In granting summary judgment for Blue Cross, Chief U.S. District Judge Henry T. Wingate wrote in his opinion the Blue Cross’ policy is not ambiguous. Article XVI of Dr. Rich Ellison’s benefit plan, paragraph 30, states that, “[w]eight reduction programs or treatment for obesity including any Surgery for morbid obesity or for removal of excess fat or skin following weight loss, regardless of Medical Necessity, or Services at a health spa or similar facility,” are excluded from benefits, according to the opinion.
In addition, the court pointed out another paragraph of the policy provides an exclusion from benefits for “[c]harges for all medical complications which arise as the result of the Member receiving non-covered medical, surgical or diagnostic services. Examples of non-covered medical, surgical or diagnostic services include, but are not limited to, gastric bypass surgery, liposuction, cosmetic surgery and elective abortions.”
Ellison, a radiologist at St. Dominic’s Hospital in Jackson, Mississippi, argued that he suffered from severe insulin-dependent diabetes mellitus with abnormal lipid and cholesterol levels. He said he is allergic to the medications ordinarily prescribed for high lipids and cholesterol, so his physician, Dr. Joseph A. Kuhn recommended that Ellison undergo gastric bypass surgery, despite the fact he was not an ordinary candidate for such a procedure as he was not morbidly obese.
The court pointed out the Baylor University admitting history and physical documents state that Ellison’s chief complaint was morbid obesity. The physician progress record notes that Ellison’s pre-operation diagnosis was morbid obesity, and under the paragraph describing the indications for the recommended procedure appears the statement, “[t]his 42-year old male presents with a history of morbid obesity with a weight of 234 pounds and a body mass index of 34.”
It was only following the surgery and after complications had developed that Kuhn wrote that he had recommended this surgery for diabetes and bad lipids.
The opinion is here .