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Fitts v. Federal National Mortgage Association, 2002 WL 264841
(D.D.C. 2/26/02)

Fitts deals with a frequently litigated issue: what constitutes a mental or nervous disorder? The specific question in Fitts is whether a bipolar disorder constitutes a physical impairment for which disability benefits are payable to age 65; or is it a mental disorder for which benefits are only paid for two years. Fitts held that the condition is a physical disorder based on the policy definitions contained in the UNUM policy at issue.

Fitts, an attorney for Fannie Mae, qualified for benefits based on her psychiatric condition. However, when UNUM informed her that she would only be paid for 24 months due to her condition being classified as a mental disorder, she brought suit challenging the mental illness limitation as applied to bipolar disorder.

In arguing her position that the condition was a physical disorder, Fitts was able to provide substantial support which included evidence that both her father and brother had the condition, thus suggesting a genetic predisposition; and she also produced brain scans indicative of atrophy of the parietal lobe of the brain. She also introduced an expert s declaration opining that bipolar disorder is a neurobiological condition affecting the physical structure and chemical activity of the brain. Despite behavioral and emotional symptoms, the physical changes in the brain are the cause of the disorder.

UNUM, on the other hand, argued in favor of bipolar disorder being deemed a mental, nervous or emotional disease or disorder of any type. The condition is classified in the Diagnostic and Statistical Manual of Mental Disorders. It is also treated by mental health professionals with psychotherapy and psychotropic drugs.

The court s analysis focused on how benefit plans are construed under ERISA. Following a longstanding principle of insurance law known as contra proferentem, ambiguous terms in a contract are to be construed against the insurer and in favor of the insured. The court relied heavily on Phillips v. Lincoln Nat'l Life Ins. Co., 978 F.2d 302 (7th Cir.1992), which applied that doctrine to a health insurance policy in finding that a mental condition with a physical cause is not subject to policy limitations for mental disorders.

In Fitts, the court catalogued the three approaches taken by courts in resolving these cases: Courts focus on the condition s (1) manifestations, i.e., its symptoms or (2) its causes or (3) its method of treatment, whether medically or psychiatrically. Under the cause-based approach, courts have typically decided in favor of insured, either because they found the definition of mental illness in a disability policy to be ambiguous, see, e.g., Phillips, 978 F.2d at 308, or because they found that diseases such as bipolar disorder were physical illnesses.

Judge Kennedy was unconvinced by UNUM s arguments because the policy language was unclear that the definition of a mental illness unambiguously included bipolar disorders merely because they are listed in the DSM-IV. The court found the terminology vague and rejected the notion of symptom-based definitions for illnesses because such a definition logically operates to turn illnesses that lay people might consider physical, such as brain damage resulting from an accident or a head injury, delirium caused by a fever or staph infection, brain cancer, a stroke with the effect of limiting the sufferer's cognitive abilities, or Alzheimer's disease, into mental illnesses.

The court also rejected the argument that classification of the disorder as a mental impairment in the DSM-IV means that it falls within the policy limitations. The DSM-IV also states:

[The term mental disorder unfortunately implies a distinction between "mental" disorders and "physical" disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much "physical" in "mental" disorders and much "mental" in "physical" disorders. The problem raised by the term "mental" disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of DSM-IV because we have not found an appropriate substitute. Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of "mental disorders."

As a result, the court saw no choice but the find the policy definition of mental illness ambiguous; and based on the submitted evidence establishing a physical relationship between Fitts condition and biological etiology, the court applied contra proferentem to hold that plaintiff was entitled to judgment. The court added in a footnote (fn.12), though, that better drafting could have resulted in a different result.

Discussion: Judge Kennedy did a remarkable job in analyzing the issues and collecting virtually every case that has wrestled with the mind-body dichotomy that causes litigation on this issue. The opinion truly speaks for itself and no further commentary is necessary other than to commend the opinion both to plaintiffs and defendants. For plaintiffs counsel, the focus needs to be on the policy language and whether the policy is clearly drafted. As an example, some policies specifically define mental illness or mental disorders as any condition listed in the DSM, regardless of cause. Defense lawyers need to be on the alert for ambiguous policy language. As neurobiology grows closer to finding the cause of most, if not all, of the mental diseases or disorders (including depression, schizophrenia, and anxiety disorders), it will become harder to sustain a policy limitation in the absence of clearly drafted terminology.