Robertson v. BCBS Texas (D. Montana Apr. 15, 2015, No. CV 14–224–M–DWM): “Law and Justice Can Pass Like Ships in the Night”

In July 2011, Plaintiff Lana Robertson was diagnosed with diffuse systemic sclerosis, a rare autoimmune disease that causes the skin and other connective tissues in the body to tighten and harden. Without treatment, the disease can attack tissues in internal organs and is fatal once it infiltrates the tissues of the lungs or heart. Robertson’s treating physician, Dr. Richard Burt, Chief of the Division of Immunotherapy at Northwestern University Feinberg School of Medicine in Chicago, recommended as "medically necessary" a hemapoietic stem cell transplant (“the Procedure”).

Robertson, a plan participant under an employer-sponsored health benefits plan established by Defendant Stallion Oilfield Holdings, Inc. (“Stallion”) (Plan Administrator) and claims administered by Blue Cross and Blue Shield of Texas (“BCBS Texas”) (Claims Administrator), sought pre-approval from BCBS Texas for treatment with the FDA-approved Procedure’s protocol on November 8, 2013. BCBS denied the claim on the grounds that the Procedure was “experimental, investigational, and unproven.” The initial denial specifically stated that: “Per the data in peer-reviewed medical literature, autologous stem cell transplant is not effective, reliable, and safe for auto-immune diseases, including systemic sclerosis.”

Robertson appealed the decision twice and was denied twice (December 2013 and February 2014) by different independent review organizations (IROs). Each IRO denied Robertson’s claim on essentially the same grounds, namely that “[t]he proposed transplant for the treatment of systemic sclerosis is part of a phase 3 randomized clinical trial and is therefore considered investigational.” The IRO reviews did no more than simply endorse the position of BCBS Texas.

On September 6, 2014, Robertson sued Stallion and BCBS Texas in the District Court of Montana, claiming benefits under ERISA, seeking a declaration that the Plan provides coverage for the Procedure and attorneys’ fees.

BCBS Texas took the position that it did not abuse its discretion because (1) the Plan specifically excludes as Experimental/Investigational “[t]reatment as part of a clinical trial or a research study” which the treatment Robertson sought plainly was; and (2) because the Plan clearly deems Experimental/Investigational treatments not accepted as standard medical treatment” which the treatment Robertson sought plainly was not.

Robertson maintained that the Experimental/Investigational exclusion could not apply to services that are medically necessary and that, at the very least, the Plan is ambiguous and must be construed in her favor. Furthermore, Robertson advanced the argument that the Plan’s Experimental/Investigational exclusion was not plain, clear or conspicuous such that it negated her reasonable expectations of coverage.

On April 15, 2015, the District Court of Montana reluctantly sided with BCBS Texas’ position by holding that the insurer acted reasonably in denying preapproval of the Procedure because Robertson’s enrollment in the phase 3 clinical trial is explicitly excluded as Experimental/Investigation under the terms of the Plan. The Court even acknowledged that Blue Cross entities were making inconsistent determinations for the same procedure in different Blue Cross coverage jurisdictions based on varying Plan language. However, those disparate determination outcomes were not allowed to influence Robertson’s case.

The Court eloquently concluded its Opinion with the observation that: [t]he case is a troubling example of how sometimes the law and justice can pass like ships in the night. Robertson faces death as a result of a rare disease, the treatment of which her insurance will not cover despite her valid enrollment in the Plan
. . .
ERISA was enacted to protect the interests of participants in employee benefit plans. The masks of the law in this case conceal the person at risk of dying by a deferential standard of review and the rules of legal interpretation. Though the trial court determined that Blue Cross’s denial of benefit was legal, we disagree and would also argue it was neither reasonable nor moral.

See Robertson v. Blue Cross and Blue Shield of Texas, --- F. Supp.3d --- (Apr. 15, 2015).

On April 27, 2015, Robertson filed an appeal to the Ninth Circuit Court of Appeals. Our firm will be watching this case closely. If you have received denials for treatment on the grounds that the treatment is “experimental, investigation, or unproven” or not medically necessary, please contact our firm as we may able to help.

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