On Behalf of | Sep 3, 2020 | Medical Malpractice

In Strauss v. Premera Blue Cross, 449 P.3d 640 (Wash. 2019), the Washington Supreme Court considered the concept of medical necessity.

In Strauss, the insured plaintiff was diagnosed with prostate cancer. The insured’s doctor recommended proton beam therapy rather than traditional radiation therapy. The insured’s doctor believed that proton beam therapy had fewer side effects than the alternative accepted treatment. Premera Blue Cross denied the request for medical authorization for the PBT on the ground that PBT was not “medically necessary.” The policy defined “medically necessary” as being “[i]n accordance with generally accepted standards of medical practice . . . and not more costly than the alternative [treatment] . . . at least as likely to produce equivalent therapeutic or diagnostic results.”

In a split decision, the Washington Supreme Court found that the insured could proceed to trial on the bad faith claim arising from Premera’s refusal to pay for the PBT. At issue was the trial court’s requiring evidence in which expert medical opinion testimony had to be based on a specific type of research. The Washington Supreme Court found that the trial court had exceeded its authority. The conflicting expert declarations, observational studies, as well as therapeutic models, created a sufficient factual basis regarding whether PBT had fewer side effects than the alternative treatment and therefore was medically necessary within the meaning of the policy. The insured was not required to produce randomized clinical studies comparing the two treatments to create an issue of fact. The Supreme Court also noted that the type of opinion testimony that was proffered was quintessentially a matter for the trier-of-fact.