The Supreme Court of Wisconsin on May 28, 2008, issued a decision in favor of parents who had been denied insurance coverage for a bone marrow transplant and stem cell rescue for their three-year-old son diagnosed with brain cancer. Representing the plaintiffs were the University of Wisconsin Law School Consumer Law Clinic in partnership with the Madison firm of Lawton & Cates.
Parents Kevin and Amy Summers filed the lawsuit against Touchpoint Health Point, Inc., which had denied coverage for the medical procedure recommended by the UW Hospital oncologist treating their son, Parker. The Summers opted to go forward with the treatment despite Touchpoint’s refusal of coverage on grounds that the treatment was experimental.
The Supreme Court held that the decision to deny coverage for Parker's treatment was arbitrary and capricious under ERISA because (a)
Touchpoint's interpretations of its experimental treatment exclusion were inconsistent, and (b) Touchpoint's termination of benefits decision was made despite an external review agency's finding that the requested treatment met the standard of care and was medically necessary, and despite the external review agency recommending approval for the treatment.
The decision by the Court upheld a 2006 decision by the Wisconsin Court of Appeals. The full opinion can be viewed at http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=32832 .
Professor Stephen Meili, Director of the UW Law School Consumer Law Clinic, who delivered an oral argument as well as a brief for the case, later commented, “This decision sends a strong message to insurance companies and HMOs that they must be transparent in their dealings with their customers: they must draft exclusion provisions that are clear and unambiguous. They must interpret those exclusions in a consistent and non-arbitrary manner. And when they deny a customer's claim for coverage, they must do so in a way that clearly identifies the reasons for the denial.”
Meili pointed to the case as a prime example of the Wisconsin Idea, the concept that projects undertaken at the university should benefit the residents of the state. “The Law School's work on this case exemplifies the Wisconsin Idea," he stated. "Through the collaborative efforts of law students, faculty, and the Law School's Center for Patient Partnerships (which offered invaluable assistance to the Summers throughout their long ordeal), the University was able to apply its expertise to a problem that is all too familiar to many individuals and families in Wisconsin.”
Parker Summers is now a healthy eight-year-old boy, about to celebrate his fifth year of remission.
Submitted by on May 30, 2008
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