5 Fla. L. Weekly Supp. 822a
Injunctions — Insurance — Health maintenance organizations — Coverage — Exclusions — Experimental treatment — Hyperbaric oxygen therapy for condition described as hemorrhagic cystitis or radiation enteritis — Under one reasonable interpretation of contract at issue, Hayes Medical Technology Directory cannot be source of reliable evidence with respect to whether medical treatment sought should be considered experimental, and reliance on the Directory does not amount to a justifiable basis for claiming exclusion to coverage — Hayes Directory is not a published report by U.S. Department of Health and Human Services, U.S. Public Health Sources, National Institute of Health or U.S. Office of Technology Assessment — Insurer enjoined from denying coverage for treatment — Bond set at $1000
LISE GREENE, Plaintiff, vs. WELL CARE HMO, INC., Defendant. 15th Judicial Circuit, in and for Palm Beach County. Case No. CL 98-5538 Al. July 2, 1998. Edward Fine, Judge.
PRELIMINARY INJUNCTION
This cause came before the Court on Plaintiff, Lise Greene’s Motion for Preliminary Injunction. The parties appeared before the Court at a hearing on July 2, 1998, and submitted memoranda of law in support of their respective positions. The Court having reviewed the file and memoranda, having heard the argument of counsel, and otherwise being fully advised in the premises, finds and decrees as follows:
Coverage is denied on the basis of the Hayes Medical Technology Directory which is a reference apparently recognized in the insurance industry as authoritative on the issue of whether certain medical treatments should be considered experimental. Defendant claims the treatment sought is for a condition they describe as radiation enteritis which Hayes lists as not covered by the Health Care Financing Agency and not accepted by the Undersea and Hyperbaric Medical Society.
The basis of the experimental exclusion is:
D. Reliable evidence shows that such evaluation, treatment, therapy, or device has not been proven safe and effective for the treatment of the Condition in question, as evidenced in the most recently published medical literature in the United States, Canada, or Great Britain, using generally accepted scientific, medical, or public health methodologies or statistical practices.
The “reliable evidence” upon which this is based must meet the following provision:
Published reports, articles, or other literature of the United States Department of Health and Human Services or the United States Public Health Service, including any of the National Institutes of Health, or the United States Office of Technology Assessment.
The Hayes report is a published report but not from any United States agency. It is a report about the reports of certain United States agencies.
The beneficiary has initially made a probative showing of: general coverage which is undisputed. Of irreparable or serious harm due to inability to obtain valuable medical treatment affecting her health absent injunctive relief, said treatment being urgently needed in order to avoid harm. A rational basis justifying the treatment and an inability to pay for or get credit so as to obtain treatment in the meantime, and an inadequate legal remedy.
Also, the detriment to Defendant seems by comparison minimal. Defendant seems almost certain to incur future costs for treatment if the hyperbaric treatment is not utilized. It appears the short term detriment is not an incremental increase in the relative costs of near future treatment.
Since this is an issue over contract exclusion to coverage it is in the nature of a prohibitory injunction, not a mandatory injunction, there being different levels of proof required, with prohibitory being the lower level of: likely success on the merits, versus a clear showing of entitlement. See, Velez v. Prudential Health Care Plan of New York, Inc., 943 F.Supp. 332 (U.S.D.C. S.D. NY 1996).
Defendant cannot implicitly add or detract from the policy language. The policy language can be interpreted two ways, one excluding coverage — as presently put forth by Defendant — and one not excluding coverage, to wit: The “reliable evidence” as defined in the policy is a discrete subset of all possible sources of evidence, and sources outside this discrete subset do not meet the policy definition of reliable evidence. The Hayes Directory is not a published report by the United States Department of Health and Human Services, the United States Public Health Sources, the National Institute of Health or the United States Office of Technology Assessment. Consequently under one version, it cannot be the source of reliable evidence. See, Dahl-Eimers v. Mutual of Omaha Life Insurance Company, 986 F.2d 1379 (11th Cir. 1993).
Therefore under one sound version of interpretation of this policy, the reliance on the Hayes Directory does not amount to a justifiable basis for claiming an exclusion to coverage.
The Court finds that Plaintiff has shown a substantial likelihood that she will prevail on the merits of her claim for health insurance coverage.
Bond: The Court sees little significant harm to Defendant in the near future since the relative cost differential with or without this treatment is not major.
This is not an injunction solely to prevent physical injury, see, Rule 1.610(b), Florida Rules of Civil Procedure, so a bond is required.
It is Ordered that a bond conditioned to pay costs or damages sustained by Defendant if wrongfully enjoined is set at $1,000.00.
IT IS DECREED that the preliminary injunction is granted. Upon the posting of said bond of $1,000.00, Defendant, Well Care HMO, Inc. is hereby enjoined from denying Lise Greene coverage for hyperbaric oxygen therapy for treatment of hemorrhagic cystitis or radiation enteritis, and Defendant is ordered to immediately certify coverage for Lise Greene for hyperbaric oxygen therapy for said treatment.
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