Timeliness of insurance claim investigation and payment is often critical to the well-being of a policyholder.  One of the fundamental “rules of the road” of good faith claim handling requires the insurance company to timely investigate, evaluate and pay claims if owed.  Likewise, a company’s unreasonable, unfair failure or refusal to do so is bad faith.  Unfortunately, all too often insurance companies engage in delay tactics that put their policyholders in unnecessarily difficult situations.

Under the law, unreasonable delay may be tantamount to a denial of the claim.  As a result, to delay resolving the claim may be bad faith in and of itself.

Why is timeliness so important in claim handling?  Oklahoma law recognizes the practicalities of the relationship between the insurance industry and the insuring public:

Among the considerations in purchasing . . . insurance, as insurers are well aware, is the peace of mind and security it will provide in the event of an accidental loss . . .’   The very risks insured against presuppose that if and when a claim is made, the insured will be. . . in strait financial circumstances and, therefore, particularly vulnerable to oppressive tactics on the part of an economically powerful entity.

Christian v. American Home Assur. Co., 577 P.2d 899, 1977 OK 141 (Okla. 1977).

Insurance companies are well aware of this law.  They know they are not supposed to drag their feet and use delay as a weapon to extract cheaper claim settlements from their policyholders.  But too often they do just that.  Sometimes an adjuster, knowing that the policyholder could really use insurance money to restore their lives after a loss, will allow large blocks of time to go by during the life of the claim, all the while hoping the policyholder will throw in the towel and take less than a fair amount of money just to get the claim over with.

Policyholders are entitled to to prompt resolutions of their claims.  Part of each premium dollar paid by a policyholder is paid for claim service – in other words, part of your premium goes to pay for the insurance company’s claim department to handle your claim.  If you’re paying for claim service when you pay your premium, you should get what you pay for – actual claim service.

Sometimes, insurance companies engage in what I’ve heard referred to as “studied indifference.”  In other words, the company simply ignores the claim and never makes any real effort to bring it to a conclusion because to do so requires them to be proactive.  Many times, the adjuster is overloaded with the number of claims (usually in the hundreds) she is supposed to handle because the insurance company does not want to hire more adjusters.  Her supervisor, in turn, is supervising multiple adjusters and each of them have far too many claims (hundreds) to handle.  As a result, the supervisor is “supervising” thousands of claims.  Of course, it isn’t humanly possible to “supervise” the handling of thousands of claims.  But, the insurance company does not want to hire more supervisors.

In these situations, policyholders’ claims fall through the cracks.  They receive no meaningful attention whatsoever from the adjuster, and the supervisor has no idea what is really going on in the claim.  All the while, the policyholder  is beating his head against the wall feeling as if nobody is listening and nobody cares about the fact his home is damaged or he can’t pay his medical bills.  And, sadly, the policyholder is often exactly right.

Insurance claim delays can cause real pain to real people.  This should never happen if an insurance company does what it knows it is required to do under the law and timely resolves claims.

 

How can an insurance company’s evaluation of its policyholder’s personal injury claim be considered fair, reasonable and in good faith if the insurance company cannot explain how it arrived at the dollar value it assigned to the claim?  I don’t believe it can.

This issue often arises in uninsured motorist (“UM”) breach of contract/bad faith cases.  As part of the handling of such a claim, an adjuster must place a value on the policyholder’s personal injury claim so that the adjuster can then determine what amount (if any) of UM benefits are owed to the policyholder. To assign a value to the policyholder’s personal injury claim, the adjuster must determine what amount of medical bills are recoverable by the policyholder as well as what amount of money is recoverable by the policyholder for “general damages.” General damages include subjective items of damage like past and future physical pain-and-suffering, past and future mental and emotional pain-and-suffering, disability, disfigurement, etc.  The duty of good faith requires the adjuster to place a fair and reasonable value on each of these elements of damage suffered by their policyholder.

All too often, insurance adjusters pluck a number out of the air to assign to the general damage portion of the personal injury claim. In my experience, adjusters often choose this number on the basis of what amount they would like to pay for the claim, not on the basis of what the claim is actually fairly worth.

