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.

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