Marcetti v. Aronson, No. Cv 90-0384199s (Aug. 7, 1992)

1992 Conn. Super. Ct. 7462
CourtConnecticut Superior Court
DecidedAugust 7, 1992
DocketNo. CV 90-0384199S
StatusUnpublished

This text of 1992 Conn. Super. Ct. 7462 (Marcetti v. Aronson, No. Cv 90-0384199s (Aug. 7, 1992)) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcetti v. Aronson, No. Cv 90-0384199s (Aug. 7, 1992), 1992 Conn. Super. Ct. 7462 (Colo. Ct. App. 1992).

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This case is an appeal from the decision of the defendant Department through its "Fair Hearing Officer" denying the plaintiff the right to Title XIX payment for specific out-of-state medical services recommended by her in-state treating physician.

In 1982, Patricia Marchetti, was involved in a serious head-on collision causing numerous serious injuries, so severe that she has been found to be permanently and totally disabled, entitling her to Social Security disability payments as well as Title XIX medical payments. Her medical case is extremely complicated because of the numerous anatomical and neurological areas affected. They run the gamut of traumatic brain injury, sternum injuries, loss of sight, loss of hearing, immunological damage, lung damage, etc. To list all the injuries would require a duplication of her treating physician's report. Accordingly, a copy of that report is attached as Appendix A. The plaintiff has undergone complete evaluation at Yale Department of Medicine's ophthalmology, neurology, retina glaucoma, immunology, allergy, endocrinology, gynecology, pain management and cardiothoracic departments. Also, she has been seen at the University of Connecticut Health Facility as well as by numerous physicians of various specialties. Her problems have been severely compounded by her allergic reactions to medications which are necessary for her treatment. Her physician, Dr. Raxlen, who is recognized by the defendant as an expert allergist wants her to see Dr. William Rea in Dallas, Texas, because "he has the equipment to measure certain chemical responses, and the non-phenol antigens, for desensitization. Essentially, Dr. Raxlen seeks the assistance of Dr. Rea so that he can determine what medications can be administered to the CT Page 7463 plaintiff which would not cause her condition to deteriorate. Many medications are enclosed in preservatives because without them they would deteriorate too quickly for commercial distribution. Testing is necessary with medicine that is not so preserved (non-phenol antigens) in order to determine if it is the medicine or the preservative which has been causing the extreme allergic reactions. According to Dr. Raxlen, Dr. Rea has the equipment and access to non-phenol antigens (unpreserved medicine) to do such testing and it is not available in Connecticut.

The plaintiff, who is seeking to avoid her continuation on Social Security, has been taking courses which will enable her to be employed if she can reduce her problem with medications. Accordingly, prior the Fair Hearing held on May 3, 1990, she sought two things. First, she sought to have the medical services that her physician thought necessary at the place he thought necessary, Texas, and in accordance with medical regulations applicable to out-of-state medical services. Second, she sought assistance in paying unpaid medical bills of nearly $60,000.00 which she had been trying to pay from her limited Social Security payments.

On March 21, 1990 her request for the out-of-state medical payments under medicaid was denied by the defendant department's medical doctor because she claimed that such services are available in Connecticut. On April 26, 1990, the out-of-state medical services were denied for the additional reason that "the department will not pay for any procedures or services of an unproved, experimental or research nature for services in excess of those deemed medically necessary by the department to treat the patient's condition."

The plaintiff requested a fair hearing before the department on April 3, 1990. On May 3, 1990, the department's hearing officer heard the case and on August 7, 1990 rendered a decision. As to the unpaid bills totaling $60,000.00, the hearing officer stated that he was at a loss for an explanation as to why the medical bills have not been paid and he suggested that the parties sit down to determine what would be the best procedure to arrange the payment of those expenses.

As to the issue of whether or not the medical treatment or testing recommended by the treating doctor is available in Connecticut, the hearing officer found that it was not. He held that greater weight must be given to the opinion and conclusion of the treating physician over the opinion of the department's physician, who never examined the plaintiff. He noted that Dr. Raxlen, the treating physician, is one of the allergists the department's physician recommended for the medical services CT Page 7464 needed by the plaintiff. On the issue of whether or not the treatment sought by the plaintiff is experimental in nature, the hearing officer held against the plaintiff and for the department.

From that decision relating to the issue of experimental treatment, the plaintiff has appealed. The defendant department has not appealed the rulings against it.

What is the basis of the hearing officer's decision on that issue? The department submitted some medical society articles that stated that approximately 500 medical doctors from different medical specialties practice "clinical ecology". The hearing officer found that the thesis of these articles is that "Clinical ecology is a form of medical practice based on two concepts: that a broad range of environmental chemicals in foods can be responsible for an illness in which an unlimited number of symptoms occur in the absence of objective physical findings, pathologic abnormalities, or specific abnormal results of laboratory tests; and that the immune system is functionally depressed by many environmental chemicals." He found from these articles that chemical ecology has not found wide support in the United States and the clinical ecologist's "diagnoses and treatments involved no proven efficiency." He also found that William Rea conducts, as part of his practice, clinical ecology. Based on that, the hearing officer found "that clinical ecology is not an accepted medical practice in the United States and, therefore, he found "that it is unproven and experimental in nature and not subject for payment by the Department of Income Maintenance."

Assuming that is true, the treating doctor, Dr. Raxlen, is not sending the patient to Doctor Rea for diagnosis, treatment or clinical ecology, but for testing. In fact, the department does not disagree with Dr. Raxlen's diagnosis. However Dr. Rea deviates from majority medicine in certain experimentation, if any, in terms of diagnosis, he is not being asked to diagnose in this case. He is being asked to perform a specific procedure because he has the equipment to do it and he is being asked to do it by the treating physician who the department agrees is an expert in that field. The court, therefore, examined the entire record to determine what evidence there was that the specific medical procedure that Dr. Raxlen wished Dr. Rea to perform was experimental. Finding none, the court asked the Attorney General's office to examined the lengthy record to see if there was any evidence the court had missed. The court gave that office two weeks to scour the record for any evidence to support such a position. The Attorney General's office acknowledged that there was no express evidence that the procedure the plaintiff was being sent to Dr. Rea for was experimental. They CT Page 7465 claim that if the procedure was not available in Connecticut, it must be experimental. The court rejects that bootstrap argument.

The court finds that the decision rendered here without evidence to support it is clearly arbitrary. The issue is then raised at to what the court may do in that event. The defendant argues that where a trial court has found that an administrative agency has made invalid or insufficient findings, the court must remand the matter to the agency for further precedings.

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Bluebook (online)
1992 Conn. Super. Ct. 7462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcetti-v-aronson-no-cv-90-0384199s-aug-7-1992-connsuperct-1992.