Sometimes, adjusters choose the number assigned to the damage portion of the claim based on the amount of money they think the policyholder might accept to settle the claim, as opposed to what the claim is actually fairly worth. Then, when called to account for their evaluation in the context of a deposition in a bad faith case, the adjuster will almost always default to the position that the number was chosen on the basis of their “experience.”  Of course, an insurance adjuster’s “experience” is derived from settling claims as cheaply as possible to garner the favor of their managers at an insurance company.

Further, to complete the loop, the adjuster will almost always argue their evaluation is as good as anyone else’s, and therefore any dispute about their evaluation is simply a “legitimate dispute.”  Adjusters often act as though they don’t know the law on insurance bad faith during a deposition, but they somehow always seemed to know what a “legitimate dispute” means from a legal standpoint.

In my experience, the determining factor as to whether an insurance company’s evaluation is fair and reasonable is whether the adjuster can explain it in detail under oath in a deposition. I have found adjusters can rarely, if ever, do so credibly. Almost without fail, the adjuster will have chosen an arbitrary dollar figure to place on the entire amount of general damages, and will not have analyzed each recoverable element of general damages individually. Therefore, for example, when an adjuster is asked what portion of the general damage dollar amount in his evaluation was assigned to past physical pain-and-suffering or future mental pain-and-suffering, the answer will almost always be “I don’t know.” If the answer is anything else, it will likely not be documented in the claim file as such and will appear to be nothing more than an effort by the company’s lawyers to come up with an explanation of the evaluation that did not exist at the time the evaluation was done.

When the bad faith case is tried, the question for the jury will be: how can the insurance company’s evaluation be considered fair, reasonable and in good faith if the adjuster who did the evaluation cannot tell the jury the good faith basis for the dollar figure placed on each element of recoverable damage?

            

The momentum created by the Cunningham v. Aetna case in Oklahoma has contributed to a national trend of lawsuits being filed against health insurers who deny proton therapy to their policyholders suffering from cancer.  Readers of this blog may will recall the Cunningham vs. Aetna case in Oklahoma County, Oklahoma in November, 2018. In that case, the jury found Aetna wrongfully denied proton therapy to treat the cancer of its policyholder, Orrana Cunningham. Mrs. Cunningham’s tumor was immediately adjacent to her brain stem and other critical structures in her head. You can read the full story of her case here.

The result was a $25.5 million verdict in favor of the Cunningham family. This appears to have been the first large verdict against the health insurance industry regarding a proton denial anywhere in the country.  The verdict is now on appeal. Whether the verdict is upheld on appeal or not, it appears to have had an effect on the way proton therapy is being viewed by patients, treating physicians and insurance companies around the country. Since the Cunningham verdict, multiple class actions have been filed on behalf of classes of proton patients whose claims have been denied by their health insurance companies. Other insurance bad faith cases involving proton therapy for individual patients have also been filed.

Because of the Cunningham case and the national publicity it received, awareness of proton denials has certainly been raised.  More and more patients who need proton therapy have become aware that when an insurance company denies them that therapy, they may have legal recourse to challenge the insurance company and maybe, under the right circumstances, sue the insurance company for insurance bad faith.

Proton therapy is a high tech cancer treatment prescribed by radiation oncologist for patients whose tumors are found in difficult locations in their bodies, specifically when the patient’s tumor is adjacent to a healthy “critical structure” of the body. For example, according to highly trained and experienced radiation oncologists at places like MD Anderson and the Mayo Clinic, proton therapy is often the appropriate treatment for a tumor located adjacent to critical structures of a patient’s body like the brain, the brainstem, the heart, the esophagus, the lungs, etc.

There are numerous reasons for this, the most important of which is that proton therapy can be delivered/targeted much more precisely than alternative forms of radiation therapy like photon radiation.  There are very specific scientific reasons this is true, and they can be explained in a compelling way by a radiation oncologist who is familiar with the difference between proton therapy and radiation delivered by photon (referred to as “intensity modulated radiation therapy” or “IMRT”.

Proton therapy Has been used to treat cancer in human beings since the 1950s and has been FDA approved since the 1980s. It has been around as long as IMRT. However, as technology has advanced and more people have been successfully treated with proton therapy over the years, it has become much more widely available to the general public. This is because there have been more proton centers offering the therapy opened around the country over the last couple of decades. Where there used to be only a handful of proton centers, now there are in excess of 30 just in the United States.

