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.

In an excellent recent article in the New York Times,  a claim-handling practice by Anthem Blue Cross Blue Shield was brought into the public light.  Anthem has begun denying its policyholders’ claims for coverage for emergency room visits if Anthem determines after the fact that the policyholder didn’t really need to go to the emergency room in the first place.  Anthem is basing these decisions on what the final diagnosis of the policyholder’s condition turns out to be after being seen in the ER.  For instance, a person with a heart condition who experiences heart attack-like symptoms and goes to the ER might have coverage for the ER charges (often thousands of dollars) denied if it turns out the symptoms were not a heart attack after all.  This leaves the patient stuck to pay the ER bill out of pocket.

Apparently, Anthem’s has concluded that since the cost of an ER visit is much higher than a visit to an urgent care clinic or a primary care doctor, Anthem is going to scrutinize ER visits in this way.  I can see multiple problems with this approach from the policyholder’s perspecitve.

First, as illustrated by the account of one of the Anthem policyholders interviewed in the the Times article, Anthem’s position puts the policyholder in the unenviable spot of having to self-diagnose before visiting the ER.  If a heart patient is having heart attack-like symptoms, they should not have to gauge the nature and severity of the symptoms before deciding whether to seek treatment at the ER.  That’s what ER doctors are for.

Wouldn’t it be tragic if an Anthem policyholder decided not to go the the ER for fear Anthem would later deny coverage if the problem turned out to be less significant than they thought, then died of (for example) a heart attack?  How would Anthem defend itself in a lawsuit then?

Second, who at Anthem is making the decisions as to whether policyholders’ visits to the ER are covered?  As noted in a previous post, in my experience deposing in-house insurance company doctors, it turns out they are often grossly unqualified to render the medical opinions they’re called upon to give.  If my experience in lawsuits the health insurance industry is any guide, it’s likely insurance company doctors making decisions regarding ER visits to treat (for example) heart conditions will likely be (for example) family practitioners or internists not cardiologists.  The gross unfairness of this situation should concern every Anthem insured.  Plus, you can bet as Anthem’s profit increases as a result of this practice, other insurance companies are sure to follow suit.

Predicatably, Anthem apparently attempts to defend this practice by pointing out how much money it costs Anthem to pay for ER visits it thinks in hindsight were unnecessary.  The Times article says Anthem believes “as many as 5 percent” of ER visits are unnecessary.  Of course, Anthem will also say this “unnecessary” expense makes everyone’s premiums go up because Anthem has to pass these costs along to all of its policyholders.  This argument, which insurance companies use at every opportunity, is just a scare tactic to distract the public from the real “money story” here.

Anthem has done extremely well financially, and that financial success is reflected in the amount of money Anthem’s top executives make.   Anthem’s revenue for 2017 was over $90 billion (growing at an annual rate for the last five years of just under 8%).  Anthem’s profit for 2017 was $3.84 billion ($10.5 million per day).  The CEO of Anthem made $16.5 million in 2016 and $13.6 million in 2015.  How much would Mr. Swedish’s bonus have been if Anthem had paid for ER visits without second-guessing them?  Only $16.4 million?

Joseph Swedish, former Anthem CEO

The profit motive is a powerful force, even when people’s lives hang in the balance.  This is the state of our health care system in this country today.  Management people at health insurance companies are squeezing every possible nickel  of profit out of their claim-handling systems while endangering the lives of their policyholders.  All in pursuit of the compensation package that will make them wealthy at the expense of real people’s health and well-being.

Thanks to Reed Abelson (@reedabelson), Margot Sanger-Katz (@sangerkatz), and Julie Creswell (@julie_creswell) who wrote the Times piece on this telling subject.

CNN’s Wayne Drash (@drashmanCNN) has written a series of gut-wrenching, infuriating and telling stories recently regarding the health insurance industry’s treatment of policyholders.  They illustrate how profit is a more powerful motivator to the health insurance industry that policyholders.  Anyone interested in this issue specifically or responsible corporate behavior in general should take a look at Mr. Drash’s work.

In the most recent of these stories, Mr. Drash tells the story of Erika Zak, a 38-year-old mother whose stage 4 metastatic colon cancer had spread to her liver.  Without a liver transplant, Erika’s doctors say, she would die.  She is in the end stages of liver failure and her oncologists fear for her life every day.  After Erika was evaluated by numerous highly qualified doctors, it was determined her only chance of survival was a liver transplant.  She and her family rejoiced when she was put on the liver transplant recipient list.

