Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, August 11, 1993 TAG: 9308110164
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: FINCASTLE LENGTH: Medium
A lawyer for Blue Cross on Tuesday asked Circuit Judge George E. Honts III to dismiss the lawsuit based on a technical legal question revolving around a benefits-notification letter sent to Lorraine Smusz's group insurance carrier.
Smusz was insured through Botetourt County, where her husband, Frank, worked.
Bud Schill, the lawyer for Blue Cross, argued that the letter made it clear to Botetourt County that a costly and controversial cancer treatment Smusz was seeking to fight her breast cancer was not covered under the county's group plan.
Therefore, Schill said Smusz's claim that Blue Cross breached its contract by denying her coverage of the treatment is invalid, and he urged Honts to dismiss the lawsuit.
Schill also said Blue Cross had mistakenly informed the court about when exactly the notification letter was sent. At first, the company said the notification was sent on Oct. 15, 1990, before the State Corporation Commission had approved the benefits exclusion for the treatment - high-dose chemotherapy with a bone-marrow transplant.
Now, Blue Cross claims the notice was sent on Oct. 31, the same day the SCC cleared the policy change. Schill said that supports his argument that the cancer treatment was clearly - and legally - excluded from Botetourt's group plan.
However, the lawyer for Smusz, Carter Greer, argued that these issues are far from clear. Greer said Blue Cross has changed its story three times on when notice was sent to the county.
He also said that regardless of when notice was given, it remains questionable whether the notice was adequate in informing Smusz of the exclusion. He contends it was not adequate.
On both points, Greer argued that they are legal issues that a jury should decide. He asked Honts to refuse to dismiss the lawsuit, which was filed more than a year ago.
Honts said he would rule on the matter within a the week.
Lorraine Smusz died last year after she underwent the bone marrow transplant and her cancer returned. She paid for the procedure, which costs as much $150,000, with donations given to her after she went public with her story.
Frank Smusz said Tuesday he was optimistic about Honts' ruling.
"I'm keeping my fingers crossed."
by CNB