Access to proton therapy gives physicians and patients alike a full range of treatment options for a patient‘s cancer.  Any cancer patient or cancer doctor would tell you more options for treatment or better than fewer.

Generally speaking (but not always), proton therapy is more expensive than photon therapy because the equipment/machinery needed to generate a proton beam (the delivery mechanism for protons to cancer cells in the body) is more expensive to build and maintain then the equipment/machinery needed to generate photons for IMRT treatment. Therefore, because protons are generally more expensive than photons, our friends in the health insurance industry have decided to wage war against the proton industry in an apparent effort to curtail the continued development of proton technology. The only real reason the insurance industry has to deny patients access to proton therapy is to attempt to increase its profits at the expense of its policyholders who have the misfortune of being diagnosed with cancer.

I for one am very hopeful that our work in the Cunningham case and other proton cases around the country will continue to have a positive impact for cancer patients in need of this life-saving treatment. Let’s hope that one day the insurance industry will stop putting its profits ahead of patients who need proton therapy. My guess is they won’t do so without a fight.  Until then, my law firm and the lawyers I collaborate with around the country will continue to fight for patient rights.  Only by holding the insurance industry accountable when they do wrong can we hope to really make change.

You can find more information about my firm and what we’re doing at:  www.dougterrylaw.com.

As we frequently discuss on this blog, insurance companies owe a duty of good faith and fair dealing to their policyholders. Unfortunately, insurers regularly violate this important duty in a myriad of ways. This is not uncommon. However, it is very uncommon for an insurance company’s actions to be called out as forcefully as they were in an April 29, 2019 order issued by United States District Judge Robert N. Scola, Jr. in Miami, Florida.

Judge Scola was assigned to preside over a class action brought against United Healthcare. In that case, it is alleged that United wrongfully denied coverage for proton therapy to its cancer patient insureds. Judge Scola felt the need to recuse himself from the case because of personal experiences in his own life, and he entered a written order explaining those experiences.   Judge Scola wrote that he had been diagnosed with prostate cancer in early 2017, and consulted with top medical experts around the country. According to Judge Scola, those experts told him that if he opted for radiation treatment for his cancer, proton therapy was by far the wiser course of action. Judge Scola also noted in his order that a very close friend of his was diagnosed with cancer and that friend’s physicians at MD Anderson in Houston recommended proton therapy. Judge Scola’s friend, who was insured by United, had coverage denied for the proton therapy, but luckily had the money to pay $150,000 for the therapy out of pocket. Only when Judge Scola’s friend threatened to sue United did the company agree to reimburse the money.

Judge Scola then stated what is obvious to cancer patients seeking proton therapy and radiation oncologists who utilize proton therapy to treat their patients on a regular basis. Judge Scola wrote:

It is undisputed among legitimate medical experts that proton radiation therapy is not experimental and causes much less collateral damage than traditional radiation. To deny a patient this treatment, if it is available, is immoral and barbaric.

In my opinion, the tide is turning on the health insurance industry as it relates to proton beam therapy. Readers of this blog will recall the case of Cunningham v. Aetna, which I tried in Oklahoma City in late 2018. That case involved Aetna’s denial of proton therapy to Oranna Cunningham, who was suffering from a nasopharyngeal tumor located within 2 mm of her brainstem. Like Judge Scola’s friend, Oranna was being treated at MD Anderson in Houston, and her doctors there recommended proton beam therapy as the best way to deliver a curative dose of radiation to the cancer while avoiding radiating critical healthy tissues immediately adjacent to the tumor (like the brain stem). Aetna fought Oranna’s case aggressively for 3 1/2 years before trial. The case was tried for over two weeks and resulted in a verdict of $25.6 million. The jury found proton therapy is not experimental or investigational. They also found Aetna’s conduct in denying proton therapy to Mrs. Cunningham was in bad faith and recklessly disregarded her rights. $10 million of the verdict was for punitive damages, with the jury stating after the trial they thought Aetna’s system was broken and they gave their verdict in hopes that Aetna would fix it.