That joy was short-lived.  Soon thereafter, UnitedHealth denied coverage for the liver transplant.  Erika and her family didn’t take no for an answer, however, and fought UnitedHealth at every turn, in every way they knew how.  All they wanted was what they knew Erika deserved, a chance at life with a new liver.  UnitedHealth was persistent in its denials, even in the face of the medicla evidence and Erika’s dire need for treatment.  To their credit, Erika and her family didn’t quit.  They wrote scathing, heartfelt letters to the CEO of UnitedHealth.  These fell on deaf ears.  The suffering they went through was tremendous, and this affected Erika and her family.  Then, incredibly, without explanation (even to CNN when asked) UnitedHealth changed its position and agreed to pay for Erika’s liver transplant.  Now Erika is waiting for a donor liver to come available. Mr. Drash’s storytelling of Erika’s journey is well worth the time to read.  It’s a real morality tale.

Here’s hoping one comes available soon so Erika and her loving family and her little girl can enjoy a long and happy life together.  Everyone should be pulling for Erika.  I certainly am.

This travesty begs the question:  Why should a person in Erika’s shoes have to beg and cajole an insurance company to provide the coverage she is entitled to?  The answer:  she shouldn’t.  If there is coverage for Erika’s transplant under her UnitedHealth insurance policy now, there has been all along.  Why would UnitedHealth cause such pain and sorrow before reluctantly agreeing to pay?  Why was it like pulling teeth for Erika to get the life-saving treatment she has always been owed?

Maybe, just maybe, the profit motive of the insurance company has something to do with it.  I don’t know what Erika’s transplant and the treatment associated with it would cost, but I would imagine the bills would be huge to a normal person.  Not to UnitedHealth, though.  No one health insurance claim will move UnitedHealth’s financial needle, but health insurance companies are good at making money.  So they find every opportunity they can to squeeze the water out of their claim costs.  Every claim is an opportunity to do so, especially the big ones like Erika’s.

David Wichmann, UnitedHealth CEO

Like its competitors in the health insurance industry, UnitedHealth has perfected the art of making money.  Its 2017 financial results tell that story.  UnitedHealth’s revenue for 2017 topped $200 billion for the first time ever.  That’s over $22.8 million in revenue per hour.  UnitedHealth made profit of over $10 billion in 2017.  That’s over $27 million of profit per day and $1.1 million of profit per hour.  The executives at UnitedHealth have done pretty well for themselves too.  The total executive compensation at UnitedHealth for 2017 was up by 34.1%, and the compensation paid to David Wichmann (the CEO) went up by 41% in 2017.  Mr. Wichmann was paid over $17 million in 2017.

What a breathtaking contrast.  A young mother dying because a giant corporation won’t pay for her life-saving health care, while the executives of the company (who are ultimately responsible for the way in which the company treats its policyholders) become obscenely wealthy.  This is the state of health care in America today.

If you follow the money, you find out why insurance companies disregard their duty of good faith.  A sickening morality tale if there ever was one.

 

When you make a health insurance claim, oftentimes your health insurance company will have a doctor employed by the company review the claim to see if it should be paid. The problem I have seen in a number of cases is the doctors reviewing policyholders’ claims are horribly unqualified to make fair decisions on those claims. For instance, if you make a health insurance claim for payment of medical treatment involving your heart, you would expect a cardiologist to make medical decisions for the health insurance company about your claim. A claim involving your heart, in other words, should be reviewed by a heart doctor. Would it seem fair to you if you submitted a claim involving treatment for your heart and it was reviewed by a general practitioner? Or if you made a health insurance claim involving brain cancer and it was reviewed by a pediatrician?

Nobody would think this is fair. Ever. However, incredibly, this is exactly what goes on all day every day in the health insurance industry. Health insurance companies put in place claim processing systems involving claim reviews by completely unqualified doctors. To compound the problem with this practice is that it is not disclosed to the policyholder.  Instead, the policyholder is almost always sent a generic denial letter from the insurance company that doesn’t tell the policyholder the name of the doctor or the doctor’s specialty/qualifications.  Why would the insurance company not want its policyholders to know whose opinions it is relying on to deny claims?

Because the health insurance industry has legal immunity in many situations from bad faith lawsuits, it operates differently in many ways than the remainder of the insurance industry. Health insurance companies do not tend to investigate and evaluate claims in the same manner as auto insurance or homeowners insurance companies.  My experience prosecuting bad faith lawsuits against health insurance companies has taught me the duty of good faith and fair dealing is far from their minds when deciding whether to approve payment for medical treatment of their policyholders.  Some health insurance denials are truly outrageous.

