Logan Barrowers v. Aetna Health of California, In , 472 F. App'x 449 ( 2012 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                MAR 16 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LOGAN BARROWES,                                  No. 10-55795
    Plaintiff - Appellant,             D.C. No. 2:08-cv-08659-R-PJW
    v.
    MEMORANDUM*
    AETNA HEALTH OF CALIFORNIA,
    INC.,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Manuel L. Real, District Judge, Presiding
    Argued and Submitted March 8, 2012
    Pasadena, California
    Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
    Logan Barrowes appeals the district court’s order affirming Aetna’s denial
    of coverage for surgery to remove a brain tumor. Because Aetna abused its
    discretion in concluding that the surgery was not an “emergency service” covered
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    by the plan, Kearney v. Standard Ins. Co., 
    175 F.3d 1084
    , 1089 (9th Cir. 1999) (en
    banc), we reverse.
    The plan provides that out-of-network emergency services are covered if
    “the Member’s symptoms were such that a prudent layperson, possessing average
    knowledge of health and medicine could reasonably expect the absence of
    immediate medical attention to result in serious jeopardy to the Member’s health.”
    Barrowes was told by doctors who examined him in a hospital in Irvine, California,
    that he had a tumor in his brain that could rupture and blind or kill him if he did not
    have it removed immediately. A prudent layperson, given this information, would
    certainly think that he needed to arrange for surgery as quickly as possible.
    Aetna argues that Dr. Duma, an in-network neurosurgeon, could have
    provided immediate medical attention. That is clearly not so. Dr. Duma was
    definitely not available to consult over the Labor Day weekend. Given Barrowes’s
    hemophilia, surgery would have to be further delayed while blood treatment
    occurred. A reasonable layperson would therefore seek to begin the treatment if at
    all possible over the holiday weekend, so as to have the operation as soon
    thereafter as possible.
    Aetna maintains that it was nonetheless entitled to deny coverage for the
    operation because the record does not establish that Dr. Duma would not have
    2
    agreed to consult with Barrowes on the doctor’s first day in the office and to
    schedule surgery as soon as the medical circumstances allowed thereafter. Aetna’s
    reliance on this record gap to support denial of benefits is arbitrary and capricious.
    The relevant consideration is whether, given the emergent situation, Barrowes had
    any means of assuring himself in advance that Dr. Duma would be able to make
    him a priority on his return on Tuesday. Absolutely nothing in the record indicates
    that Barrowes had that assurance at the time he decided to go to Utah, where he
    was able to obtain immediate medical care due to his relation to a physician. Even
    now, nothing in the record confirms that Dr. Duma would have actually seen
    Barrowes on September 4, 2007, or operated as soon thereafter as medically
    appropriate. Furthermore, Barrowes was referred to Dr. Reichman in Utah by his
    primary care physician, Dr. Tsai. Setting aside the argument that this referral was
    operative under the plan, Barrowes at least acted as a reasonable layperson in
    relying on his primary care physician’s advice that he travel to Utah for surgery.
    Moreover, even assuming that Barrowes could have known that Dr. Duma
    was available to treat him on September 4th, that is still a full day after Barrowes
    saw Dr. Reichman in Utah and began preparing for surgery. Thus, however one
    looks at the matter, Barrowes obtained the essential operation at least a day sooner
    than he would have had he stayed in California. A reasonable lay person told that
    3
    his sight, or his life, could be lost in that day would not have waited for Dr. Duma
    if he had any alternative.
    Barrowes therefore acted reasonably in determining that seeing a doctor in
    Utah arranged by his relative was the only way to ensure “immediate medical
    attention” for his life-threatening tumor, thereby avoiding “serious jeopardy” to his
    health. Aetna mistakenly regarded the record vacuum as to Dr. Duma’s actual
    availability as somehow a basis for denying coverage for the services performed in
    Utah, rather than as establishing that Barrowes met the contract’s standard for
    coverage for emergency services by seeking an assured alternative, and ignored the
    critical consideration that medical care sooner—including one day sooner—is
    better than later when one’s very life is at stake. Because it ignored the relevant
    considerations that a prudent layperson would take into account in deciding
    whether to seek out-of-network emergency care, Aetna abused its discretion in
    concluding that Barrowes was not entitled to coverage under the policy’s
    emergency services provision.
    REVERSED.
    4
    

Document Info

Docket Number: 10-55795

Citation Numbers: 472 F. App'x 449

Judges: Thomas, Wardlaw, Berzon

Filed Date: 3/16/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024