*1 Henry Syms, Craig, Attorney, Jr., Madonna Daniel J. District W. appellee. Attorneys, Little, Assistant District M. AUTHORITY OF HOUSTON COUNTY HOSPITAL

A04A2004. et al. v. BOHANNON.

(611 SE2d

Ellington, Judge. seeking determination that Bohannon filed an action a William plan provided for a stem cell his health benefits kidney requested permanent a as treatment for his cancer. Bohannon immediately approve injunction ordering the defendants1 to expedited hearing, the trial court authorize the treatment. After an compelling favor, ruled in Bohannon’s HHC to cover treatment. appeals, contending trial court erred that HHC denying coverage treatment. was Bohannon’s (a), findings nonjury §

“Under OCGA 9-11-52 a trial court’s clearly regard erroneous, trials shall not be set aside unless and due opportunity judge shall be credibility to the of the trial court to (Citation punctuation omitted.)

ofthe witnesses.” Ins. App. (1) Investments, Indus. Consultants v. Essex reviewing nonjury trial, In in a decision appellate judgment court construes the evidence in favor of the findings and will not disturb the trial court’s factual if there is County, evidence to Enviro sustain them. Pro Emanuel 673) (2004); 309, 311 Ins. Indus. Consultants v.Essex interpre- Investments, 249 Ga. at 839-840 The trial court’s application findings, tation and however, law to those are subject to de novo Id. review. ruling,

Construed in favor ofthe trial court’s the record shows following hospital authority operates HHC, law,2 facts. created employees. pro- several healthcare facilities and has It hundreds employees its vides a health benefits which is self-funded for the $100,000 of each claim. HHC contracts with a (“TPA”) “preferred providers” administrator to select a network of process and to TPA evaluate claims. HHC’s also drafts the health listing document, services, exclusions, a booklet prints terms, and other material booklets for distribution to Authority Hospital County (“HHC”), named Bohannon as defendants Houston MSO, Inc., Healthcare, Inc., Complex Houston Healthcare Group Houston and “Houston Healthcare Employees Protection for of Houston Healthcare.” seq. Hospital Law). (Georgia See 31-7-70 et Authorities OCGA § year, 2003, enrollees. For the relevant calendar Blue Cross served plan’s TPA.3 long-time employee family Bohannon’s wife is a HHC and has July 2003, under its health benefits diagnosis of recurrent metastatic renal cell carcinoma. received chemotherapy unsuccessful, Bo- After standard course of prognosis “grim,” less hannon’s and doctors estimated he had *2 than months to His him to Duke six live. doctors referred Medical transplant program. November, Center’s bone marrow In Blue Cross “precertified” in-patient transplant The Bohannon for an evaluation. team Duke recommended that Bohannon receive a “mixedchimerism allogenic transplant” stem cell and found that his son be a would process, donor. suitable The six-month which could cost as much as begin $250,000, was scheduled to the before week Christmas. requested “preau- On December Bohannon’s Duke doctor at predetermination transplant thorization,” a of for a stem benefits cell maker, for Bohannon’s renal cell carcinoma. The decision Blue Cross’s request director, medical instructed his staff to send Bohannon’s out peer keeping submitting practice review, in for transplant preauthorization requests with Blue Cross’s of all peer review. Blue Cross “representjed] the if asked reviewer to determine the treatment the of care” standard for Bohannon’s “clinical situation” or if it was “investigational/experimental.” The concluded treat- reviewer that the experimental ment renal cell carcinoma. Blue and, medical Cross’s accepted analysis director letter dated December 2003, notified Bohannon’s doctor at Duke that for the this reason procedure was not under covered HHC’s health benefits manager

