Metropolitan News-Enterprise


Friday, April 17, 2009


Page 1


C.A. Revives Claim Against Blue Cross in Mintz Case




A suit charging Blue Cross of California with liability for failure to approve a medical procedure that may have saved the life of Los Angeles Superior Court Judge David Mintz was revived, in part, by this district’s Court of Appeal yesterday.

Div. Eight, in an opinion by Ventura Superior Court Judge Vincent O’Neill, sitting on assignment, said Blue Cross may be liable in negligence for having breached a duty of due care to protect insureds from injury in making benefit determinations. The court did, however, affirm the dismissal of claims for intentional infliction of emotional distress and interference with contract.

Mintz was a judge from January 2001 until his death in May of last year, about six weeks after the suit filed by himself and his wife, Susan Mintz, was dismissed by retired Los Angeles Superior Court Judge Reginald Dunn, sitting on assignment. As alleged in the complaint, Mintz was diagnosed with sarcoma on the lung in November 2001, and underwent surgery.

Three tumors were found, on both of his lungs, in February 2004, resulting in more surgery, including a lobectomy of the lower left lobe. A new metastasis was found in the fall of that year, and after chemotherapy proved ineffective, his lower right lobe was removed.  

More Tumors

More tumors were found in 2006 and could not be operated on, as Mintz could not afford to lose any more lung tissue, his doctors recommended a procedure known as radio frequency ablation, followed by more chemotherapy. According to medical websites, the procedure involves the use of heat to eliminate cancerous tumors.

Mintz received RFA in March 2006, but the chemotherapy was ineffective and more tumors were found. Blue Cross, which administered Mintz’s CalPERS health plan, subsequently informed him that it had reviewed the RFA and that, although it had approved the procedure, had decided that it was experimental and thus outside the scope of coverage.

Later in 2006, the complaint alleged, a doctor at UCLA said that he could perform RFA on the largest tumor, although the procedure was risky. Blue Cross, however, rejected the procedure, saying it was “deemed investigation and not medically necessary” and that studies indicating its effectiveness as a treatment for lung cancer involved too small a population to be meaningful.

The complaint further alleged that the rejection was made without the reviewing doctor or any other representative contacting Mintz or his doctors about the necessity of the procedure; that given the likelihood he would die without the procedure, Blue Cross violated its duty to consider his “specific circumstances”; that Blue Cross should have approved the procedure based on the scientific information available to it at the time; that he was not advised of his statutory right to “independent external review” of the denial; and that Blue Cross had a financial incentive to deny coverage.

Dunn sustained demurrers to all causes of action, but O’Neill said the complaint pled a cause of action for negligence.

Six-Factor Test

California, the jurist noted, uses a six-factor test to determine the existence of a duty in tort, and at least four of those factors weigh in favor finding that “the administrator of a health care plan owes a duty to plan members to exercise due care to protect them from physical injury caused by its negligence in making benefit determinations under the plan.”

O’Neill elaborated:

“First, the ‘transaction’ here—Blue Cross’s utilization review responsibility under the Mintz/CalPERS health insurance plan (evaluating whether health care services are medically necessary, and so on)—is obviously intended to, and necessarily does, affect the members of the plan.  Second, it is certainly foreseeable that plan members may suffer harm if decisions on, say, the medical necessity of a treatment are imprudently made.  Third, the “moral blame” from an erroneous decision to withhold a medical treatment is equally apparent....Fourth, the policy of preventing future harm would necessarily be served by imposing negligence liability on the entity directly responsible for making health care determinations affecting plan members.”

The plaintiff, he acknowledged, may have difficulty proving that Mintz suffered harm as a result of the denial of RFA or the failure to notify him of the right to external review. But given the strength of the other factors, it was wrong to reject the claim at the pleading stage, O’Neill concluded.

He did, however, agree with the trial judge that there can be no claim against Blue Cross for interference with the contract between Mintz and CalPERS, because Blue Cross as administrator was not a “stranger” to the contract. He also concluded that the intentional infliction of emotional distress claim was properly dismissed because the denial of benefits was not, under the circumstances, “extreme, outrageous, beyond the bounds of decency, atrocious, or intolerable in a civilized society.”

The appeal was argued by Jeffrey Ehrlich of the Ehrlich Law Firm for the plaintiff and Margaret M. Grignon of Reed Smith for Blue Cross.

The case is Mintz v. Blue Cross of California, B207405.


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