Parsons v. Sisters of Charity of Leavenworth Health Systems Inc.

MEMORANDUM

Plaintiffs-Appellants appeal from an order granting summary judgment in favor of Sisters of Charity of Leavenworth Health Systems, Inc., BlueCross BlueSh-ield of Kansas City, and BlueCross BlueShield of South Carolina. We have jurisdiction under 28 U.S.C. § 1291 . We review the grant of summary judgment de novo. Johnson v. Buckley, 356 F.3d 1067, 1071 (9th Cir.2004).

The benefit plan declined to cover Ran-dee Parsons for participating in a clinical trial for autologous bone marrow transplant (ABMT) with Dr. Richard Burt because the trial was “experimental and in-vestigational,” and therefore not covered by the plan. We need not decide whether the district court should have reviewed the denial of coverage de novo or for abuse of discretion, or what law applies, because regardless, there is no genuine issue of fact as to whether this ABMT procedure was “experimental and investigational” under the plan.

A procedure is experimental and investi-gational under the plan if it: (1) has not received required final approval to market from appropriate government bodies; (2) is one about which the peer-reviewed medical literature does not permit conclusions concerning its effect…