A Blue Cross case advised Bohannon’s wife how appeal representatives January decision. At the end of of they presented HHC met with wife, Bohannon his evidence supporting position procedure experimental. their that the was not In February, organizations performed independent two reviews procedure denial of benefits. Both concluded the did Blue not meet experimental investigational;4 Cross’s definition of one reviewer specifically opined likely that a better plan’s third-party only year. served as the administrator for one Southern plan’s third-party preceding year, Administrative Services served administrator for the Georgia plan’s 1, 2004. and Secure Health Plans of became the administrator effective 4 According definition, to Blue Cross’s Experimental Investigational Services which are considered include services (1) approved by Drug have which not been the Federal Food and Administration or (2) for which medical and scientific not evidence does demonstrate that expected proposed greater benefits of the treatment would be than the of any proposed available standard and that treatment adverse risks of the treat- substantially will not be ments increased over those standard treatments. Both fewer risks. review- treatment with than standard outcome document noted, however, under HHC’s 2003 ers procedure medical condi- for certain among kidney for which such cancer was not those Bohannon’s tions. transplants February HHC denied cov- On were covered. coverage.5 erage This was on the basis of the limitation denial of Thereaf- reason for the HHC had time ter, compel seeking brought to cover this action Bohannon treatment.6 ruling Bohannon, trial court found that HHC

In favor coverages available made the never therefore, from and, that HHC was to its enrollees specifi- transplant. court the stem cell The Bohannon declaring cally refrained, however, from the treatment was The also refrained other enrollee. court covered on whether HHC’s benefit was covered Right Independent Act, Bohannon Patient’s Review which petition. his filed sought for which

1. HHC contends that treatment plan, and, there- HHC’s health benefits benefits was pay compelling fore, it to for Bohannon’s stem the trial court erred position, argues transplant. support its that Bohannon cell *3 of limitation least constructive notice of had at duty has a to determine the extent of his healthcare an insured possession plan coverage, regardless whether he is in argues addition, HHC that the doctrines of waiver and expand policy’scoverage estoppel cannot to an insurance to be used any expressly that, risks have excluded and include which been accordingly, erred in that HHC was trial court from Bohannon plan initially offers note that the health benefits HHC its

We employees adhesion, a has defined “a is contract which been offered on a ‘take it or leave it’basis standardized contract product conditions that a consumer cannot obtain desired such transplant was deemed booklet, contained necessity with a claimant Right condemn Blue Cross’s slavishly adhering Though it for a Independent Blue Cross’s own creation which without a limitation of patient is HHC’s conduct which material facing titled to its with the handling Review Act.” his determining death within “medically policy complaint, necessary” See whether which would diagnosis. a matter of preauthorization “Petition to Enforce OCGA 33-20A-30 even rather than applied § months, were “100 a apply regardless “medically necessary’ to our request. when Blue Cross caused needless Rights decision, “experimental/investigational.” et physician it seq. received Guaranteed we summary plan description of whether take review[ed]” request, opportunity the stem The Patient’s would be delay medical plainly Yet, cell to except by acquiescing contracts, service the form contract. Such permissible, strictly against (Cita- while are construed the drafter.” omitted.) Membership Corp. Snyder, tions Walton Elec. 613) (1997). policy, 673, 678, n. 6 Like an insurance plan reasonably health benefits should be construed as understood an enrollee. First Financial Ins. Co. v. American Sandblasting (1) (477 390) (1996). Co., 223 Ga. “Exceptions, insuring agreements limitations and exclusions re- quire theory having a insurer, narrow construction on the that the affirmatively expressed coverage through promises, broad assumes a duty any explicit to define limitations on that in clear and (Citation punctuation omitted.) terms.” Id. at 232-233 above, As discussed Cross, HHC contracted with Blue as its print plan description administrator, to draft and booklet for distribution to enrollees. While Blue Cross had the responsibility produce booklets, however, it did not have the authority party offering to set the HHC, terms of the as a responsibility ensuring adhesion, contract of had the hired, i.e., scrivener it Cross, wrote the document as instructed and did not insert limitations of approved. or exclusions requested that HHC had not See Yablon v. Metro. Life (2) (38 Co., Ins.