Since that verdict, other cases around the country have been filed against health insurance companies alleging denial of proton therapy for cancer patients is an act of bad faith. There are at least two class actions (including the one formerly assigned to Judge Scola) seeking to recover damages for classes of people whose proton therapy has been denied. Judge Scola’s unsparing order setting forth his own opinion based on his own experiences has shined a light on this issue. Judge Scola has done a tremendous service to the population of people in our country who have cancers that call for proton therapy to be utilized. Lawyers like me who have experience taking on huge health insurance companies to hold them accountable for this practice have been aware of the tragic consequences of the health insurance industry’s “immoral and barbaric” conduct for years.

Undoubtedly, the insurance industry and its shills in the medical community will cry and moan about Judge Scola’s assessment of the propriety of their practices. They will act as though Judge Scola does not know what he’s talking about and claim their position on proton therapy is somehow justified by a strained reading of the science. But, the industry is in denial.  Like the jury in Cunningham v. Aetna in Oklahoma City, real people will see right through the industry’s rhetoric. The conclusion is inevitable: the insurance industry desperately seeks reasons not to pay for treatments like proton therapy because the industry prioritizes its own profits over the health and welfare of its policyholders.

A high-profile California insurance bad faith lawsuit brought by Gillen Washington and his attorney Scott Glovsky against his health insurance company, Aetna, has now been settled.  In this case, first reported on by CNN, evidence emerged in the form of the Aetna-in house doctor’s testimony that Aetna medical directors make decisions on policyholders’ claims without first reading the medical records submitted to Aetna by policyholders and their doctors.  When the California Department of Insurance learned of this evidence, it launched an investigation into Aetna’s claim handling practices in that state. Several other Departments of Insurance in other states followed suit and began investigating Aetna’s practices as well.

In response, Aetna took an aggressive stance.  It issued a press release in which it alleged a “gross misrepresentation” of the evidence in Mr. Washington’s case.  Aetna pointed to a statement issued by the Aetna in-house doctor and claimed, among other things, his deposition testimony had been taken out of context.  Further, with regard to Mr. Washington’s case, Aetna stated in its press release:  “Our policies always have our members’ best interests in mind.  When those policies are called into question, we will defend them.”

However, as CNN reported last week, Aetna has now settled Mr. Washington’s case, choosing to do so instead of defending its policies when they had been called into question.  Aetna did not offer an explanation as to why it had settled the Washington case, instead saying the settlement was not an admission of liability and Aetna does not comment on settlements.  The CNN story went on to say:

News of the settlement raised eyebrows in the legal community. “In my experience with Aetna, they don’t settle cases easily, despite their public pronouncements in the media,” said Doug Terry, an Oklahoma attorney who won a $25 million verdict against Aetna last fall over a “bad faith” case in which a cancer patient was denied coverage.

Hopefully, health insurance companies have learned from Aetna’s experience in Mr. Washington’s case in California that deciding the health insurance claims of its policyholders without doing the proper inquiry before denying them is a practice to be abolished.  A proper inquiry requires a careful review by well-qualified, well-trained, non-biased personnel of all the pertinent evidence gathered in a complete investigation of the facts.  If health insurance companies are not performing these basic claim-handling functions (in return for their policyholders’ hard-earned premium dollars) they should be held accountable, either by regulators or in court.

United Healthcare (“UHC”), the largest health insurance company in America, was found by the California Department of Insurance to have committed over 900,000 violations of California laws and regulations.  As a result, the California Insurance Commissioner imposed $173 million in fines.  UHC challenged the fines in court, and in early January the California Supreme Court upheld $91 million of those fines.  The remaining $82 million in fines are still pending on appeal.

According to a CNN story the California Insurance Commissioner who began the investigation was quoted as saying: “ PacifiCare [which was bought by UHC] sought to weaken consumer protections to allow insurers to escape liability when they intentionally deny expensive but life-preserving medical care.  This is an important victory for California consumers and consumers across the country.”  UHC engaged in a long legal battle with the California Department of Insurance, but the commissioner ultimately imposed the fines, which the Supreme Court recently upheld.

There are very few ways the health insurance industry can be held accountable for wrongdoing.  One of them is when an insurance commissioner is tenacious enough to take on the industry.  A fine like the one in California should very well get the attention of UHC, and in theory it would cause UHC to change its ways.  We can all hope.

