Insurer Faces $25.5m Payout After Denial of Proton Therapy

Alicia Ault

November 16, 2018

Could a massive payout for denial of cancer care ordered by an Oklahoma jury be a signal of things to come?

In the Oklahoma case, the jurors determined in a 9-3 vote that the health insurance company Aetna should pay $25.5 million to the widower of a woman who died after being denied proton-beam therapy by the insurer because the insurer had deemed the therapy experimental. She had nasopharyngeal cancer that was very close to the brain stem.

According to news reports, the jury forewoman said the damage award was meant to get Aetna's attention. "I hope it results in Aetna reevaluating how they evaluate appeals and requests," she told CNN.

Approached for comment, Ted Okon, executive director of the Community Oncology Alliance, told Medscape Medical News that he believes that insurers will increasingly be challenged on denials of coverage, especially as pharmacy benefit managers become more involved in vetting cancer patients' pharmaceuticals. "The amazing thing is that there's only been one big suit like that," he said.

Proton therapy, however, may be a special case. Questions have been raised about whether it is more effective than conventional radiotherapy. That has not stopped a proliferation of proton-beam therapy centers around the world, and particularly in the United States, which has 28 centers and another 23 under construction.

In a May 2018 report, the Alliance for Proton Therapy Access found that 63% of oncologists' initial requests for proton therapy were denied; 58% were ultimately approved. Patients who are denied coverage wait an average of 6 weeks for a final decision, said the report by the alliance, which is funded by the proton-beam industry.

"The jury's verdict against Aetna should be seen as an indictment against all insurers that improperly deny cancer treatment," said Daniel E. Smith, executive director of the alliance, in a statement to Medscape Medical News.

This case sends a strong signal that insurers must fix broken processes. Daniel Smith

"This case sends a strong signal that insurers must fix broken processes and ensure cancer patients receive fair, timely, and transparent treatment reviews," he said.

Smith said that his organization had heard similar stories from patients about therapy that had been denied "based on outdated information and review by medical staff with little knowledge of the treatment."

Details of the Case: Proton Therapy the Only Option?

In the Oklahoma case, proton-beam therapy was seen as potentially the only option for the patient, Orrana Cunningham. When she was diagnosed with stage IV nasopharyngeal cancer in November 2014 at age 53, physicians recommended that she receive further consultation at MD Anderson Cancer Center in Houston, Texas.

Clinicians at MD Anderson recommended proton-beam therapy, in part because her tumor was 2-3 mm from the brain stem, according to the Cunninghams' attorney, Doug Terry, who wrote about the case in a blog post.

MD Anderson sought preauthorization in December 2014. Aetna denied coverage, stating, "medical studies have not proven that this procedure is effective for treatment of your condition," according to documentation Aetna provided to Medscape Medical News.

Orrana Cunningham sought external review in February 2015. The outside reviewer agreed with Aetna's determination, however, that "external review and its findings were not permitted to be used in court," Aetna said in a statement sent to Medscape Medical News.

In the meantime, the Cunninghams sought financial help through a fundraising site, and they mortgaged their home. They raised the $92,000 needed to cover the 30 days of therapy. After 6 weeks at MD Anderson, Orrana went home but contracted herpetic encephalitis, which led to her death. Ron Cunningham filed suit against Aetna soon after, said their attorney Terry.

At trial, it was revealed that Aetna medical directors (reviewers) were frequently overworked, handling more than 80 claims per day. In this case, they were not properly qualified to weigh in on the specifics, according to Terry. An internal medicine physician conducted the "peer-to-peer" discussion with MD Anderson's radiation oncologist. During that call, the Aetna physician said the procedure should be covered but that the denial was required according to Aetna's clinical policy bulletin (CPB), which included a summary of recent medical studies on proton-beam therapy.

Evidence presented at the 12-day trial showed that the CPB was not part of the insurance contract that was sold to the Cunninghams, said Terry.

In the end, the jury found that Aetna had acted in bad faith in denying coverage and that the insurer had breached its contract with the Cunninghams. They determined that the Cunninghams' policy did indeed cover proton-beam therapy for Orrana's condition.

Appeal Expected

The jury awarded the Cunninghams the $92,082.19 they had paid out of pocket for the treatment, plus compensatory damages for emotional distress — $500,000 to Ron and $15 million to Orrana's estate. In addition, the jury voted to award $10 million in punitive damages.

Terry said in his blog post that he expects Aetna to appeal.

In the statement Aetna sent to Medscape, the company noted that "the denial was upheld through two levels of internal appeal, with the second conducted by an Aetna-employed internist trained in medical oncology who previously treated head and neck cancers."

The insurer said that "our sympathies continue to be with the Cunningham family" but that the company believes it had acted appropriately.

"While we have no comment on the ruling, juror motives or a potential appeal, we do want to make it clear that the proper steps under the health plan were followed in this instance," said the company.

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