HHC’s resources, director of human who serves as the in-house health benefits administrator, testified that did not intend change changed the services covered when it TPAs.7 emphasized plan, The witness that the benefits was HHC’s not plan.8 language the TPA’s It is axiomatic that when contract substantially changes parties’ respective rights rewritten, in the inevitably despite providing duties Yet, result. its intention of year year, same benefits the record does not show that adequate steps language took to ensure that the used to describe change. those benefits to enrollees did

*4 When HHC hired Blue Cross to be its TPA for it relied on supply language Blue Cross to used in the booklets. The percentage Bohannon’s treatment when coverage (Emphasis 8 Yet, ^[7] The witness transplants. vidual something we are not able to do in this situation. Houston for the bone portion when supplied.) it disease paid explaining specifically for covered section This Healthcare. processes. marrow plan to document transplants noted transplants Bohannon and This is determined specifically Therefore, your request plan document did not that restricted to the same in 2003 and in 2004 the health benefits increased. lists what his wife by specified conditions, transplants that HHC could not our re-insurance to amend our was under the section of coverage, are covered for indi- plan although this witness carrier, document voluntarily plan in 2004 the limited said, cover 100 regarding gave benefits to be included in Blue Cross

direction HHC summary two-page plan in a benefits document was contained (emer- portion specified by category the covered services which etc.) gency a few services, and listed visits, visits, wellness room office keratotomy, drugs, prescription (impacted teeth, radial exclusions etc.). preparing began booklet, Blue Cross with its own HHC’s 2003 plans plan for and then document self-funded benefit standard modified two-page summary. according There is to benefits HHC’s in all Blue standard booklet was identical no evidence that Cross’s respects plan Further, the evi- to 2002 material dence showed that HHC’s to the 2003

HHC did not instruct Blue Cross base entity plan (when plan for a different document 2002 document on booklet). TPA drafted regard ulti- on which HHC to limitation With pro- mately deny coverage, relied Blue Cross’s standard booklet only for listed were covered certain vided that stem cell (not including carcinoma). Blue retained renal cell Cross conditions prepared provision after it made HHC’s in the booklet it for HHC this requested no evidence HHC directed Blue modifications. There is specific 2003 limitation of in the to include Cross suggests that, the two The record even until received booklet. independent reports, responsible personnel were for its who plan administering the did not realize the stem cell whole, limitation in the 2003 document.9 Taken as a unwisely assigned supports that, inference after HHC record an drafting (as opposed merely physically Blue Cross the task of assembling printing) document, Blue Cross inserted request did not or autho- into the rize.10 document modifications HHC consult resources the more than period modified one created By comparing the enrollees did not consult Cross to its successor through that] owners not Based on the [c]are The record while Blue Cross could not obtain a group personnel previous entirely decisions on its standard document the 2002 booklet when Secure Health any and additional months before is clear exclusions contained in Workers’ assumption year’s at HHC directed enrollees with health benefit are condition TPA, new exclusions were added. For applied that when under a Workers’ booklet until the current copy Compensation, occupational premium paid. its Blue about the of Blue Cross’s standard document. injury standard document actively employed making coverage followed the same recognized one the booklet Compensation continuity finished sees included year’s that some preparing or allowed as a self-funded created example, significant Act or similar decisions. disease document was available. But partners practice in the for 2003 the 2003 exclusions HHC’s PPO or similar modifications in Rather, Blue Cross based compensable plans. During enrollees’ law, booklet, coverage questions small transition from Blue document excluded were law, if elected plan, business Cross and the substantially [except its claims, the human personnel loss the same during those

