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:
- 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.
- 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.