Academic journal article Journal of Law and Health

Current Legal Intervention regarding "Experimental" Treatments Must Be Changed: An Analysis of High Doses of Chemotherapy with Autologous Bone Marrow Transplantation for Breast Cancer Patients

Academic journal article Journal of Law and Health

Current Legal Intervention regarding "Experimental" Treatments Must Be Changed: An Analysis of High Doses of Chemotherapy with Autologous Bone Marrow Transplantation for Breast Cancer Patients

Article excerpt

I. INTRODUCTION

A 35-year old woman, mother of three children, suffers from Stage IV metastatic breast cancer.(1) After finding a suspicious mass in her right breast, she underwent a mastectomy.(2) Nine months of chemotherapy and radiation followed, making the woman extremely ill.(3) Despite efforts to battle the disease, the cancer was found to have progressed.(4) The woman's doctor told her that with conventional treatment the "disease will continue to progress and she will die."(5) Given her situation, the woman's doctor suggested a relatively new approach to standard chemotherapy called High Dose Chemotherapy with Autologous Bone Marrow Transplantation

("HDC-ABMT").(6) The procedure involves the extraction of bone marrow, followed by near lethal doses of chemotherapy, finalized by the replacement of the damaged bone marrow, essentially rescuing the patient.(7) Many doctors were "encouraged by the promising preliminary data from HDC-ABMT research."(8) HDC-ABMT was not considered a cure for this woman's breast cancer. Instead, the procedure gave her a better chance of remission, a significantly less amount of time in a hospital and a shortened term of chemotherapy with its unavoidable side effects, that had previously plagued her.(9) The treatment provided an extension of time to the woman's life and ensured a modicum of comfort.(10)

At this point, the woman felt that HDC-ABMT was her only chance of survival from a disease that was literally taking over her body. She decided to go though with the procedure. Before being admitted into the health care facility, however, the institution required pre-secured financing or pre-certification from a prospective patient's insurance company, guaranteeing that the treatment costs would bere imbursed.(11) The procedure costs between $100,000 and $150,000 per patient.(12) She automatically assumed that her insurance coverage would cover the expense.

Her insurance company denied her request, deeming High Doses of Chemotherapy with Autologous Bone Morrow Transplantation ("HDC-ABMT") as being "experimental" and "investigative", thus falling outside of coverage.(13) The woman not only faced the emotional distress of realizing that conventional treatment could no longer help her, but now had to deal with the reality that her only course of action was now unattainable.(14) When she signed her health insurance contract she thought she would be covered for anything. She had no idea that a provision, a simple sentence of text, would essentially cost her her life. As she paid her premiums every month, she felt secure, protected from any possible health conditions that she would encounter.

She had undergone treatments that had proven ineffective.(15) She had been told that death was inevitable without HDC-ABMT.(16) The health care institution which promised to provide her with such treatment required pre-paymen, that her insurance company denied. Her options looked bleak. She decided to turn to the law for remedy.

Instead of entering into a personal injury lawsuit, she found herself involved in a contracts dispute. The language of the insurance contract was being scrutinized, instead of the injustice of the denial of coverage. The way in which the word "experimental" was defined became more important then how young this woman was and the number children she would leave behind if she was not able to receive HDC-ABMT treatment. The more ambiguous the term, the more likely she would receive a possible preliminary injunction, allowing her to have the amount of money to proceed with treatment.(17)

Unfortunately, the woman's law suit against her insurance company was also preempted by the Employment Retirement Income Security Act of 1974 (ERISA).(18) ERISA contains a vague preemption provision that supersedes "any and all State laws insofar as they may relate to any employee benefit plans."(19) The woman could not bring any further state common law claims, such as emotional distress, against her insurance company under ERISA. …

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