100,000. Dr. Anderson stated that the prescribed treatment “offers this gentleman his only chance of long-term survival.”

John Doe and Firm Doe sought health insurance benefits for the prescribed treatment from Group Hospitalization and Medical Services, Inc., doing business as Blue Cross and Blue Shield of the National Capital Area (Blue Cross). Blue Cross insured and administered Firm Doe’s employee welfare benefit plan pursuant to a group insurance contract entered into effective January 1, 1989. Relying on language in the contract that excludes benefits for bone marrow transplants undergone in treating multiple myeloma, as well as for “related” services and supplies, Blue Cross denied benefits. John Doe and Firm Doe promptly filed suit against Blue Cross under § 502 of the Employee Retirement Insurance Security Act (ERISA), 29 U.S.C. § 1132, claiming that Blue Cross denied benefits based solely upon improperly adopted amendments to the group insurance contract and that, in any event, the contract’s language as amended did not exclude coverage for the treatment. On cross-motions for summary judgment, the district court entered judgment for Blue Cross, holding that “Blue Cross may properly deny coverage to John Doe and his physicians based on the Group Contract and amendments thereto.” This appeal followed.

Reviewing the plan administrator’s discretionary decision to deny coverage under a less deferential standard than would typically be applied because of the administrator’s conflict of interest, we reverse the portion of the decision denying benefits for chemotherapy and radiation therapy and affirm the remainder.

I

The group insurance contract to which we must look to resolve the issues in this case was purportedly amended by a letter sent to Firm Doe dated November 30, 1990. The amendment is important because it supplied the language on which Blue Cross relied to deny coverage and gave Blue Cross discretion in deciding eligibility and contract interpretation issues.

John Doe and Firm Doe contend that Blue Cross failed to comply with the terms of the group insurance contract and the provisions of ERISA when attempting to amend the contract with the November 30, 1990, letter. Failing validity of the amendment, they ar *83 gue, there is no language on which Blue Cross could have relied to deny benefits for John Doe in connection with the prescribed treatment of his cancer.

In December 1991 John Doe was evaluated and diagnosed with multiple myeloma, having entered the hospital in November for acute back pain radiating down his legs. By letter dated January 30, 1992, John Doe’s physician, Dr. Anderson, prescribed a treatment of chemotherapy and radiation that included an autologous bone marrow transplant. On March 30, 1992, Dr. Gregory K. Morris, vice president and medical director of Blue Cross, wrote Dr. Anderson denying the request for coverage of the proposed treatment. Specifically referring to the language of the November 30, 1990, amendment that excludes from coverage treatment of myeloma by means of bone marrow transplant and services and supplies related thereto, Dr. Morris stated that Blue Cross will be “unable to provide benefits for Mr. [Doe].” Relying on the same language Blue Cross also, at a later date, denied coverage for blood tests prescribed in the subsequent months by Doe’s doctor, stating that “they [too] are related to non[-]covered bone marrow transplant.” John Doe’s appeal for reconsideration of Blue Cross’ position was denied by Blue Cross, and Doe and Firm Doe thereafter filed this suit. *

The November 30 letter was a form letter apparently sent to all administrators of Blue Cross group insurance contracts. It opens by stating that its purpose is to “inform you of updates” to the group contract. It then addresses changes to no less than eight separate aspects of coverage in four single-spaced pages, including one headed “Organ Transplants” that includes the language in question. The letter concludes:

The changes described in this Letter of Amendment will not result in a change in your group rates at this time. Please attach this Letter of Amendment to your copy of the Group Contract(s). .
A Subscriber Bulletin is enclosed for your Employees which summarizes these changes. You may duplicate this bulletin as needed, or request additional copies by contacting the marketing service representative for your group. If you have any questions about these changes, please contact your service representative.

John Doe and Firm Doe contend that the amendment was ineffective for twp reasons: It was not adopted in accordance with the contract’s specified time periods for making amendments, and, even if it was timely, the language of the amendment misled the contract holder, Firm Doe, and its employees about the nature of the changes.

We address first John Doe and Firm Doe’s argument that the amendment was untimely. The original contract, effective January 1, 1989, provided that amendments could be made after the initial contract year provided Blue Cross gave the contract holder “at least 60 days written notice prior to such change.” In August 1989, eight months after the commencement of the contract and therefore during its initial year, Blue Cross changed the notice requirement from 60 days to 30 days. Since that amendment could not take effect during the initial contract year, we agree with the district court’s ruling that it took effect January 1, 1990, and therefore applied to the November 30, 1990, amendment issued 11 months later.

While the November 30 amendment did not provide for an effecting date, by reason of the contract language requiring 30 days notice before an amendment could be made, the *84 November 30 amendment became effective 30 days later, by January 1, 1991, and was therefore effective on March 10, 1992, when Blue Cross relied on it to deny benefits.

John Doe and Firm Doe maintain that the August 1989 amendment, changing the notice period from 60 days to 30, was ineffective.

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John Doe Firm Doe v. Group Hospitalization & Medical Services, D/B/A Blue Cross and Blue Shield of the National Capital Area, 3 F.3d 80, 128 A.L.R. Fed. 675, 16 Employee Benefits Cas. (BNA) 2850, 1993 U.S. App. LEXIS 20861, 1993 WL 311768 (4th Cir. 1993).

3 F.3d 80 (John Doe Firm Doe v. Group Hospitalization & Medical Services, D/B/A Blue Cross and Blue Shield of the National Capital Area) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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