Our health care system in this country has many problems, but few are as troubling as when an insurance company tries to play doctor.

Why does the health insurance industry think they can get away with this?  Because too often, they can.  The health insurance industry enjoys special protections from liability for insurance bad faith claims that other kinds of health insurance companies do not.  In 1974, Congress passed the Employee Retirement Income Security Act or “ERISA.”  One of the effects of ERISA is to preclude insurance bad faith claims against ERISA-governed insurance policies.  If you bought your health insurance through a group sponsored by your employer, ERISA applies to preclude you from bringing a bad faith claim, with some exceptions.  These exceptions can be extremely important.

Generally, if you purchased your health insurance through a group health plan established or maintained by a governmental entity or a church, ERISA does not apply to your health insurance plan. Put another way, if you are a Government employee (local, county, state or federal) or a church employee, it is likely your health insurance plan is not governed by ERISA and therefore you can bring a bad faith claim against your health insurance company.

Likewise, if you did not buy your health insurance through a group but instead bought it individually (for instance because you are self-employed or because you purchased your policy through the Affordable Care Act or “Obamacare” exchanges) ERISA does not apply to your policy.  Therefore, if you bought your insurance policy individually it is likely your policy is not governed by ERISA and therefore you can bring a bad faith claim against your health insurance company.

Very few people know these rules exist, and almost everyone who finds out wonders why.  Let’s just say the health insurance industry has a stronger political lobby in Washington, D.C. than anyone who would seek to oppose ERISA immunity from bad faith claims.

But, for those policyholders whose medical treatment is denied but who work for the government or bought their health coverage individually, there is recourse.  The duty of good faith and fair dealing applies, and the health insurance industry is not set up to defend itself effectively against these claims.  In the hands of the right lawyers, these can be very powerful cases.

 

CNN just ran an incredible story by Wayne Drash (see it here) on a health insurance claim denial by one of the country’s largest insurers, Aetna.  The story involved the case of Gillen Washington, a 23-year-old Californian, who is represented by attorney Scott Glovsky.  Apparently, Aetna denied medical treatment to Gillen based on the opinion of an Aetna-employed doctor who had not even read the medical records on Gillen.  In fact, the Aetna doctor testified in his deposition that as a matter of practice in his job reviewing policyholders’ claims at Aetna, he never reviewed the medical records of the policyholders.  Mr. Glovsky brought a lawsuit on Gillen’s behalf, and it is set to go to trial this week.

Now, the Insurance Commissioner in the State of California has opened an investigation into Aetna’s claim-handling practices.  The commissioner expressed concern over the Aetna doctor’s testimony and apparently intends to look into the matter.  Aetna denies any wrongdoing.

The CNN story quoted Dr. Arthur Caplan, founding director of the division of medical ethics at New York University Langone Medical Center, as describing Aetna doctor’s testimony as “a huge admission of fundamental immorality.  People desperate for care expect at least a fair review by the payer. This reeks of indifference to patients.”  CNN also quoted Dr. Caplan saying the  the testimony shows there “needs to be more transparency and accountability” from private, for-profit insurers in making these decisions.

 

This story appeared recently in the New York Times relating the story of Benjamin Poehling, a former finance director at United Health Group, one of the largest health insurers in the country.  Mr. Poehling is now a whistleblower who says the major insurance companies have been engaged in a scheme to bilk Medicare out of billions of dollars.

The New York Times story says:  “When Medicare was facing an impossible $13 trillion funding gap, Congress opted for a bold fix: it handed over part of the program to insurance companies, expecting them to provide better care at a lower cost. The new program was named Medicare Advantage… But now a whistleblower…asserts that the big insurance companies have been systematically bilking Medicare Advantage for years, reaping billions of taxpayer dollars from the program by gaming the payment system.”  The Times story goes on to say that Mr. Poehling “described in detail how his company and others like it – in his view – gamed the system: Finance directors like him monitored projects that United Health had designed to make patients looks sicker than they were, by scouring the patients’ health records electronically and finding ways to goose the diagnosis codes. The sicker the patient the more United Health was paid by Medicare Advantage – and the bigger the bonuses people earned…”

When insurance company executives allow their own financial interests to be placed ahead of those of everyone else, including the American taxpayer, something has gone wrong at the heart of the industry. Placing profits and personal bonuses ahead of all other considerations, including honesty, fairness, the health and welfare of policyholders and the tax dollars of all Americans is the act of a company run amok.