Dexter v. Kirschner

SCHROEDER, Circuit Judge,

dissenting:

I respectfully dissent. The controlling statutory language requires that once a state decides to pay for any organ transplant, it must do so for all persons “similarly situated.” 42 U.S.C. § 1396b(i)(l)(A). The district court in this case found that the plaintiff, Sheri Dexter, who required a bone marrow transplant using the alloge-neic procedure, was similarly situated to a patient who could receive a bone marrow transplant by means of the autologous procedure. The finding is supported by the testimony of the expert witness who said that the operations are functionally the same. The district court’s finding is independently and amply supported by the undisputed facts that the organ being replaced in both procedures is the same, and that the costs and availability of both procedures are similar. As the parties have recognized, forty-six states and the District of Columbia provide Medicaid coverage for bone marrow transplants, and all cover the allogeneic procedure.

The majority’s opinion gives controlling weight to one paragraph of the parties’ stipulation which states that the allogeneic and autologous surgical procedures are “different.” The majority concludes that “similarly situated” means all patients who can be treated equally effectively by the same organ transplant procedure. This is a very narrow reading of the term “similarly situated.” It interprets the statute to mean that the state need only provide organ transplants to persons who have identical physical conditions caused by identical diseases. This is not what Congress intended. Rather, the statute requires a practical look at the totality of the situation.

The only justification for the Arizona Legislature’s decision to provide only for autologous transplants was that, at the time the Arizona statute was enacted, it was the only procedure available in Arizona. Since that situation no longer exists, and both procedures are available on a comparable basis, there is no longer any justification for making this distinction. The irrationality of providing for autolo-*988gous but not allogeneic transplants is further illustrated by the parties’ stipulation that allogeneic transplants are far superior to autologous bone marrow transplants in providing curative treatment. Indeed federal law expressly regards the allogeneic procedure as the preferable procedure. Under Medicaid regulations, when a matched donor is available to a person who could also receive an autologous transplant, the allogeneic transplant, not the au-tologous is to be performed. Bone Marrow Transplantation, 54 Fed.Reg. 34555, 34566-67 (1989).

The majority’s result does not appear to be supported by any authority. Much of the organ transplant litigation involves whether particular transplant procedures are “nonexperimental” and thus covered by state Medicaid plans. See Meusberger v. Palmer, 900 F.2d 1280 (8th Cir.1990); Montoya v. Johnston, 654 F.Supp. 511 (W.D.Tex.1987). As the parties have stipulated, the procedures at issue in this case are not experimental. The proposed majority result would appear to be in tension with the Fourth Circuit’s decision in Todd by Todd v. Sorrell, 841 F.2d 87, 89 (4th Cir.1988), which effectively rejected a legislative decision to fund liver transplants caused by one disease and not another. See also Simpson v. Wilson, 480 F.Supp. 97, 100 (D.Vt.1979) (denial of service solely because of the diagnosis, type of illness, or condition held contrary to the federal regulation).

In my view the district court reached a sensible, compassionate, and legally correct result. I would affirm.