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.