The other way the health insurance industry can be held accountable is in a lawsuit filed by a policyholder with the guts and determination to fight a difficult battle, represented by lawyers who can go the distance.  While the California fines against UHC are encouraging, they amount to only about $200 per violation.  An insurance bad faith case can result in substantial amounts of money for each policyholder who brings such a case, and if the policyholder wins, he or she get compensated for what the insurance company put them through.  In some cases, a jury might even award large punitive damages to send a message to the insurance company to change its ways.

Aggressive investigation and enforcement by insurance commissioners and departments, along with bad faith lawsuits, are the only meaningful way for regular people to stand up to the power of the multi billion-dollar insurance industry.

I am happy to announce we obtained a $25.6 million verdict for our clients Ron and Orrana Cunningham this week in Judge Lisa Davis’ court in Oklahoma County.  The case is Cunningham v. Aetna, CJ-2015-2826.  It is a non-ERISA health insurance bad faith case.  I apologize for the length of this post, but I think this is a story worth telling.  I tried this case for 12 days with my former law partners, Justin Meek and Tom Paruolo.  They were awesome.  You can get in a fox hole with those two and know they’ll fight with you to the bitter end.

Our client is Ron Cunningham, a retired OKC firefighter.  He is the toughest, most tenacious client you could ever ask for.  He has been battling for justice in this case for 3 ½ years.  The case has been on file since May, 2015, and it has been fought by Aetna tooth and nail at every turn.

Ron’s wife Orrana (a really amazing person) was diagnosed with stage IV nasopharyngeal cancer in November, 2014 when she was only 53 years old.  This is Orrana.

Orrana is described by her loved ones as an extremely soft-hearted, caring person who always had a bright smile and a helping hand for those in need.  Ron says he never knew anyone who met Orrana who wasn’t immediately taken by her warm nature.  She brightened everything she touched.

She was also a hard-working person who loved caring for the horses and cattle she and Ron kept on their beloved farm near Meeker, Oklahoma.  Orrana was proud of the fact that she was an excellent fisherman, and invariably caught the most and biggest fish on every outing.

This diagnosis came a couple of months after Ron and Orrana had finished building a house (almost entirely with their own two hands) on a farm near Meeker in eastern Oklahoma County.  It was Orrana’s dream house.  She hung sheetrock and set tile and stained the logs for the log cabin exterior.  She and Ron worked on the house for three years.  Orrana took care of the farm and worked on the house full time, while Ron would go to work as a firefighter then join Orrana to work on the house in the evenings, on weekends, etc.  It took them three years to build.  They built the house with a west-facing front porch so they could sit together and watch the sunset.

When Orrana was diagnosed, the Cunninghams sought medical advice here in OKC and were told, due to the difficulty of her case, they should go to MD Anderson.  They immediately got down to Houston.

MD Anderson is an incredible place.  I had never been there before this case (and hopefully will never be there as a patient or family member of one), but the level of expertise and professionalism is mind-boggling.  MD Anderson is the kind of place where you can find an entire group of radiation oncologists who specialize in head and neck cancers.  They are also, as you might imagine, on the cutting edge technologically.  The MD Anderson doctors we met and deposed from there were incredibly compelling witnesses.  Their testimony was powerful to the jury.

MD Anderson evaluated Orrana and determined she needed proton therapy.  Her tumor was at the base of her skull, adjacent to multiple “critical structures” in her head.  These included her brain, her optic nerves and her brain stem.  For example, the tumor was between 2 mm and 3 mm from the brain stem.  The advantage of proton therapy over traditional radiation therapy is that it can be delivered with the most precision of any kind of radiation, thus sparing radiation dose to the adjacent critical structures.  When those critical structures are the brain, the optic nerves and the brain stem (among others) it is critically important to deliver the radiation as precisely as possible.  The MD Anderson doctors told Ron and Orrana they could kill the tumor with both protons and traditional radiation, but proton therapy would increase the chances that she would be cured without devastating side effects.  Those side effects included (among others) blindness, loss of memory, loss of the sense of taste, and potentially death.  In order to kill the tumor, the doctors had to deliver a high enough radiation dose that the same dose delivered to the brain stem (2-3mm away) could kill her.

