Surprisingly, the Wisconsin Supreme Court recently split 5-4 on this seemingly noncontroversial question. The case is Strauss v. Premera Blue Cross, https://www.courts.wa.gov/opinions/pdf/954496.pdf, and the issue was whether proton beam therapy (PBT) causes fewer adverse side effects than intensity-modulated radiation therapy (IMRT) and therefore was “medically necessary” within the meaning of the plaintiff’s health insurance policy. The parties agreed that PBT and IMRT are equally effective in treating prostate cancer and that PBT is more expensive; consequently, unless PBT causes fewer side effects, it is not “superior” to IMRT and therefore was not “medically necessary” as defined in the policy. The insurance carrier, Premera Blue Cross, took the position (unsurprisingly) that PBT does not cause fewer side effects and therefore refused to cover it; when the plaintiff sued, Premera moved for summary judgment. The majority opinion concisely summarizes the parties’ submissions to the trial court as follows:
Acknowledging the absence of clinical studies directly comparing the two therapies, the Strausses relied on declarations from two board-certified radiation oncologists who opined that PBT would likely lead to fewer side effects because it irradiates a smaller amount of healthy tissue. Premera responded that these expert opinions did not constitute ‘credible science’ and that, in the absence of ‘randomized controlled trials,’ the Strausses’ arguments about side effects ‘rely entirely on conjecture, theory, and inadmissible cross-study comparisons.’ Premera [argued] that, even if one were to credit nonrandomized studies, some of those studies show that PBT may be equivalent to or worse than IMRT in terms of side effects….[Premera also] cited publications by the National Comprehensive Cancer Network and two other professional organizations, stating that there is currently no clear evidence that PBT has any advantages over IMRT [in terms of side effects]. When it moved for summary judgment dismissal, Premera relied solely on these publications….
On this record, the trial court granted summary judgment, the intermediate court of appeals affirmed, and the supreme court reversed in a 5-4 decision. The majority and the dissent cited and quoted the same Wisconsin precedent in support of their respective positions: “Generally speaking, expert opinion on an ultimate question of fact is sufficient to establish a triable issue and defeat summary judgment. However, speculation and conclusory statements will not preclude summary judgment. The expert's opinion must be based on fact and cannot simply be a conclusion or based on an assumption if it is to survive summary judgment.” (Citations and internal quotation marks omitted.) But they reached opposite conclusions as to how the “no speculation” standard applied to the expert opinions in the case at hand. In the majority’s view, the court below ignored fundamental summary judgment principles:
[T]he Court of Appeals concluded that the record contained conflicting evidence on the issue of side effects: “The record establishes there are peer-reviewed medical studies that show the side effects of PBT may be superior to IMRT and other peer-reviewed medical studies that show the side effects of IMRT may be superior to PBT.” Yet, it concluded that PBT and IMRT were therefore equivalent treatments as a matter of law, “absent clinical evidence [i.e., randomized clinical trials] directly comparing [them]”….This holding was error. Requiring expert medical opinion testimony to be based on a specific type of research goes beyond the court’s limited role at the summary judgment stage, which is simply to decide whether a trial is unnecessary. Indeed, Premera seems to concede this point in some of its briefing [when it acknowledges that] “head-to-head clinical trials are not required as a basis for medical opinion testimony [and that a] doctor...could opine based on his own observation.” There is no dispute that the Strausses’ experts were qualified to testify, only a dispute as to the weight or credibility of their opinion testimony. The credit to be given to any witness's testimony, including expert opinion testimony, is quintessentially a matter for the trier of fact to determine. [Emphasis added; citations omitted.]
The dissent sees the record through entirely different lenses. First, it points out that the plaintiff’s effort to reverse the denial of coverage through Premera’s internal appeals process, which included reviews by two independent radiation oncologists and an independent review organization, failed; therefore, in the dissent’s view, “reasonable minds could not differ regarding the reasonableness of Premera’s denial-of-coverage decision.” Second, the dissent expands greatly on the majority’s reference (in the first quotation above) to “publications by the National Comprehensive Cancer Network and two other professional organizations” relied upon by Premera, quoting at length from the three organizations’ guidelines and emphasizing their conclusion (which the majority acknowledges) that “there is no clear evidence supporting a benefit or decrement to [PBT] over IMRT for either treatment efficacy or long-term toxicity.” The dissent argues that these guidelines “reflect a clear consensus within the oncological community that PBT is not a medically necessary treatment for Strauss's prostate cancer” and that the opinions of the plaintiff’s experts can’t overcome that “consensus.” It rejects the opinion of one expert (the plaintiff’s treating radiation oncologist) as “equivocal”: When asked at deposition whether there is a difference between PBT and IMRT in terms of side effects, he replied, “There's data to support, I think, both sides….[T]he evidence [of PBT’s superiority] is not as strong as we would like to see.” And it takes the other expert to task for acknowledging that “there have not been direct randomized trials...but rather one must review the literature to infer the advantages and disadvantages.” In other words, contrary to the majority, the dissent denies that an expert’s own opinion, based on interpretation of the literature, can be valid.
Finally, the dissent devotes two pages to a federal case, Baxter v. MBA Group Insurance Trust Health & Welfare Plan, 958 F. Supp. 2d 1223 (W.D. Wash. 2013), in which the district court granted summary judgment to the insurance carrier on essentially the same facts. Premera relied heavily on this case, as did the court below, and the dissent strongly agrees with it. But the majority dismisses Baxter out of hand because the court “weighed the credibility of conflicting medical studies and essentially rejected all of them….This is inappropriate at the summary judgment stage.”
So, why is there a 5-4 split on what is essentially a technical legal issue? This case has no political implications, nor does it pit a “conservative” side against a “liberal” side. Perhaps the dissent, as a matter of judicial policy, leans in favor of summary judgment in a close case; it devotes two pages to a discussion of the importance of summary judgment, including a long quotation from the U.S. Fifth Circuit Court of Appeals and a short one from the Supreme Court, and noting that “every hour of litigation is costly both to the parties and the taxpayers, and the expense should not be incurred needlessly” (also a quote from a Fifth Circuit case). Perhaps the majority is irritated by the notion that it should give any weight whatsoever to a 6-year-old opinion from a federal trial judge in a faraway state: “We decline to follow Baxter and instead adhere to settled summary judgment principles under Washington law.” I have no answer, but I think it’s a very interesting question. My own opinion is that, just as an issue for the trier of fact is defined as one on which reasonable minds can differ, a legal issue that is decided by a 5-4 vote is, by definition, one on which reasonable legal minds can differ.