101 Further, even if HHC directed Blue subject Cross to include the limitation on transplants, there is no evidence HHC notified its premiums-paying enrollees limitation on covera 1 ge.1 party As a a offering adhesion, contract of it was incumbent on HHC to plan enrollees notice of specific benefits under the contract and to “define limitations on that clear and terms.” First Financial Ins. Co. v. American Sandblasting explicit Co., 223 App. Ga. at Beynon v. Garden Grove 232-233 See also Med. Group, 100 Cal. App.3d (1980).12 Cf. McNair v.Monsanto (I) 698 Co., 279 FSupp.2d 1290, 1300-1302 (1) (M.D. 2003) (forum Ga. selection clause ruled against enforceable litigants who had notice of clause, as evidenced by signatures their beneath a statement “I acknowledge that I have read and understand the terms and condi tions of this Agreement and that I agree to them” when the forum selection clause appeared on the back of one-page form agreement and only provision was the in all capital letters). Based on the foregoing, we find the trial court correctly prevented HHC from denying coverage on the basis of the provision contained in 2003

We have reviewed the cases HHC in support cited of its argument that regardless of whether Bohannon in possession of the plan document, hand, broadly The 2004 on the other injury more excluded “care and treatment of an - occupational is, or sickness that self-employment.” wage profit is including arises from work for or addition, In the 2004 document included several exclusions which had no counterpart document, including in the 2003 hospital “care and treatment billed emergency Friday “care, non-medical Saturday,” treatment, admissions on a or a services or supplies approved by physician; treatment, not recommended and supplies services or person when regular physician,” the covered programs not under the care of a “exercise any condition,” “replacement arm, back, treatment of leg, neck, ofbraces ofthe or artificial arms legs,” “any intentionally injury.” loss due to an self-inflicted There is no evidence HHC changes. notified enrollees of those 11 approve 23, HHC did not the booklet Blue Cross drafted until December 2003. Because beginning later, a new TPA’s term was a week HHC never distributed the customized Blue finally provided Cross booklets to enrollees. copy Bohannon and his wife a ofthe Blue they Cross booklet in appealing 2004 because coverage. were the initial denial of 12 Beynon, plan (a adhesion) a health care service contract of contained an arbitration provision granted provider which right reject of services the unilateral an require arbitration award without cause and to rearbitration. Id. at 705-706. The enrollee pamphlet describing received a copy policy. but never received a of the master appellate court concluded that subject provision, the enrollee was never notice of the even “ though pamphlet disputes she received stated ‘must be submitted to arbitration in 705, policy].’” (I). public accordance with the policy Id. at 709 [master The court discussed recognizing important plans give timely for health care service enrollees meaningful provisions notice of (I). arbitration in their contracts. Id. at 708-709 The court observed, adhesive, provision a contract is courts will “[w]here not enforce a which limits the stronger party liabilities and conspicuous duties ofthe unless such are clear and operate expectations will party.” to defeat (Citations omitted.) the reasonable ofthe weaker (I). provision Id. at 705 enrollee, heavily weighted against Because the contested arbitration was so provision, and because the enrollee had no notice of the the trial court ruled that the provision against (I). was not enforceable the enrollee. Id. at 709 102 knowledge charged of the details an insured with he is

document presume final, that a written of these cases Each of his policy period the commencement existed before opportunity docu that the insured had such Hercules, Inc., 245 Ga. Adams v. if he chose to do so. ment (43 781) (1980); (265 Waldo, SE v. Hart SE2d concurring); Virginia Price, (1903) (Candler, Mut. Ins. Co. v. J., 314) (1974); App. (208 Ins. Co. 445, 448 Cherokee Credit Ga. Life 171) (1969); v.Mack Baker, Brown 119Ga. case, In this Trucks, *6 approve until Blue Cross drafted however, HHC the booklet did not request Bohannon’s 23, 2003, after it had denied December preauthorization experimental treatment the basis that the on apply Accordingly, the cited cases do for Bohannon’s condition. presented here. the circumstances reject argument addition, that this amounts HHC’s outcome we estop- impermissible application of of doctrines waiver

to an pel.13 finding HHC waived an do not our decision on a that We base denying coverage by applicable the claim on the limitation of inapplicable Rather, different, exclusion. we conclude that basis of a it cannot a limitation of absent evidence enforce provided this notice of limitation. enrollee judgment of the trial court is affirmed. judgment uphold