Obviously, the Cunninghams wanted proton therapy.  MD Anderson submitted a request for coverage to Aetna on their behalf.  The evidence at trial showed three different Aetna nurses recommended the claim be denied because proton therapy is “experimental or investigational,” and three different Aetna in-house “medical directors” denied the claim because proton therapy is “experimental or investigational.”  One of the Aetna medical directors did a telephonic “peer to peer” call with one of the MD Anderson radiation oncologists.  The evidence was this Aetna doctor was an internal medicine/family practice doctor before going in-house 25 years ago, and had never treated a single patient for anything since.  The evidence was that during the “peer to peer” phone call, this Aetna doctor told the MD Anderson doctor (according to the MD Anderson doctor’s testimony, which the Aetna doctor did not refute because he couldn’t remember the call) that he knew the MD Anderson doctor was right, but he had to deny the claim anyway.  The evidence was the other two doctors who denied the appeals of the initial denial were a general surgeon and a hematologist/oncologist, neither of whom have ever treated a single patient with radiation of any kind.

As it turned out, the evidence showed the Aetna doctors (in addition to being medically unqualified to make the decision on this claim), had never heard of the duty of good faith, had never received any training on the obligations owed by Aetna to its insureds under Oklahoma law, were sorely overworked (one was loudly complaining in her personnel file about working 16-hour days and deciding 80+ claims per day) and were receiving sizable bonuses each year, based in part on the profit of Aetna.  Each of the medical directors spent about 30-45 minutes reviewing the claim (including a 150+ page appeal package sent to them by MD Anderson).  At trial, each medical director claimed to have read everything in the file in that amount of time.  Apparently, the jurors did not believe them on this.  In contrast, each of the medical directors (who testified live in our case in chief) testified they had spent days and days preparing for their trial testimony.  We presented an insurance industry expert, Stephen Prater, to testify regarding his opinion that Aetna’s conduct in this case was egregious and an extreme deviation from industry standard practices.

Also, the evidence at trial was that none of the medical directors even read the insurance contract before denying the claim.  Apparently, they instead relied on Aetna’s “Clinical Policy Bulletin” or “CPB” as the basis of their denial, which is not a part of the insurance contract Aetna sold the Cunninghams.  Aetna is very proud of the CPB, which purports to set forth the state of the science on proton therapy.  We showed the jury through a radiation oncology/proton expert, Dr. Andrew Chang, (who also did an incredible job explaining to the jury what proton therapy is and why it was the thing Orrana needed) that the CPB is outdated, skewed and cherry-picked in the way it refers to the medical literature.  In any event, at trial, the Home Office Aetna doctor in charge of writing the CPB’s had to admit the CPB’s are not designed to decide claims, but only to serve as a resource for the Aetna medical directors if they need it.  The medical directors are supposed to decide these claims on the basis of their own expertise and judgment.  This, of course, puts the Aetna medical directors’ expertise and judgment squarely at issue.

After the denials, Orrana was in a horrible position.  She needed this life-saving treatment for her life-threatening condition.  The repeated denials had taken away Orrana’s hope of receiving the treatment her doctors said would cure her cancer and minimize her side effects.  At one point, she told Ron:  “Maybe this wasn’t meant to be.  Let’s just go home.”  Ron was willing to do whatever it took to get his wife the best care available.  Ron told MD Anderson money was no object, and learned the treatment would cost $92,082.19.  He went right straight to his bank in Oklahoma and borrowed the money against the dream house he and Orrana had built.  He took a cashier’s check to MD Anderson and paid cash on the barrel head up front for the full treatment.  He never hesitated.  He loved Orrana unconditionally.  Orrana felt horrible about the fact her illness was causing this financial burden, but Ron wouldn’t hear of it.

Orrana got the treatment (which is tough to go through – 30+ treatment days spread out over about 6 weeks in Houston) and it appeared to be working.  Orrana hated tight spaces, so any time she was getting a scan or MRI, Ron was by her side, rubbing her feet and hands.  Orrana’s sister Pam testified at the trial that it was incredible how caring and attentive Ron was to Orrana.  Pam said Ron never left her side.  Ron was a cancer survivor himself.  He testified at trial that Orrana never left his side when he had cancer, and he wasn’t about to leave her side when she needed him.

Orrana was released to go home, and she got to “bang the gong” at MD Anderson, symbolizing the end of her treatment.  The evidence was the financial stress of the whole situation (in addition to the fact she was battling cancer) weighed on her heavily.  When she got home, she developed an outbreak of herpetic encephalitis, her brain swelled uncontrollably causing her brain stem to herniate and she died.  Ron filed his lawsuit shortly thereafter.  He and Orrana had talked about it and she wanted him to stand up for her and for himself against Aetna.  And he sure has.

