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Strauss v. Cross

Supreme Court of Washington, En Banc

October 3, 2019

JOHN STRAUSS and MICHELLE STRAUSS, husband and wife, and their marital community, Petitioners,

          STEPHENS, J.

         John and Michelle Strauss challenge the Court of Appeals decision affirming summary dismissal of their action against Premera Blue Cross, which arises out of the denial of coverage for proton beam therapy (PBT) to treat John Strauss's prostate cancer. At issue is whether the Strausses have established the existence of a genuine issue of material fact regarding PBT's superiority to intensity-modulated radiation therapy (IMRT), thereby demonstrating that proton beam therapy is "medically necessary" within the meaning of their insurance contract. We hold that they have, and we therefore reverse the Court of Appeals' decision and remand for a jury trial on the disputed facts.


         John Strauss was diagnosed with prostate cancer in September 2008. He is insured under a Premera health insurance policy that covers "medically necessary" treatment, defined as treatment conducted "[i]n accordance with generally accepted standards of medical practice... and not more costly than an alternative [treatment] ... at least as likely to produce equivalent therapeutic or diagnostic results." Clerk's Papers (CP) at 212. After consulting with Dr. David Bush, Strauss elected to pursue PBT. Dr. Bush recommended PBT over IMRT because, although no clinical trials directly compared the two forms of treatment, he believed that PBT resulted in fewer adverse side effects for the majority of patients.

         On November 12, 2009, Strauss sought preauthorization from Premera to undergo PBT rather than IMRT, but Premera denied the request on the ground PBT was not "medically necessary" within the meaning of the policy. CP at 243. Strauss twice unsuccessfully pursued internal appeals of this decision with Premera. At Strauss's request, Premera sought an external review in July 2010, which upheld the denial of coverage. Meanwhile, Strauss completed PBT in April 2010.

         The Strausses subsequently filed this action in superior court, seeking recovery for the cost of PBT, as well as insurance bad faith damages and treble damages for violation of the Consumer Protection Act, chapter 19.86 RCW. The parties stipulated that PBT is costlier than IMRT and is at least as effective in treating prostate cancer. But Premera moved for summary judgment on the ground that the Strausses could not meet their burden to show PBT was "medically necessary" under the insurance plan. CP at 37-38. The parties agreed that PBT would qualify as "medically necessary" if it resulted in fewer adverse side effects compared to IMRT; Premera argued that the Strausses had failed to raise a genuine issue as to that fact. CP at 40.

         Acknowledging the absence of clinical studies directly comparing the two therapies, the Strausses relied on declarations from two board-certified radiation oncologists who opined that PBT would likely lead to fewer side effects because it irradiates a smaller amount of healthy tissue. Premera responded that these expert opinions did not constitute "credible science" and that, in the absence of "randomized controlled trials," the Strausses' arguments about side effects "rely entirely on conjecture, theory, and inadmissible cross-study comparisons." CP at 19. Premera did not move to exclude any of the Strausses' expert declarations, however. Instead, it discounted those declarations on their merits, arguing that, even if one were to credit nonrandomized studies, some of those studies show that PBT may be equivalent to or worse than IMRT in terms of side effects. Premera admitted that developments in radiation therapy, generally, have been aimed primarily at reducing incidental radiation to healthy tissue. But it cited publications, by the National Comprehensive Cancer Network and two other professional organizations, stating that there is currently no clear evidence that PBT has any advantages over IMRT. When it moved for summary judgment dismissal, Premera relied solely on these publications and the federal district court's decision in Baxter v. MBA Group Insurance Trust Health & Welfare Plan, 958 F.Supp.2d 1223 (W.D. Wash. 2013), which it characterized as involving facts "almost identical" to this case. CP at 37. The superior court granted Premera's motion.

         The Court of Appeals affirmed, even though it acknowledged that the record contained conflicting evidence on the question of side effects, the sole issue before the superior court on Premera's motion for summary judgment. Specifically, the court stated, "[T]he record establishes there are peer-reviewed medical studies that show the side effects of PBT may be superior to IMRT and other peer-reviewed medical studies that show the side effects of IMRT maybe superior to PBT." Strauss v. Premera Blue Cross, 1 Wn.App. 2d 661, 683, 408 P.3d 699 (2017). It then concluded that, because the record contained conflicting evidence on this issue, PBT and IMRT were equivalent treatments as a matter of law, "absent clinical evidence directly comparing [them]." Id. at 683-84. We granted Strauss's petition for review. Strauss v. Premera Blue Cross, 190 Wn.2d 1025 (2018).


         We review summary judgments de novo. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008) (citing City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006)). '"Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'"" Id. (alteration in original) (quoting Locke v. City of Seattle, 162 Wn.2d 474, 483, 172 P.3d 705 (2007) (quoting CR 56(c))). "When determining whether an issue of material fact exists, the court must construe all facts and inferences in favor of the nonmoving party." Id. (citing Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998)).

