Judgment: Doe vs Blue Cross of California

[Notes: Name of Plaintiff has been changed; Judgment issued June 3, 2002]

CASE NO: SN013292


JANE DOE Plaintiff vs


Following a Notice of Appeal from a small claim judgment, the above-entitled matter was heard de novo on April 12, 2002, in Department 19 of the above court, the Honorable Yuri Hofmann, Judge presiding.

Plaintiff JANE DOE (hereinafter "Doe") appeared in pro per.

Defendant BLUE CROSS OF CALIFORNIA, INC.(hereinafter "BC") appeared through its designated representative, Christopher Loftin.

Having heard the testimony of plaintiff, Dr. Larry M. Weisenthal, Dr. Dwight McKee, and Mr. Loftin, the court offered each side an opportunity to supplement their positions with additional documentary material. Such further material was received from each side and considered by the Court.

At all times relevant herein, Doe was a member enrolled for coverage under a health insurance plan agreement with BC. In April 1997 Doe was diagnosed with stage 3-b inflammatory breast cancer in the left breast. She underwent chemotherapy to reduce the size of the tumor prior to surgery. In February 1998 she underwent surgery to remove an 8 centimeter tumor. Her oncologist, a PPO preferred provider, referred her to Dr. Weisenthal to perform a Cell Culture Drug Resistance Test ("CCDRT"). The test results narrowed the scope of treatment and Doe's cancer went into remission.

In January 2000 a lump was discovered in Doe's right breast, and in June 2000 she underwent surgery. Dr. Weisenthal again performed a CCDRT and based thereon a choice of treatment was made.

Doe claims she is entitled to coverage for the medical expenses required for the management of her breast cancer. BC's position is that while it has paid for Doe's treatment, the CCDRT is not covered by her health insurance policy because the tests did not meet their internal coverage guidelines.

Among the reasons given for declining to pay for the tests. BC claims that: The tests fail to meet specific technology criteria:

Human Tumor In Vitro Chemotherapy Assays are expressly excluded from coverage:
the tests would not affect treatments administered to her:
and assay guided chemotherapy is unproven.

Having carefully considered the evidence, the Court is unpersuaded by BC's rationale and adopts Doe's, Dr. McKee's, and Dr. Weisenthal's evidence as the basis for the judgment which follows:

The Court finds, based on the expert testimony of Dr. Weisenthal and Dr. McKee, that the CCDRT was medically necessary in the management of Doe's breast cancer.

The Court hereby enters judgment in favor of Doe and against BC in the following amount:

$1,293.89 for benefits due as of February 24, 1998. The amount being certain, prejudgment interest at the rate of 10% from February 24, 1998, to date of this judgment shall be in the amount of $550.86.

$1,274.13 for benefits due as of June 16, 2000. The amount being certain, prejudgment interest at the rate of 10% from June 16, 2000, to date of this judgment shall be in the amount of $249.23.

The judgment total is $3,368.11 plus costs of $50.00

Yuri Hofmann
Judge of the Superior Court