2. Because the trial court’s on basis we supra, unnecessary in it to resolve the discussed Division arguments upholding advanced Bohannon bases for alternative judgment. (a) First, we not resolve issue ofwhether Bohannon was need Indepen Right entitled to relief awarded under the Patient’s seq.14 troubled, Act, et are § dent Review OCGA 33-20A-30 We position however, on issue. HHC claims that Act HHC’s political apply HHC, because as a does not to its subject state, of of cannot to the statutes subdivision be including argument supported by Code, the Act.15HHC’s Insurance 13 Tucker, Ballinger SE2d 498) (1976); 689 Bank 139 Ga. St. See C & S Purdy, (4) (199 567) (1973); & Marine 357 (131 Lovett Paul Fire Ins. Co. v. Co., Family App. 603, 607 v. American Ins. Ga. Life (“A independent organization (a) in decision favor See OCGA 33-20A-37 § managed entity appropriate eligible binding final and care and the ofthe enrollee shall be on delay!’) (emphasis supplied). provided shall be without relief public corporate politic”); (a) (hospital body are “a See 31-7-72 authorities OCGA §§ “transact,” respect insurance); (excluding political (6) (defining (a) with 33-1-14 33-1-2 (b) (insurance jurisdiction commissioner); of the state from insurance 33-3-3 subdivisions insurance); political the state to Cox cannot authorize subdivisions of transact commissioner (hospital /County Hosp. Auth., 841) (1981) Enterprises City v. Carroll position by Georgia’s pub Commissioner, taken Insurance who licly many Georgians pay “premiums” advises the thousands of who plans payments to self-funded health benefit that “benefit directly by employer are funded rather than an insurance car policy your [,] rier ... no insurance contract exists.... This means that is not to the insurance laws of the state of Georgia.” Georgia Assembly When the General enacted the Patient seq., findings: Act, Protection § OCGA 33-20A-1 et it made these Assembly The General finds and declares that it is a vital government Georgia concern that the citizens of the State of quality have access to health care services and that informed identify plans consumers will be better able to and select quality they that offer health care services if are specific they plans. information before enroll health care increasingly As the health care market becomes dominated plans managed techniques health care that use care appropriateness include decisions as to the care, Assembly gov- General finds and declares that it is a vital protect patients managed ernment function to care practices priate limiting appro- which have the effect of Assembly care. The General further finds is the public policy Georgia physicians of the State of providers encouraged health care be to advocate for medi- cally appropriate patients. health care for their *7 (a). Assembly OCGA § 33-20A-2 act, In the same the General defined “managed entity” company, hospital care to include “an insurance or plan, hospital, provider medical physi service health network, care hospital organization, provider, cian health care health maintenance organization, corporation, employer employee organi health care or managed zation, managed plan.” care contractor that offers a care (10). § OCGA 33-20A-3 Assembly’s Given the breadth of the General findings “managed entity,” and the expect definition of care one would the Right Patient Independent Protection Act and the Patient’s to apply managed care-type plans Review Act would to offered employers. Assembly self-insured specifically Yet, the General des ignated the acts to apparently be codified within the Code, Insurance jurisdiction, to the limits on the Insurance Commissioner’s excluding many Georgians protection. with the effect of from their p. pp. Ga. L. 485, 1; adopting § Ga. L. 350, 352, § 3. In regulations implement Act, the Patient Protection the Insurance governmental entities); Op. Atty. authorities are (accord). Ga. Gen. No. 2002-8 managed implied offer insurers can licensed Commissioner Comp. Regs. plans R. & r. 120-2-80-.01 the Act. Ga. as defined care uphold necessary Although this issue in order it is not resolve supra, judgment, are concerned court’s see Division we the trial Assembly’s apparent disparity stated between General about practices managed protect patients which have from care intention the limiting appropriate care its failure to and effect of by political protect plans subdivisions of enrollees in benefit offered the state. Finally,