         As noted, there is no dispute that PBT costs more than IMRT and is equally effective in curing prostate cancer. Nor is there any dispute over the meaning of the insurance contract provision at issue here: for purposes of this appeal, the parties agree that PBT is "medically necessary" if it results in fewer side effects than IMRT. Thus, the sole question presented in this case is whether the Strausses raised a genuine issue of material fact as to PBT's relative superiority, in terms of side effects, to IMRT.

         Generally speaking, expert opinion on an ultimate question of fact is sufficient to establish a triable issue and defeat summary judgment. Eriks v. Denver, 118 Wn.2d 451, 457, 824 P.2d 1207 (1992) (citing Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979)). However, "speculation and conclusory statements will not preclude summary judgment." Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016) (citing Eicon Constr., Inc. v. E. Wash. Univ., \IA Wn.2d 157, 169, 273 P.3d 965 (2012)). "The expert's opinion must be based on fact and cannot simply be a conclusion or based on an assumption if it is to survive summary judgment." Id. (citing Melville v. State, 115 Wn.2d 34, 41, 793 P.2d 952 (1990)).

         Evaluating the declarations on summary judgment, the Court of Appeals concluded that the record contained conflicting evidence on the issue of side effects: "the record establishes there are peer-reviewed medical studies that show the side effects of PBT may be superior to IMRT and other peer-reviewed medical studies that show the side effects of IMRT may be superior to PBT." Strauss, 1 Wn.App. 2d at 683. Yet, it concluded that PBT and IMRT were therefore equivalent treatments as a matter of law, "absent clinical evidence directly comparing [them]." Id. at 683-84. In other words, the Court of Appeals held that the Strausses were required to provide evidence in the form of randomized clinical trials in order to defeat summary judgment. Id.

         This holding was error. Requiring expert medical opinion testimony to be based on a specific type of research goes beyond the court's limited role at the summary judgment stage, which is simply to decide whether a trial is unnecessary. See Reese v. Stroh, 128 Wn.2d 300, 307, 907 P.2d 282 (1995) (trial court erred by excluding medical expert testimony solely because it was not based on "statistically significant studies" directly supporting expert's opinion). Indeed, Premera seems to concede this point in some of its briefing. See Premera Blue Cross's Resp. to Amicus Br. of Wash. State Ass'n for Justice Found, at 4 ("[i]t is correct... that head-to-head clinical trials are not required as a basis for medical opinion testimony [and that a] doctor ... could opine based on his own observation"). There is no dispute that the Strausses' experts were qualified to testify, only a dispute as to the weight or credibility of their opinion testimony. The credit to be given to any witness's testimony, including expert opinion testimony, is quintessentially a matter for the trier of fact to determine. Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136, 146, 341 P.3d 261 (2014); see also Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 606, 260 P.3d 857 (2011) ("Evidentiary rules provide significant protection against unreliable, untested, or junk science.").

         Premera urges this court to embrace the United States District Court's decision in Baxter and uphold summary dismissal. The insurance contract at issue in Baxter had a "medical necessity" definition identical to the provision at issue in this case. Baxter, 958 F.Supp.2d at 1228-29. Like the Strausses, the plaintiff in Baxter argued that the plan covered PBT "despite the lack of randomized clinical trials comparing [PBT] to other forms of radiation therapy for treatment of prostate cancer," because observational studies and theoretical models supported PBT's superiority. Id. at 1232. The defendant-insurer countered that PBT was definitely costlier than IMRT and had not been proved more effective. Id. at 1230. The court ultimately agreed with the insurer, finding that, where "[n]o study cited by either party provides statistically significant evidence that one therapy is superior to the other," the plaintiff had not met his burden to prove PBT was "medically necessary." Id. at 1238.

         While the Court of Appeals found Baxter persuasive, [1] we do not. The Baxter court, considering cross motions for summary judgment on very similar facts, acknowledged that the evidence before it, in the form of observational studies, theoretical models, and expert opinion, supported both parties' arguments. 958 F.Supp.2d at 1236-38. From this conflicted record, it erroneously concluded that PBT and IMRT are therefore equivalent treatments as a matter of law, neither superior to the other in terms of side effects or secondary malignancy. Id. at 1237 ("the Court concludes that the record demonstrates that IMRT and [PBT] provide equivalent cancer treatment with comparable side-effects"). In reaching that conclusion, the court weighed the credibility of conflicting medical studies and essentially rejected all of them:

While Plaintiff points to observational studies demonstrating that proton therapy may slightly reduce certain side-effects in some situations, it appears that it is just as likely to increase other side effects. . . . Plaintiff focuses on studies involving mathematical modeling that show that the long-term risk of developing a secondary malignancy may be higher with [PBT]. . . . Defendants focus on comparative studies that show that other side-effects, including gastrointestinal side-effects may be slightly more severe ...

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