Frasca – Cases in Law and Economics, Torts
Dardinger, Exr., v. Anthem Blue Cross &
Blue Shield et al., Appellees.
Supreme Court Of Ohio
2002 Ohio 7113 (2002)
[Ester Dardinger had a malignant brain cancer that was rapidly growing. Her doctor
recommended that she receive a novel chemotherapy that was initially approved by her
insurance carrier. The procedure seemed to work. Some tumors stopped growing, while
others apparently declined in size. Accordingly, her doctor scheduled additional
treatments. Payments for these future procedures were, however, denied because the
insurer belatedly determined that they were experimental. Ester, and her husband Robert,
appealed the decision. Based upon testimony in the court case it appeared that the insurer
negligently, and perhaps even purposely, extended the appeals process. Given the
uncertainty as to whether this expensive specialized treatment would be paid for by her
insurer, Ester opted for a covered treatment while her appeal was pending. This delay in
receiving the appropriate treatment proved fatal for Ester. She died a particularly painful
and early death. The court awards punitive damages. Are the damages excessive? How
should they be distributed?]
JUDGES: DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs separately. MOYER, C.J., and LUNDBERG STRATTON, J.,
concur in part and dissent in part. COOK, J., concurs in part and dissents in part.
There are two factual portions of this case relevant to our determination. The first set of
facts is that which gives rise to the claims of the plaintiffs for breach of contract, bad
faith, and punitive damages. The second set of facts is relevant in determining whether
defendant Anthem Insurance Companies, Inc., waived a possible defense.
The plaintiff-appellant in this case is Robert Dardinger, executor of the estate of his
wife, Esther Dardinger. There are two defendants-appellees. The first is Community