After 12 days of trial, the jury found:

  1.  Aetna breached its insurance contract with the Cunninghams, effectively meaning they found there was coverage under the Aetna policy for proton therapy for Mrs. Cunningham’s nasopharyngeal tumor. They awarded the Cunninghams the $92,082.19 they paid out of pocket for proton therapy. We believe this finding could be very important in the course of the ongoing effort by the insurance industry to restrict access by patients to protons.  We hope so.  This was one of Ron’s major motivations in pursuing the case.  In effect the jury determined the experimental and investigational exclusion in the policy does not apply to exclude proton therapy in this situation.
  2.  Aetna acted in reckless disregard of the duty of good faith and fair dealing it owed the Cunninghams in connection with the way it investigated and evaluated their request for coverage for proton therapy. This allegation focused on the manner in which the Aetna nurses and medical directors involved in the claim did their work. We offered evidence and argument in court that the Aetna claim handling system is designed to utilize unqualified, untrained, overworked and biased personnel to consider claims like this. The jury agreed.

The jury awarded compensatory damages for the emotional distress caused by Aetna’s repeated denials. They awarded Mr. Cunningham $500,000.00 individually. Then they awarded Mrs. Cunningham’s estate $15,000,000.00.

We then proceeded to a punitive damage phase of the trial. We argued to the jury that to send Aetna away without punishing them for what the jury had already found was reckless conduct would not be a just result. The jury agreed and awarded another $10,000,000.00  in punitive damages.  This brought the total verdict to $25,592,089.19.

We anticipate Aetna will likely appeal the jury’s verdict.  Ron says he is prepared to continue his fight for Orrana as long as it takes.  He is gratified to know the jury saw what Aetna did here the way he does.  Ron says his goal has always been to bring Aetna’s conduct into the public light in hopes Aetna will change the way it does things in the future.  He says he does not want what he and Orrana went through to happen to anyone else.

Click here for a link to KFOR-TV’s coverage of the verdict.

Click here for a link to the Daily Oklahoman story from Nolan Clay.

UPDATE:  The story of Orrana’s case has now garnered a lot of national news attention, including a detailed story by Wayne Drash on CNN.com.  Orrana’s story, originally reported very well by Nolan Clay of the Daily Oklahoman, was picked up by the Associated Press and has run in newspapers across the country, including the New York Times.  It has also gotten attention from CBS, ABC, Fox, Law360, National Insurance Journal and many, many other outlets.  To see more, please visit www.DougTerryLaw.com.

Insurance adjusters often don’t know how to properly interpret the language of the very insurance policies their companies sell their policyholders.  My experience tells me adjusters often read the insurance policy looking for any arguable as (even outlandish) way to deny coverage.  They take language out of context, misapply language to the facts of the claim and generally look harder for reasons to deny than for reasons to pay.  This is exactly the opposite of what the duty of good faith requires them to do – they should be looking harder for reasons to pay than for reasons to deny.

This phenomenon takes on many, many forms.  But one of the most common examples of the problem is when an adjuster makes a knee-jerk decision on coverage without knowing all of the facts of the claim that are required to make a fair decision about whether the claim is covered.  Adjusters too often don’t seem to fully grasp the concept that the duty of good faith requires them to conduct a full, fair and timely investigation of the coverage issues before denying coverage.

An insurance policy cannot be fairly interpreted in a vacuum.  A policy cannot be fairly interpreted based solely on the language of the policy, without an understanding of the claim facts to which the language of the policy is being applied.  A policy is a contract between the insurance company and the policyholder requiring the insurance company to provide coverage under certain circumstances, and not under others.  Therefore, how can an adjuster know if there is coverage if they don’t fully understand the circumstances of the claim?

The adjuster absolutely must investigate the circumstances before deciding to deny coverage.  Instead, the coverage “investigation” conducted by adjusters often consists of nothing more than a cursory reading of the policy language, a failure to gather all the pertinent facts of the claim, and a coverage denial lacking any thoughtful analysis.

