Doroshow v. Hartford Life & Accident Insurance

RENDELL, Circuit Judge,

dissenting.

Jay Doroshow is entitled to benefits because he was neither given advice nor treated for ALS, prior to his diagnosis of that condition in March 2007 — nearly one year after his doctor had not only diagnosed him with a different condition but had actually rejected a diagnosis of ALS. The majority’s conclusion that his doctor’s negative diagnosis of ALS during the relevant three-month period somehow renders his later-diagnosed ALS a “pre-existing condition” under Hartford’s policy rests upon a seriously flawed reading — or total disregard — of the definition of this phrase provided in the Hartford policy, as well as two precedents of our court construing similar policy terms. McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618 (3d Cir.2004); Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d 159 (3d Cir.2002).

Hartford’s policy defines “pre-existing condition” as “a condition for which medical treatment or advice was rendered, pre *237 scribed, or recommended within 12 months (3 months for exempt employees) ... prior to [the participant’s] effective date of insurance.” Critically, the policy does not say advice as to the possibility of ALS, as the Hartford Plan Administrator reasoned; advice about ALS, as the District Court loosely reasoned; or advice relating to or pertaining to ALS, as the majority seeks to paraphrase. Rather, determination of a pre-existing condition requires provision of advice or treatment for that condition, here ALS, in April, May, or June 2006. 3

Construing “for” as synonymous with “relating” or “pertaining” to, the majority disregards not one, but two, binding precedents of our court interpreting nearly identical policy language. In Lawson, Elena Lawson was diagnosed, and received treatment, for an upper respiratory tract infection. Lawson, 301 F.3d at 161 . After her symptoms persisted, however, doctors diagnosed her with leukemia, and concluded that her earlier symptoms stemmed from that condition. Lawson’s insurance policy defined “pre-existing condition” as a “Sickness, Injury, disease or physical condition for which medical advice or treatment was recommended by a Physician or received from a Physician....” Id. Determining that Lawson’s leukemia was a preexisting condition, the insurer denied her claim. Reversing, the District concluded, “[I]n order to be treated for leukemia, there must have been some awareness that the disease existed at the time treatment or advice was rendered.” Id. at 162 . We affirmed, holding that the word “for” “connotes intent.” Id. at 165 . We reasoned— quite correctly — that “it is hard to see how a doctor can provide treatment ‘for’ a condition without knowing what that condition is.... ” Id. Providing advice or treatment for the symptoms of a later-diagnosed condition, we emphasized, does not constitute treatment for that condition. In rejecting an expansive definition of “for,” we explained:

Although we base our decision on the language of the policy, we note that considering treatment for symptoms of a not-yet-diagnosed condition as equivalent to treatment of the underlying condition ultimately diagnosed might open the door for insurance companies to deny coverage for any condition the symptoms of which were treated during the exclusionary period. To permit such backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of preexisting condition as to make that term meaningless: any prior symptom not inconsistent with the ultimate diagnosis would provide a basis for denial.

Id. at 166 (internal citation omitted).

I submit that the majority here has fallen into this very trap by essentially concluding that, because Doroshow likely had ALS all along, ALS was a “pre-existing condition.” 4 In so reasoning, the majority does a disservice to the policy language, to our precedent in Lawson, and to Doroshow himself.

In a subsequent opinion, McLeod , we went even farther than in Lawson, opining that policy language defining preexisting condition as including symptoms for which *238 the claimant received medical care also implied “some intention on the part of the physician or of the patient to treat or uncover the underlying condition which is causing the symptom.” 372 F.3d at 628 . As in Lawson, we distinguished a “suspected condition without a confirmatory diagnosis” and a “misdiagnosis.” Id. at 628 . Although the insurer in McLeod “placed great stock” in differences in its definition of pre-existing condition and that of the insurer in Lawson, we concluded that, when policy language requires that advice be “for” symptoms, “for” requires an “intent” to treat the symptoms of the ultimately-diagnosed condition. Accordingly, we reversed the District Court’s determination that Hartford’s denial of benefits was reasonable.

Today, the majority inexplicably casts these precedents aside, referring to their dicta without discussing their holdings. Instead, the majority concludes that Doroshow received advice for ALS, because ALS was a “suspected condition without a confirmatory diagnosis.” However, to reach such a conclusion requires wholesale revision of Dr. Goldstein’s note of May 16, 2006— the only evidence of diagnosis, treatment, or advice during the look-back period. The note does not identify ALS as a suspected condition. To the contrary, Dr. Goldstein indicated, “Lumbosacral plexitis is the most recent diagnosis. Was not felt to be ALS.” Doroshow did receive a “confirmatory diagnosis” and advice — ■ not for ALS, but for lumbosacral plexitis.

Jay Doroshow is now suffering from ALS. It was not diagnosed until March 15, 2007— ten months after his diagnosis of lumbosacral plexitis. Hartford’s denial of coverage based on its view that ALS was a pre-existing condition was arbitrary and capricious, not only because it contravened the definition of the term expressly provided in its policy, but also because this court has twice opined — indeed, once involving Hartford — that “for” connotes intent and is not synonymous with “related to” or “regarding.” 5 Accordingly, I would reverse and remand for entry of an order requiring that benefits be paid to Jay Doroshow.

. The parties agree that the "pre-existing condition” from which Doroshow suffered was ALS.

. The majority, indeed, focuses on Doroshow’s medical history, including the initial suspicion of one of his doctors — prior to the three month look-back period — that Doroshow suffered from ALS. But Hartford’s own definition of ‘pre-existing’ as it applies to Doroshow means during the three months before July 1, 2006. As discussed below, during that three-month period Doroshow’s doctor rejected the ALS diagnosis in favor of a diagnosis of lumbosacral plexitis.

. We have no difficulty concluding here, as we did in McLeod , that application of the “pre-existing condition” exclusion to Doroshow's later-diagnosed condition was arbitrary and capricious.