Preview:

STATE OF MICHIGAN
COURT OF APPEALS


DESIREE E. ROSS, Personal Representative of the Estate of DOUGLAS G. ROSS, Petitioner-Appellee, v BLUE CARE NETWORK OF MICHIGAN, Respondent-Appellant.

FOR PUBLICATION June 13, 2006 9:05 a.m.

No. 266240 Wayne Circuit Court LC No. 05-516054-AV Official Reported Version

Before: Schuette, P.J., and Bandstra and Cooper, JJ. PER CURIAM. Respondent appeals by leave granted the trial court's order that reversed in part the Office of Financial and Insurance Service (OFIS) Commissioner's decision to deny petitioner's claim for emergency medical coverage. We affirm in part and reverse in part and remand. I. FACTS In this medical insurance case, we review the OFIS Commissioner's determination that respondent properly denied most of the benefits sought because petitioner's late husband Douglas Ross's initial treatment was not "emergency care," and because Ross's follow-up care was not medically necessary to stabilize his condition. Douglas Ross, who was insured by Blue Care Network of Michigan (BCN), a health maintenance organization, began complaining in February 2002 of back pain, for which he received pain medication and a referral to physical therapy. By April 2002, Ross could not walk or stand from the intense pain. Doctors then determined that he had multiple myeloma, a spine tumor, fractured lumbar vertebrae, and spinal stenosis. He began chemotherapy. He also underwent decompression laminectomy surgery to relieve the pressure on his spine. In late May 2002, Ross was seen at the University of Michigan to be considered for a bone marrow transplant; it was determined that he would be reevaluated after his fourth round of chemotherapy. Although Ross continued chemotherapy, by June 24, 2002, he had developed additional nodules and lesions in the left shoulder, right side, and right eye and had gained 22 pounds in two weeks. Doctors determined that he had a very aggressive and virulent strain of multiple myeloma that was resistant to the type of chemotherapy he had been receiving.

-1-


According to petitioner Desiree Ross, Dr. Ronald Lutsic, Ross's radiological oncologist, indicated on June 25, 2002, that Ross was no longer a candidate for a bone marrow transplant given that the myeloma had spread to his soft tissues. Dr. Lutsic allegedly said that he had never before seen myeloma as aggressive. He advised radiation to ease the pain. According to petitioner, Lutsic indicated that he would pursue treatment in Arkansas if he were Ross. No other change in Ross's primary treatment plan was recommended. Given Lutsic's failure to prescribe anything other than radiation, on June 26, 2002, petitioner contacted Matt Rhodes, RN, at the University of Arkansas, who advised that Ross likely had extra medullary multiple myeloma, a rare type. Rhodes stated that the condition was treatable, but time was of the essence. That day, petitioner asked Dr. William Silverstone, Ross's primary care physician, for a referral to the Myeloma Institute for Research and Therapy at the University of Arkansas for Medical Sciences (UAMS), an out-of-network provider.1 UAMS treats more cases of multiple myeloma than any other treatment center in the world. BCN advised Silverstone that the referral would take ten to 14 days because BCN needed to review the proposed treatment plan. Rhodes then indicated to BCN that Ross would need to be examined before UAMS could provide a proposed treatment plan. On July 2, 2002, Ross began to be evaluated at UAMS. On July 8, 2002, Dr. Frits VanRhee admitted Ross to the UAMS hospital, noting that Ross had "very aggressive" multiple myeloma that required intensive therapy. Dr. VanRhee indicated that at that time, Ross was in "terrible shape" and was one week away from death. While Ross was hospitalized, he developed a staph infection, which was treated. He also received a different type of chemotherapy, called "DT-PACE," which resolved some of the nodules and lesions, the swelling in his right eye, and the fluid retention in his legs. He was discharged on July 23, 2002. He was readmitted on August 1-2, 2002, but the treatment he received during that admission is unclear. On August 16, 2002, Dr. VanRhee wrote that Ross "clearly will need further therapy." Dr. VanRhee admitted Ross to the hospital again and started another round of DT-PACE chemotherapy because the myeloma was recurring. The plan was to have Ross receive a bone marrow transplant from his brother. One of Ross's treating physicians in Michigan, Stephen Goldfarb, an oncologist, concurred on August 30, 2002, that Ross had a very poor prognosis and that the only treatment of any known value was a bone marrow transplant. On September 24, 2002, Dr. VanRhee noted that Ross's myeloma was in remission and he was scheduled for a bone marrow transplant. Dr. VanRhee also observed that "this patient essentially had been given up on at the University of Michigan . . . ." He added, in the U of M's defense, "most physicians and oncologists never see such aggressive myeloma and have little experience in dealing with this highly aggressive explosive form of tissue-based myelomatous disease." Dr. VanRhee noted that Ross required extremely specialized care in a center totally

1

Although this case involves services provided by more than one provider, for ease of reference, we refer to UAMS as encompassing all the providers in Arkansas.