If you’re like me early in my career, you may be wondering why adjusters do this.  The easy explanation (one that is often true) is that they look for ways to save the company money because that kind of behavior is rewarded by the management of the insurance company.  Denying claims is easier on an adjuster with his or her boss than paying claims.  But, as the years have gone by and I’ve taken more depositions of adjusters than I care to recall, it has become apparent to me that adjusters receive little to no training on how to properly conduct a good faith coverage analysis.  As a result, adjusters often know little about what the duty of good faith requires of them before they take a stab at interpreting difficult policy language and making an uneducated guess about coverage.  When this happens, the insurance company wins and the policyholder loses.  And the duty of good faith is violated.

A recent story in the Guardian reveals the statistics on how CEO pay at the largest US corporations has skyrocketed over the last few decades.  The Guardian story says in 1965, CEO pay was 20 times that of workers.  That would mean if a worker made $30,000.00 per year, the CEO would be making about $600,000.00.  However, today CEO pay has risen to an average of 312 times that of the average worker.  Therefore, if a worker is making $30,000.00, the CEO would be making $9,360,000.00.

The Guardian story gives a couple of specific examples, including the McDonald’s CEO making 3,101 times the average McDonald’s worker and the Wal-Mart CEO making 1,188 times the average Wal-Mart worker.  These numbers are shocking, but it goes further.  The CEO’s of the top 350 companies earn 5.5 times the amount earned by the average earner in the top one-tenth of one percent of earners.

Putting aside the politics of these statistics, it makes one wonder:  have CEO’s gotten this much better since 1965?

I believe this phenomenon is directly relevant to the way in which big companies treat their customers, and this includes the way insurance companies treat their policyholders.  When the people at the top of a company stand to become mega-wealthy if the company is more and more profitable, then those people (who are the ultimate decision makers on company direction and culture) will seek company profits at all costs.

To be sure, insurance companies are in business to make money.  And the insurance industry, in theory, serves an important societal purpose.  But if the insurance industry is nothing more than a profit-at-all costs behemoth, and the industry’s duty of good faith and fair dealing to its policyholders/customers is subjugated to the chase of the almighty dollar, the important societal purpose served by the insurance industry goes unfulfilled.  Insurance company CEO’s are making millions and millions of dollars every year, much of it in profit-based bonuses, stock options, etc.  Are insurance companies keeping their mission of providing security and peace of mind to their policyholders at the top of their priority lists?

 

When an insurance company receives a claim from its policyholder, the first thing the adjuster does is “check coverage.”  This means they verify the policy is in force by making sure the premiums have been paid and the policy period is in effect.  Then, the adjuster looks at the facts of the claim the policyholder is presenting to determine if the insurance policy language provides coverage for the claim.

This may sound simple (and it often is) but sometimes whether the facts of the claim are covered by the policy is not a black and white question.  Often, there are shades of gray on whether coverage exists.  Anyone who has read an insurance policy (or even part of one) knows they can be extremely hard to understand.  It might be surprising, but this is true of lawyers, even lawyers who practice insurance law.  There is a reason for this.  Most insurance policies are written in such a way that they are almost impossible to understand.

Over the years, I have come to believe that insurance companies attempt to write insurance policies so that only they know what they really mean.  If the language of the policy is incomprehensible and the policyholder has no idea what it really says, then the adjuster has the power to tell the policyholder what is covered and what isn’t without the policyholder being able to dispute it.  Way too often, policyholders hear an adjuster say “there’s no coverage for your claim,” throw up their hands and walk away.  They feel like they can’t take on the big, bad insurance company and win.  This is not true.

In reality, most insurance adjusters have very little training or ability to fairly read and interpret policy language, even if they think they do.  Insurance adjusters have a tendency to look for reasons there is not coverage, as opposed to broadly interpreting the policy language to attempt to find coverage.  Also, adjusters often overlook the fact that the duty of good faith requires them to fully, fairly and timely investigate and even-handedly evaluate coverage questions, just like liability or damage issues.  As a result, coverage denials are often based on superficial, knee-jerk readings of policy language by untrained or unknowledgeable adjusters.

Policyholders who are told there is “no coverage” for their claim should demand a written, detailed explanation of the adjuster’s position, including reference to specific policy provisions the adjuster says preclude coverage.  Then, if the policyholder has questions, they should contact an experienced lawyer to help them understand their rights.