(b) in Division the reasons we conclude for because provision against supra, enforce HHC cannot diagnoses, limiting we to certain do stem cell ambiguous limitation not reach issue ofwhether appears of where how it Judgment J., Smith, J., Johnson, Miller P. P. affirmed. Phipps, JJ., Andrews, J., Blackburn, J.,P. dissent. concur. P. dissenting. Presiding Judge,

Andrews, respectfully I dissent. by Hospital Authority provided care Because health County (HHC) unambiguously for the of Houston excludes procedure issue, the erred medical at trial court HHC denying coverage. rediagnosed July 2003, with recurrent In William Bohannon was undisputed renal It that Mr. Bohan- metastatic cell carcinoma.16 is plan (the managed HHC’s health care non is covered under plan) provided employee. family coverage wife, to his an HHC plan paid rediagnosis, After the 2003 for extensive treatment Mr. his illness treatment centers at M. D. Bohannon received for at cancer Hospital University in Houston Duke Medical Anderson and at Unfortunately, control or these treatments were able to Center. the cancer. cure sought approval

In December Mr. Bohannon from HHC promising procedure as a mixed of a medical known allogeneic performed be stem cell chimerism Duke 2003, University transplant program. cell bone marrow/stem Blue administrator for the Cross Georgia. agreement HHC, Under its with Blue Blue Shield Cross showing limits for drafted documents by the HHC made determinations as to or not the whether Although claims for benefits. HHC “pre-certified” various University testing at Duke related Mr. Bohannon *8 diagnosed Mr. Bohannon and treated for renal cell carcinoma in 2001 and thereafter was periodic followed with CT scans. possible gave “pre- treatment, Blue Cross never Mr. Bohannon plan indicating authorization” age the HHC that there was cover- transplant. stem cell After Blue Cross reviewed the claim peer process completed, and a Blue Cross determined on transplant sought by December 2003 that the stem cell Mr. by plan Bohannon was not covered experimental the HHC because was an investigational treatment, which was excluded from coverage by plan.

Shortly after determination, Blue Cross made that HHC termi- third-party plan nated Blue Cross administrator of its hired Secure Health as the new administrator ofthe HHC plan January point, 1,2004. effective At that HHC and Secure Health yet signed plan had not off on a new health care document for existing plan so the 2003 Blue Cross drafted document remained as plan the HHC by for the first two months of 2004 and was administered Secure Health.17 In HHC asked Secure Health to fully request review Mr. Bohannon’s of the stem cell transplant giving no deference to Blue Cross’s earlier denial of coverage. Upon including Health, review Secure inde- additional pendent peer review, Secure Health determined that the stem cell transplant experimental investigational was not as defined plan, procedure and therefore the was not excluded from plan under the on However, that basis. Secure Health transplant further determined that the stem cell at issue was other- express wise excluded from plan. under the terms of the HHC As the plan Secure Health determined, claim review the HHC provides coverage medically appropriate type sought by transplant Bohannon, Mr. but if the is for the treat- specifically ment of a condition listed in the HHC Because renal cell carcinoma is not one of the listed conditions, the HHC expressly transplant sought by excludes the Mr. Bohannon for that condition. Furthermore, the HHC states that no “[a]ny transplant specifically listed as covered.” Pursuant to the Secure review, Health claim Mr. Bohannon was finally February informed 17,2004 HHC on that the did transplant. not cover the stem cell March Mr. Bohannon filed petition Superior County seeking Court of Houston required that, circumstances, under the the HHC The new agreed 2004 Secure Health drafted document was to HHC and Secure changes Health on March 2004 with no relevant to the stem cell at issue from the *9 process hearing testimony the claim and the about

