Mark Roman | November 17, 2018 | Insurance Companies

In early November, the family of an Oklahoma woman who had cancer received a verdict for more than $25 million against her health insurer, Aetna. The jury found that Aetna acted in bad faith in denying proton beam therapy to her as an “experimental” treatment. Proton beam therapy is a targeted form of radiation treatment which generally has fewer side effects than standard radiation.

The jury’s decision that Aetna acted recklessly in denying treatment to Orrana Cunningham drove its eight-figure verdict. Afterward, jurors said they deliberately came back with big damages to send Aetna a message to change its ways. The verdict appears to be the largest in a bad faith case in Oklahoma history.

The trial centered on the legitimacy of proton beam therapy. Aetna’s medical directors deemed the treatment experimental, but expert witness testimony at the trial showed it was common and well-established in the medical community. Jurors were turned off by the fact that one Aetna medical director admitted that he reviewed 80 cases per day, and spent more time preparing for his trial testimony than he spent on Cunningham’s request for treatment.

Proton beam therapy has been used by cancer physicians for decades and is covered by Medicare. It is also well-established as an effective treatment for patients 21 and younger, and for older patients as well. In light of that, jurors were angered by what they perceived as a “rubber stamp” approach to claim denial by Aetna.

Astonishingly, an Aetna lawyer reportedly approached Cunningham’s husband after the verdict. He congratulated him on the verdict, but then immediately added that the family would lose when Aetna appealed. Cunningham’s husband was stunned, and said it “showed how callous these people are.”

Unfortunately, Cunningham herself never lived to see the verdict in her favor. Her husband mortgaged their home and started a GoFundMe page to get her the treatment Aetna refused to provide. However, she died of a viral infection before the case went to trial.

In personal injury cases we handle, defense attorneys often ask why an injured person does not use their health insurance to keep costs down. Aetna’s behavior in the Cunningham case shows why. Even when health insurance is ostensibly available, many patients face claim denials, high deductibles, and “out of network” providers which effectively makes insurance unavailable. And not all injured people have the time and resources to fight their health insurers as the Cunningham family did with Aetna.

Regardless of how the Cunningham case ultimately turns out, we hope the health insurance industry gets the jury’s message loud and clear. Appeals for necessary, potentially life-saving treatment supported by medical evidence should be granted. The “DENIED” rubber stamp should be put away forever.

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