The court agreed that even though the procedure was experimental as defined by the HMSA's health plan, a provision in the Hawai'i Patients' Bill of Rights and Responsibilities Act would overrule the plan's restrictions.

Never before has a state court ruled that an insurer must pay for an experimental treatment even though it's not covered by the patient's health plan. The ruling was based on the "medical necessity" provision in the Patients' Bill of Rights.

"It is the first time we have ruled on this," said Insurance Commissioner J.P. Schmidt. On a number of fronts, "it is an important interpretation."

HMSA, which said it was surprised by the ruling, immediately appealed the case.

The health insurer paid a portion of the $3,400 claim. But it pressed on with a court battle because it believes that the state statute has not been properly interpreted. Moreover, the insurer is concerned that the ruling could lead to a flood of claims for even the most dubious of treatments.

"It leaves the health plan wide open," said HMSA spokesman Cliff Cisco. "This would add to the rising cost of healthcare."

The case revolved around the plight of Gordon Chapman, an environmental planner from Waikoloa. A smoker, he was diagnosed with lung cancer three years ago. But his tests also discovered severe osteoporosis, which later led to excruciating pain from spinal fractures.

Morphine and other painkillers only briefly blunted the pain, which he described in a videotaped deposition as being like "somebody poking me with a bat or a night stick just constantly ... On a pain scale (of 1 to 10), it was a nine or 10 — sometimes really rise above that to 12 or 13."

Chapman's first three kyphoplasty surgeries — which fill the vertebrae with bone cement — were denied coverage by HMSA, so he and his wife paid for them from their savings. It wasn't until the fourth surgery that his surgeon mentioned that he could appeal HMSA's decision through a review board.

Though dying and incapacitated, he was determined to fight to change existing policy about new treatments.

"If I can do something to help future patients," said Chapman, his voice breaking in this part of the deposition, "then I will do it."

In January 2003, he filed an appeal to a three-member external review board led by Commissioner Schmidt with a doctor and a health-plan representative. The panel convened to hear the case in September 2003, two months after Chapman died.

Chapman's attorneys told the panel that the surgery was recommended by his surgeon, it was commonly practiced and medically necessary for his condition. Moreover, they argued that Medicare already pays for the procedure for its patients.

"It's a fairly new procedure, but proven effective," said Richard S. Miller, one of Chapman's attorneys who had helped draft the language that became Hawai'i's Patients' Bill of Rights in 1998. He and two other lawyers from the nonprofit Hawaii Coalition for Health litigated the case.

Medicare covers seniors who are 65 and older; Chapman was 64 when he died. His wife's employer provided his insurance — HMSA's Health Plan Hawaii Plus HMO.

HMSA's lawyers argued that kyphoplasty is an experimental procedure. According to documents from the review board, the treatment typically uses bone cement of polymethylmethacrylate or PMMA, which at the time had not been approved for kyphoplasty by the U.S. Food and Drug Administration. The inflatable bone tamp used in the surgery also hadn't been approved.

PMMA itself can have adverse side effects, including death. In addition, there have been no controlled clinical trials of kyphoplasty.

Last October, the review board ruled that HMSA "acted reasonably" when it concluded that kyphoplasty is still being studied for its safety and efficacy. As such, HMSA's health plan does not have to cover kyphoplasty as an investigational procedure.

However, the board ordered HMSA to pay the Chapmans. It said the patient did not know that the health plan did not pay for kyphoplasty because it did not specifically say that the treatment was excluded.

Under the "medical necessity" provision of the Patients' Bill of Rights, a treatment must be covered by the insurer "if it is an otherwise covered category of service, not specifically excluded," and recommended by the treating physician as well as being medically necessary to the patient.

HMSA went to state Circuit Court to overturn the board's decision.

•

To appeal a rejected medical claim: • Go through your health insurance company's internal appeals process. • If payment is still denied, you have 60 days to appeal to the Insurance Division's external review board. Write a letter explaining your case. If possible, attach your insurer's final ruling. Mail letter to the Hawaii Department of Commerce and Consumer Affairs, Insurance Division, Health Insurance Branch, External Appeals, 335 Merchant St., Room 213, Honolulu, HI 96813; or fax to 587-5379. You don't need an attorney to appear before the board, but the insurer will have legal representation. • For more information, call 586-2804. • To reach the nonprofit Hawaii Coalition for Health, call 622-2655.

Moreover, the lawsuit said that it is "completely unworkable and unrealistic" to identify every possible treatment to be excluded and "medical science is in a state of constant — and rapid — change. Any list of excluded procedures would have to change at the same pace."

The board's interpretation of the provision "would make it impossible to price health coverage, as plan premiums must of course be based on the scope of benefits payable under them," the lawsuit said.

Also, federal law as outlined in the Employee Retirement Income Security Act applies in this case because Chapman's insurance came through a business, HMSA's spokesman Cisco said. ERISA governs worker benefits for private sector employers, applying a uniform national standard.

If ERISA applies, then the question of medical necessity as part of a Patients' Bill of Rights is moot because there are no federal patients' rights, HMSA argued. To the insurer's surprise, Cisco said, the state court upheld the board's decision.

He said that's why the insurer is taking the fight to a higher court.

Chapman's widow, Renne, will continue to defend the ruling to honor her husband's deathbed wish for medical fairness.

"If you were under a certain plan with HMSA or any HMO, this procedure would not be approved. If you were under Medicare with HMSA, it would be approved," she said. "Gordon was really passionate about doing this because ... if he can help the next guy, he would give it his all as long as we could. Before he died, I promised him that — carry on as much as I could to see it through, as long as it took us."

Even though it's been nearly a year since her husband died, her life is still infused with his memory. His voice is still on the answering machine, greeting callers with a cheery "Aloha." She still sleeps on her side of the bed — the left — and leaves his side vacant. His pillow is still there.

"I'm coping with it," the widow said. "I talk to him always."