After coverage, ruled as the court follows: denial trial “experi- coverage on denial the basis When the mental/investigational” [Mr. made to . . . Bo- known possible pursuing some other avenue rather than hannon], of treatment or sought appeal finding financing, to [he] doing experimental so, and treatment, now is succeeded simply coverage pro- procedure not in the that the told vided plan plan. will not now allow This Court position this late date when the on such a at stand and coverages plan never made available and were patient hangs [HHC] life ofthe now in the balance. when the estopped denying coverage hereby must imme- from diately treatment at Duke for the recommended Medical Center. ruling. Although appealed evidence Blue

HHC from there is that process delayed the denial of Cross mishandled initial review timely coverage Mr. deserved a and accurate deter- when clearly coverage there mination, the record shows was no transplant plan cell carcinoma. HHC Nothing for a stem cell treat renal supports the reached trial in the record conclusions was deny majority coverage court and the that HHC the claim Mr. because of the manner in which was denied coverage plan. notice under the Bohannon had no limitations HHC third-party Blue Cross administrator When became plan January plan HHC a effective health care went into provided effect that date which benefits and exclu- on providers sions network of health care as- under a plan paid by Blue Cross. This was the same for Mr. sembled Duke treatment in 2003 at M. D. Anderson and Univer- Bohannon’s sity representatives Medical Center. Both HHC Blue Cross they signed Group Application Master document in testified that a plan Blue Cross health care October 2002 which the basic PPO adopted January except 1, 2003, the HHC effective changes the basic made HHC and attached to the PPO application. Accordingly, application changes the plan with attached coverages in the and exclusions set forth basic Blue Cross PPO comprised were the documents which Over plan, the HHC none course of of three modifications were made to anything transplants. for stem cell which had to do with Although Blue duties as the administrator one of Cross’s employees summarizing prepare was to plan, a booklet until 2003 and was booklet was not finalized late December employees change not sent to party at that time because of the in third- However, administrators. before the HHC went into effect employees, 1, 2003, on HHC sent letter a to all its covered including informing change Bohannon, Ms. them of the to the Blue plan changes, directing Cross PPO network and various health employees questions with about the to call the HHC human requested resources office. Ms. Bohannon testified that she first copy of the written HHC after she and her husband received denial of letter from Blue on December 2003. request, copy Pursuant prepared to that she received a of the Blue Cross booklet, which showed the HHC excluded cover- age for stem cell for the treatment ofrenal cell carcinoma. plan, (under

The record shows the HHC whether for 2003 Cross) (under Health), unambiguously or for 2004 Secure ex cluded for a stem cell for the treatment of renal *10 though cell carcinoma. Even the HHC was a contract ofadhesion wholly by third-party (as written majority notes), HHC and its administrator unambiguous provisions of the contract must be applied contrary by as written and are not construction this Court.18Rossville Fed. S & L Assn. v. America, Ins. Co. North 121 of App. (174 204) (1970); 435, Ga. 438 SE2d Nationwide Mut. Fire Ins. App. (352 612) (1986). Tomlin, Co. v. 413, 181 Ga. 414-416 SE2d estoppel Moreover, the doctrine of based on the conduct of HHC or its third-party applied require coverage administrator cannot be for a procedure clearly coverage by plan. medical excluded from the HHC App. Caribbean Lumber Co. v. &c., Phoenix Assurance Co. 227 Ga. (488 718) (1997). 236, 240-241 estoppel SE2d “Neither waiver nor can liability be used to create a not created the contract and never assumed plan].” [HHC] under the terms of the [health care (Citation punctuation omitted.) Washington v. Accident Hartford App. (288 343) (1982). Co., & Indem. 161 Ga. 432 SE2d Accord ingly, may initially the fact that HHC or Blue have denied coverage wrong provides finding for the reason no basis for that HHC estopped deny clearly was excluded

