Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, August 18, 1993 TAG: 9308180183
SECTION: VIRGINIA PAGE: C3 EDITION: METRO
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: LENGTH: Medium
However, Circuit Judge George Honts III did set aside a portion of Smusz's suit against Blue Cross. He did not allow a claim that the insurance company acted in bad faith by denying coverage for a costly cancer treatment she underwent to fight breast cancer.
Her lawyer, Carter Greer of Martinsville, would not comment on whether Honts' decision on the bad-faith question weakens the lawsuit. Blue Cross also would not comment.
But on a second point, Honts wrote in an opinion dated Monday that whether Blue Cross broke its contract with Smusz by denying her the treatment remains in dispute.
That should clear the way for the lawsuit to continue.
Honts said Blue Cross needed "sterner stuff than this" to prove that its contract agreement with Smusz and her group insurance carrier was not broken. Smusz was insured through the Botetourt County government, where her husband, Frank, worked.
Last week, Richmond lawyer Bud Schill, who is representing Blue Cross, asked Honts to dismiss the lawsuit. He argued that a benefits-notification letter sent to Botetourt County made it clear that the treatment Smusz was seeking was not covered under the county's group plan. Therefore, Schill said, there was no breach of contract.
Smusz wanted to undergo a controversial procedure combining high-dose chemotherapy with a bone-marrow transplant. But Blue Cross contended that the treatment, which can cost as much as $150,000, was experimental.
Greer argued that the notice was not adequate in informing Smusz that her benefits excluded coverage of the treatment. He said Blue Cross did breach its contract and argued that a jury should decide the issue, not the court.
In his written opinion, Honts tentatively agreed that the dispute should be decided by a jury but reserved the right to change his ruling after reviewing several previous cases that could have some bearing.
Honts also said he may ask Greer and Schill to return to court to present further arguments.
Lorraine Smusz died last year when her cancer returned despite the bone-marrow transplant. She paid for the procedure mostly with donations given after she went public with her story. Her husband and two children still live in Fincastle.
by CNB