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Doe v. Louisiana Health Service & Indemnity Co.

Court of Appeals of Louisiana, Fourth Circuit

May 20, 2015

JANE DOE
v.
LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY D/B/A BLUE CROSS/BLUE SHIELD OF LOUISIANA

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2009-00164, DIVISION " C" . Honorable Sidney H. Cates, Judge.

C. Gordon Starling, Jr., LAW OFFICE OF GORDON STARLING, LLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.

Charles A. O'Brien, III, Allison N. Pham, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Chief Judge James F. McKay, Judge Edwin A. Lombard, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra C. Jenkins. LANDRIEU, J., CONCURS WITH REASONS. LOBRANO, J., DISSENTS WITH REASONS.

OPINION

Page 133

[2014-0789 La.App. 4 Cir. 1] Edwin A. Lombard, Judge

 The Appellant, Louisiana Health Service & Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana (" Blue Cross" ), seeks review of an April 23, 2014 judgment finding that it violated the Louisiana Genetic Information Non-Discrimination Act, La. Rev. Stat. 22:1023 (" the Act" ) and awarding $50,000 in damages, plus attorneys' fees and costs to Appellee, Jane Doe. We affirm the judgment of the district court finding that no legal errors were committed nor was the judgment manifestly erroneous.

Facts

From childhood through early adulthood, Ms. Doe was covered as a dependent by her father's Blue Cross insurance policy. When Ms. Doe was eight years old, a treating physician noted that she had some physical characteristics of Marfan syndrome, which is a genetic disorder of the connective tissue.[1] Claims for her treatment were submitted by her healthcare provider to Blue Cross with the International Statistical Classification of Disease (" ICD" )-9 code of 759.82, which is the diagnostic code for Marfan syndrome.

[2014-0789 La.App. 4 Cir. 2] From 1993 through the late 1990s, claims were made by various treating physicians of Ms. Doe that were identically coded for Marfan syndrome. Other than these initial claims, no other medical information itself was submitted to Blue Cross related to Marfan syndrome. Blue Cross maintains that the only information in its database pertaining to Ms. Doe's diagnosis of Marfan syndrome is ICD-9 code 759.82.[2] Regarding the claim submissions, the parties stipulated that:

Page 134

[n]owhere in the claim submission is there any indication of how a physician arrived at the ICD-9 code, i.e., whether the patient [Ms. Doe] told them, whether the physician made the determination from his/her examination, or whether the physician did some specific testing and what kind of tests were performed.

In November of 1994, Ms. Doe was tested for Marfan syndrome, but the test results were inconclusive.[3] Although she was monitored for the development of further Marfan syndrome characteristics throughout her adolescence, Ms. Doe never received treatment for and was never diagnosed with Marfan syndrome. The parties stipulated that Ms. Doe never developed Marfan syndrome despite having some inherited physical characteristics suggestive of the syndrome.[4]

When she was approximately 23 years old, Ms. Doe applied for individual insurance coverage with Blue Cross. The application or medical questionnaire completed by Ms. Doe did not list any medical problems, issues, or history. [2014-0789 La.App. 4 Cir. 3] Additionally, the questionnaire did not have any questions relating to genetic information. During the process of reviewing Ms. Doe's application, Blue Cross' underwriting department reviewed her prior claims history and medical condition while she was insured under her father's policy. Eventually, it denied her health coverage application because her claims history revealed numerous Marfan syndrome codes.

Procedural History

Ms. Doe filed suit against Blue Cross alleging violations of and seeking damages under the Act. Trial was held in February 2014. In a judgment dated April 23, 2014, the district court ruled in favor of Ms. Doe, finding Blue Cross liable for negligent disclosure of her genetic information, and awarded her statutory damages in the amount of $50,000 with judicial interest, costs and reasonable attorney fees.

Blue Cross timely field the instant appeal and raises two (2) assignments of error on appeal:

1) The district court committed a legal error in its reading and application of La. Rev. Stat 22:1023, in finding that a diagnostic code constituted " Genetic Information," as defined in that statute.
2) The district court committed legal error in its analysis and application of La. Rev. Stat 22:1023, in finding that Blue Cross' reference to a diagnostic code constituted negligent " Disclosure" of Ms. Doe's " Genetic Information."

Ms. Doe filed an answer to the appeal arguing that she is entitled to statutory damages of $100,000 because the disclosure committed by Blue Cross was willful.

[2014-0789 La.App. 4 Cir. 4] Standard of Review

Appellate jurisdiction of courts of appeal extends to both law and facts. Arias v. Stolthaven New Orleans, L.L.C., 08-1111, ...


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