Washington Supreme Court Reverses Summary Judgment Ruling in Favor of Insurer – Reminds Courts of their Limited Duties at Summary Judgment

From the desk of Kyle Riley: The Washington Supreme Court recently denied summary judgment to a health insurer who denied one type of prostate cancer treatment over another under a “medically necessary” clause. The Court looked at the record and determined that, even without direct comparison studies, the declarations of certain experts were enough to overcome the insurer’s motion for summary judgment.

Case Pointer: In this case from the Washington Supreme Court, a health insurer denied a certain form of prostate cancer treatment in lieu of another cheaper treatment. The insurer was denied summary judgment on claims made against it alleging bad faith and Consumer Protection Act causes of action. The Court held that the trial court over-extended their reach and went beyond their duties at the summary judgment phase.

Strauss v. Premera Blue Cross, 194 Wn.2d 296 (Oct. 3, 2019).

The facts of this case were relatively straightforward. Plaintiffs, a husband and wife, challenged a summary dismissal of their action against Premera Blue Cross, their insurer, which arose after denial of coverage for proton beam therapy (PBT) to treat the husband’s prostate cancer. The policy at issue covered “medically necessary” treatment, which was defined as treatment conducted “[i]n accordance with generally accepted standards of medical practice … and not more costly than an alternative [treatment] … at least as likely to produce equivalent therapeutic or diagnostic results.” Premera denied Strauss’ PBT claim as another, cheaper, allegedly-equivalent treatment (IMRT) was available. Mr. Strauss underwent PBT and brought action to recover those costs plus bad faith damages and treble damages for violation of the Consumer Protection Act.

At the trial level, the Strauss’ claims were summarily dismissed. They had relied on the declarations from two radiation oncologists who stated PBT would likely have fewer adverse side effects than IMRT. Premera argued these declarations did not constitute “credible science” and were not sufficient to raise a question of material fact because they relied “entirely on conjecture, theory, and inadmissible cross-study comparisons.” The Court of Appeals granted summary judgment, concluding that because the record contained conflicting evidence on the issue, PBT and IMRT were equivalent as a matter of law. Plaintiffs disagreed, and so too did the Washington Supreme Court.

In reversing the trial court and the Court of Appeals, the Supreme Court looked at the weight and type of evidence required to overcome summary judgment. In this instance, the non-moving party was relying on two expert witness declarations. The Court explained that in order to survive summary judgment, an expert’s opinion must be, at least, based in fact and not conclusory based on mere assumption. Ultimately, the Supreme Court held that the lower courts were in error. In the Supreme Court’s view, the lower holdings reflected an over-extension of the court’s “limited role” at the summary judgment stage. In that stage, it is not the court’s duty to require that expert testimony be based on a specific type of research. The trial court is simply to decide whether a trial would be unnecessary.

Premera attempted to invoke the decision of Baxter v. MBA Group, 958 F. Supp. 2d 1223 (W.D. Wash. 2013). In that case, a denial of PBT treatment was upheld under an insurance contract that included the very same “medical necessity” language and definition as here in the present case and even applied it to PBT versus IMRT treatments. In Baxter, the District Court interpreted the presence of studies, models, and expert opinions that supported both sides equally as indicating that the treatments were equivalent such that neither was superior to the other. However, after analysis, the Washington Supreme Court concluded that the Baxter court erred in that determination and refused to recognize its holding as persuasive authority.