-2-


dedicated to myeloma--only one or two of which exist in the United States. Dr. Goldfarb agreed that Ross's best treatment would be the tandem bone marrow transplant from UAMS given the very aggressive nature of his myeloma. Ross received a bone marrow transplant at UAMS; however, he died on April 6, 2003. BCN denied coverage for the treatments Ross received at UAMS between June 30, 2002, and November 17, 2002. Ross, however, also was hospitalized from December 23, 2002, through March 3, 2003. For an unknown reason, BCN apparently has bifurcated the treatment Ross received and has only addressed his treatment up until November 17, 2002. Although BCN paid UAMS for some of the services rendered, apparently BCN has received reimbursement from UAMS for those payments. In December 2002, petitioner filed a "step one member grievance" to challenge BCN's failure to cover the services from UAMS. In January 2003, the BCN associate medical director issued a decision that Ross was required to use in-network resources and denied his request for reimbursement. Petitioner then filed a "step two member grievance," which was denied because Ross had "self-referred" to UAMS despite the fact that his primary care physician allegedly had referred him to the University of Michigan.2 In April 2003, petitioner requested an external review by the Commissioner of the Office of Financial and Insurance Services (Commissioner) under the Patient's Right to Independent Review Act (PRIRA), MCL 550.1901 et seq. Pursuant to MCL 550.1917, the Commissioner assigned the case to an independent review organization (IRO), Permedion, which arranged for Ross's records to be reviewed by a practicing physician who was board-certified in internal medicine, medical oncology, and hematology. The IRO submitted the initial review on May 16, 2003. The IRO determined that Ross's care was emergency treatment, as both Ross and Dr. VanRhee opined that time was of the essence where Ross had not responded to chemotherapy. The IRO rejected BCN's position that Ross's treatment was experimental, stating that "this reviewer feels that all the drugs used in the patient's treatment were accepted/approved chemotherapy drugs . . . ." Further, the IRO indicated that the bone marrow transplant should not be considered experimental given Ross's history of resistant or refractory disease. Also, the IRO noted that Ross's health clearly would have declined had he waited for the long BCN approval process. The IRO concluded: After reviewing all the materials provided in this case, it is our reviewer's opinion that the evaluation of Mr. Ross at Arkansas Medical Center was considered an emergency and the treatment provided to this patient is not considered experimental/investigational.

2

Note that BCN spoke with Dr. Silverstone regarding a referral to UAMS on June 26, 2002. Thus, Dr. Silverstone at least attempted to refer Ross to UAMS.

-3-


In August 2003 and again in November 2004, the Commissioner asked the IRO for additional review.3 The IRO was to specify whether each of four episodes of treatment met the criteria for emergency care under BCN's policy and at what point would Ross have been stabilized to make it medically feasible to transfer his care to an in-network facility. The four episodes included: (1) June 30, 2002, outpatient consultation; (2) July 8 to July 23, 2002, inpatient admission; (3) August 1 to August 2, 2002, inpatient admission; (4) September 9 to November 17, 2002, follow-up testing.4 In August 2003 and November 2004, the IRO issued recommendations, noting that Ross was prudent in seeking evaluation at UAMS on June 30, 2002, especially given his severe and life-threatening complications that required admission on July 8, 2002. The IRO did not offer an opinion regarding the August 1, 2002, admission given the lack of medical records for that admission. With regard to the transferring of Ross's care to another facility, the IRO opined: The follow-up testing was to evaluate the health of the patient and effectiveness of the treatment given to this patient. This reviewer does not have specifics as to the care provided, but it would be inappropriate to "transfer" this responsibility to another facility, which was not involved with this patient's course of treatment. It is the opinion of this reviewer that it is inappropriate to unbundle the care provided to this patient for his refractory myeloma and that it is appropriate to look at the global care provided for this illness. Given the sense of emergency and life-threatening nature of the patient's condition without effective therapy, the care provided at [UAMS] was appropriate treatment. Accordingly, the IRO again recommended that the BCN denial be reversed. Another "re-review" was requested, so the IRO issued its fourth recommendation in March 2005. The IRO noted that, when Ross left Michigan for Arkansas in June 2002, Ross was "one week away from death," which supported the finding that Ross's situation was urgent. With regard to stabilizing Ross so that he could be transferred, the IRO indicated that Ross could not have been transferred before his discharge date any earlier than September 9, 2002. Further, the IRO rejected the claim that Ross's treatment, specifically DT-PACE chemotherapy, was experimental because "current peer-reviewed medical literature substantiates the efficacy of DTPACE therapy and a recognized oncology organization generally accepts the treatment. Additionally, the stem-cell transplant procedure has been shown to be a significant benefit, especially in patients with poor prognostic factors. Tandem or double stem-cell transplants are considered more effective." Again, the IRO recommended that the BCN's denial be overturned.

3 4

Petitioner contends that PRIRA does not provide authorization for such re-review.

We note that during this time frame, Ross received bone marrow transplants from September 23, 2002, through October 9, 2002, which suggests that BCN erred in characterizing this period as only follow-up testing.

-4-


In her March 2005 opinion regarding the IRO's determinations, Commissioner Linda Watters questioned whether Ross's condition in late June 2002 fell within the definition of an emergency. The Commissioner stated: If the Petitioner's condition was emergent at the time he left Michigan to travel to Arkansas in late June 2002 (as suggested by the IRO expert), he should have sought immediate treatment at the closest hospital. However, there is nothing in the record that clearly states what the Petitioner's condition was when he left Michigan. The Commissioner acknowledged that petitioner had sought treatment for Ross at UAMS because of its expertise in the treatment of myeloma. The Commissioner noted, however, that "an argument could be made for nearly every medical condition or disease that there are highly regarded physicians and/or medical facilities in the country that possess the highest level of expertise." The Commissioner noted that petitioner did not utilize the expedited external review process that allowed for a coverage determination to be made within 72 hours.5 Instead, Ross "elected to seek evaluation and treatment with an out-of-network facility without the appropriate authorization." The Commissioner found:

Download DESIREE E ROSS V BLUE CARE NETWORK OF MICHIGAN.pdf

Michigan Law