Finally, majority’s there is no basis for the conclusion that HHC enforcing was barred from limitation because Mr. Bohannon had no notice of the limitation or because he was denied an opportunity plan. to review the HHC The record shows that HHC adopted a health care with Blue Cross as the January 1, administrator informed effective 2003. HHC its covered — party Contracts of adhesion those where one must take or leave terms written and - imposed by party legal, the other ambiguities are common and hut in the contract are strictly against Davies, construed the drafter. App. Western Mut. Ins. Co. v. 267 Ga. Pacific (601 363) (2004). n. 5 SE2d employee, care the health Bohannon, the existence of Ms. of get about information her where she could letter and told clearly ofthe aware ofthe existence Mr. Bohannon were and Ms. paid received Mr. cancer treatment for extensive first asked information in 2003. When Ms. Bohannon plan coverage in December 2003 after HHC about the requested information. The rule under denied, HHC did have that, if Bohannons these possession even circumstances plan coverage explaining until the HHC a document of they denied, informed of the existence of after were charged rely they sought benefits, so were with on its knowledge Trucks, v.Mack its contents and limitations. Brown Farm, 208) (1965); App. (141 &c. Co. v. 164, 166 Ga. Ins. Ga. SE2d (1986); App. (343 Owens, Southeastern Empire Banking Security Co., 756-757 Ins. Co. 282) (1998). Virtually applying long-standing deal all of cases rule they adhesion, contracts, with whether be insurance contracts plans, health or other contracts drafted and offered without care change public. majority employees general sweeps these mentioning cases them and rules that aside without clearly excluded because the HHC was a adhesion, and did not with contract of Bohannons copy plan showing specific until after exclusion they copy. support was imposing for and received a denied asked majority adhesion, this new rule on contracts of cites to Sandblasting Co., First Financial Ins. Co. v.American Ga. First holds 232-233 Financial coverage ambiguities against of adhesion are construed contracts *11 duty drafter, and therefore the drafter “assumes a to define explicit on that in clear and terms.” This limitations provides Id. support majority’s ruling no coverage sought unambiguously excluded Mr. Bohannon. I find Georgia support majority’s no in for the refusal to enforce the law unambiguous of the HHC health care Presiding Judge joins I in am authorized state that Blackburn this dissent. February

Decided denied March

Reconsideration Constangy, Jeffery Thompson, Smith, Brooks & L. J. William II, III, Drew, Farnham, Martin Frank L. Butler Eckl & Richard I. Metzger, Manning appellants. Morris, Martin, Hassett, & Lewis E. appellee.

Adams, Treadwell, Treadwell, Jordan & T. Marc A05A0718. SHELNUTT et al. v. GEORGIA DEPARTMENT OF

TRANSPORTATION. (611 Presiding Judge. Andrews, injured After Michael and Terri Shelnutt were in a traffic acci- they Department Transportation (DOT) dent, sued the and another claiming driving motorist, that the motorist was too fast and the DOT negligent failing to correct unsafe conditions at the site of the accident. The DOT moved to dismiss the suit because the Shelnutts comply requirements failed to with the ante litem notice Georgia granted Tort Act. Claims The trial court the motion and this appeal find followed. We no error and affirm. Legislature Georgia enacted the Act, Tort Claims seq., applica

OCGA § 50-21-20 et in order to balance strict sovereign immunity against tion of the doctrine of the need exposure treasury liability. for limited of the State to tort Dept. of Transp., 826) (1997). Norris v. 268 Ga. 192 expressly provides The GTCA that the State shall be (a), Act, liable within the limitations ofthe OCGA § 50-21-21 requirements which includes the ante litem notice in OCGA supra. Norris, § 50-21-26. Harris,

Ga. Ports Auth. v. provides:

OCGA § 50-21-26 (a) person, corporation having firm, No a tort claim against bring any the state under this article shall action against upon giving the state such claim without first notice of the claim as follows:

(1) given writing Notice of a claim shall be within 12 months of the date the loss was discovered or should have provided, discovered; been however, for tort claims and causes of action which accrued 1, 1991, between July given writing 1, 1992, notice of claim shall be July 1, 1992; within 12 months after