Steven S. v. GHI

6 Misc. 3d 213
CourtCivil Court of the City of New York
DecidedSeptember 7, 2004
StatusPublished

This text of 6 Misc. 3d 213 (Steven S. v. GHI) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steven S. v. GHI, 6 Misc. 3d 213 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

Barbara Jaffe, J.

Claimant, father of 17 year old Scott S., seeks reimbursement in the amount of $5,000 from defendant health insurer for a [214]*214$7,500 surgical procedure performed on Scott to remove enlarged breast tissue. Defendant denied coverage, relying on its Comprehensive Benefits Plan (the plan). Testifying for claimant were claimant, his son Scott, and Kathy Gross, M.D., Scott’s pediatrician. Testifying for defendant was Allison Williams. All witnesses were credible. Judgment is granted claimant.

I. Facts Adduced at Trial

Scott suffered from a condition known as bilateral gynecomastia, or enlarged breast tissue. In order to avoid the great embarrassment and suffering he endured when ridiculed by his peers, Scott never swam, went to the beach, or engaged in any activities which exposed his chest to view. Gym days at school were particularly difficult for Scott. Although eventually losing a significant amount of weight and reducing his clothing size by eight measurements, Scott’s gynecomastia was not dispelled. Scott thus continued to avoid situations where his condition would be apparent to others. Moreover, although he was accepted for admission to an out-of-state university, he decided he would not attend, as he did not want to live in a dormitory where he anticipated being subjected to ridicule.

Gross, Scott’s pediatrician, recommended surgery to eliminate Scott’s “deformity” and consequent emotional pain. According to Gross, the procedure was medically necessary, a conclusion echoed by her partner, Hershel Glatt, M.D., who wrote in a letter dated January 13, 2004, that because Scott’s gynecomastia was “inhibiting his psychosocial development,” “breast reduction surgery is medically indicated.”

In a letter dated February 17, 2004, the office of plastic surgeon Dr. Martin E. Kessler requested from defendant presurgical authorization for a bilateral mastectomy for Scott, relying on Kessler’s interview with Scott which reflected that Scott suffered “increased pain and distress.” Accompanying the request for authorization were preoperative photographs of Scott, a letter from Scott dated February 16, 2004 in which he detailed the embarrassment and ridicule he endured as a result of his gynecomastia, and Glatt’s letter.

Williams, a representative of defendant, testified that coverage was not authorized because the surgery was elective, cosmetic, and not medically necessary within the meaning of the plan. She submitted to the court the plan and the correspondence relating to the instant claim.

[215]*215According to the plan, defendant does not cover services unless they are “medically necessary.” (Plan § 1 [10] [“Criteria for Coverage”].) As relevant here, for health care services to be “medically necessary,” they must be provided for the direct care or treatment of “the condition, illness, disease, injury or ailment” in accordance with accepted community standards of good medical practice, and cannot be omitted under those standards. Additionally, the services must not be in excess of the care indicated by generally accepted standards of good medical practice in the community and must not be furnished primarily for the convenience of the patient, the patient’s family or the provider. (Id.) In determining whether a procedure is medically necessary, the plan provides that “the fact that your doctor prescribed or provided the care does not automatically mean that the care qualifies for payment under this Plan.” (Id.)

The plan specifically excludes services performed in connection with elective cosmetic surgery or treatment which is primarily intended to improve one’s appearance, except, as relevant here, when related to reconstructive surgery performed “because of congenital disease or anomaly of a covered child, which has resulted in a functional defect.” (Plan § 7 [“Principal Limitations and Exclusions”].) The term “functional defect” is nowhere defined in the plan.

In a letter to Kessler dated February 27, 2004, defendant’s medical director, Janet L. Carr, M.D., advised that a GHI clinical peer reviewer had determined that the surgery was not authorized, as “[t]here is no suspicion of malignancy and the physical examination supports the benign nature of the condition.” Rather, it was determined that Scott suffered from a cosmetic condition.

On March 4, 2004, claimant appealed the determination declining coverage to the New York State Department of Insurance. The determination was upheld in a letter dated March 16, 2004, in which Carr wrote that “[w]hile surgery will improve the appearance of the breasts, no definite functional problems secondary to the gynecomastia have been identified and therefore, surgery will not lead to functional improvement.” Moreover, as Carr believed that the primary goal of the procedure was to improve Scott’s appearance, she decided that coverage was not warranted.

By application dated April 19, 2004, claimant commenced an external appeal relating to the final adverse determination. In a letter dated May 24, 2004, the determination denying authori[216]*216zation was upheld by an unidentified plastic surgeon who reviewed all of the documentation listed above. In an accompanying report, the physician observed that Scott “has depression related to concerns over the size of his breasts.” Nevertheless:

“[w]hile it is certainly reasonable that the patient has emotional distress from his breast size, the role of breast reduction in the treatment of his emotional problems has not been defined by a mental health professional. There is no documentation from a mental health professional in substantiation of the procedure from a psychological standpoint. Due to the absence of any documentation of a functional problem secondary to the gynecomastia, breast reduction is not medically necessary for this patient.”

Apparently, it was the absence of documentation from a mental health professional concerning Scott’s functional problem that formed the basis for this ultimate determination that defendant properly denied coverage. Moreover, according to Williams, as none of the physicians who prescribed the surgery were mental health professionals, their opinions as to Scott’s psychological need for the surgery were insufficient to warrant a finding that the surgery was not elective or cosmetic.

Kessler successfully performed the surgeiy, and was presumably paid in full for it.

II. Conclusions of Law

The rights of the parties are governed by the plan and, absent any constitutional or statutory provisions or administrative regulations, an insurer may limit the amount and conditions of liability. (Wachtel v Metropolitan Life Ins. Co., 141 Misc 2d 665, 668 [Nassau Dist Ct 1988], revd on other grounds 146 Misc 2d 670 [App Term, 9th & 10th Jud Dists 1990].) “Generally, the insured has the burden of showing that the loss or expense is covered by the policy, while the insurer has the burden of showing that the loss or expense comes within an exclusion from coverage.” (Oceanside Med. Healthcare, P.C. v Progressive Ins., 2002 NY Slip Op 50188[U], *15 [Civ Ct, Kings County, May 9, 2002], citing Neuwirth v Blue Cross & Blue Shield of Greater N.Y., 62 NY2d 718, 719 [1984].) Exclusions that are specifically and clearly defined will be enforced. (Caporino v Travelers Ins. Co., 62 NY2d 234 [1984].)

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Related

Caporino v. Travelers Insurance
465 N.E.2d 26 (New York Court of Appeals, 1984)
Neuwirth v. Blue Cross & Blue Shield
465 N.E.2d 353 (New York Court of Appeals, 1984)
Wachtel v. Metropolitan Life Insurance
141 Misc. 2d 665 (Nassau County District Court, 1988)
Wachtel v. Metropolitan Life Insurance
146 Misc. 2d 670 (Appellate Terms of the Supreme Court of New York, 1990)

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Bluebook (online)
6 Misc. 3d 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-s-v-ghi-nycivct-2004.