Although courts in these cases have been relatively sympathetic to the insured, they have often disagreed with the insurer's conclusions. For instance, in the case of one recent case, the insurer won a partial victory, although it was not enough; in others, the insured has lost in part because the insurer's ruling did not follow its own procedures and the courts have refused to make an advisory opinion. Another significant problem is that, while in theory the insured could have a contract that excluded experimental procedures, they often lack the capacity to understand the potential risks associated with those procedures. In such cases, the insurer may simply ignore its own policy or contract and accept the insurance agent's advice about exclusion from coverage. While the court's role is to determine the risks of treatment, many experts disagree with the court's analysis. Littauer, a cardiologist and physician at Vanderbilt Medical Center in Nashville, TN, says it may be more important for the insured to make their own decision. Littauer suggests that the court should have looked more closely at the circumstances in a patient's case, rather than assuming that the insured had made the same decision the physician did.
Littauer also believes that the risks can be mitigated by the policy itself. As the cases below demonstrate, there is ample opportunity for an insured to discover what services will be excluded from coverage. The courts in the cases below often rely on the facts of the case to conclude that the insured could never reasonably have understood the implications of these terms. Case 7: Bexar County Health Department vs. Bexar County Health Department was charged with performing, and providing the benefits to individuals in their care, autologous bone marrow transplant.
The patient, a 50-year-old man, presented with a history of chronic liver disease and underwent bilateral ablation of a liver-forming tumor. The tumor had metastasized to his lung. Following the ablation, the tumor was removed, and the patient verapamil hcl er normally. The court, in finding that ABMT was not experimental, considered that, in fact, ABMT was experimental. Verapamil hcl er the question of whether ABMT had clinical relevance, the court looked to a number of factors.