                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 16 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LOGAN BARROWES,                                  No. 10-55795

              Plaintiff - Appellant,             D.C. No. 2:08-cv-08659-R-PJW

    v.
                                                 MEMORANDUM*
AETNA HEALTH OF CALIFORNIA,
INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                       Argued and Submitted March 8, 2012
                              Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

      Logan Barrowes appeals the district court’s order affirming Aetna’s denial

of coverage for surgery to remove a brain tumor. Because Aetna abused its

discretion in concluding that the surgery was not an “emergency service” covered




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
by the plan, Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir. 1999) (en

banc), we reverse.

      The plan provides that out-of-network emergency services are covered if

“the Member’s symptoms were such that a prudent layperson, possessing average

knowledge of health and medicine could reasonably expect the absence of

immediate medical attention to result in serious jeopardy to the Member’s health.”

Barrowes was told by doctors who examined him in a hospital in Irvine, California,

that he had a tumor in his brain that could rupture and blind or kill him if he did not

have it removed immediately. A prudent layperson, given this information, would

certainly think that he needed to arrange for surgery as quickly as possible.

      Aetna argues that Dr. Duma, an in-network neurosurgeon, could have

provided immediate medical attention. That is clearly not so. Dr. Duma was

definitely not available to consult over the Labor Day weekend. Given Barrowes’s

hemophilia, surgery would have to be further delayed while blood treatment

occurred. A reasonable layperson would therefore seek to begin the treatment if at

all possible over the holiday weekend, so as to have the operation as soon

thereafter as possible.

      Aetna maintains that it was nonetheless entitled to deny coverage for the

operation because the record does not establish that Dr. Duma would not have


                                          2
agreed to consult with Barrowes on the doctor’s first day in the office and to

schedule surgery as soon as the medical circumstances allowed thereafter. Aetna’s

reliance on this record gap to support denial of benefits is arbitrary and capricious.

The relevant consideration is whether, given the emergent situation, Barrowes had

any means of assuring himself in advance that Dr. Duma would be able to make

him a priority on his return on Tuesday. Absolutely nothing in the record indicates

that Barrowes had that assurance at the time he decided to go to Utah, where he

was able to obtain immediate medical care due to his relation to a physician. Even

now, nothing in the record confirms that Dr. Duma would have actually seen

Barrowes on September 4, 2007, or operated as soon thereafter as medically

appropriate. Furthermore, Barrowes was referred to Dr. Reichman in Utah by his

primary care physician, Dr. Tsai. Setting aside the argument that this referral was

operative under the plan, Barrowes at least acted as a reasonable layperson in

relying on his primary care physician’s advice that he travel to Utah for surgery.

      Moreover, even assuming that Barrowes could have known that Dr. Duma

was available to treat him on September 4th, that is still a full day after Barrowes

saw Dr. Reichman in Utah and began preparing for surgery. Thus, however one

looks at the matter, Barrowes obtained the essential operation at least a day sooner

than he would have had he stayed in California. A reasonable lay person told that


                                          3
his sight, or his life, could be lost in that day would not have waited for Dr. Duma

if he had any alternative.

      Barrowes therefore acted reasonably in determining that seeing a doctor in

Utah arranged by his relative was the only way to ensure “immediate medical

attention” for his life-threatening tumor, thereby avoiding “serious jeopardy” to his

health. Aetna mistakenly regarded the record vacuum as to Dr. Duma’s actual

availability as somehow a basis for denying coverage for the services performed in

Utah, rather than as establishing that Barrowes met the contract’s standard for

coverage for emergency services by seeking an assured alternative, and ignored the

critical consideration that medical care sooner—including one day sooner—is

better than later when one’s very life is at stake. Because it ignored the relevant

considerations that a prudent layperson would take into account in deciding

whether to seek out-of-network emergency care, Aetna abused its discretion in

concluding that Barrowes was not entitled to coverage under the policy’s

emergency services provision.

      REVERSED.




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