Proton Beam Therapy: Insurers say “No, no,” but judges and juries say “Yes, yes!”

Earlier this year, a federal judge in Florida described the conduct of UnitedHealthcare as “immoral and barbaric.” The conduct at issue was the insurance company’s denial of coverage for proton beam therapy to treat prostate cancer. Last year, a jury in Oklahoma described the conduct of insurance giant Aetna as “reckless” in its bad faith denials of coverage for proton beam therapy. That denial cost the company $25.5 million. Insurers give a number of different reasons for denying coverage for proton beam therapy, calling it “experimental,” “unproven” or “investigational.” Yet judges and juries are finding a different reason for the denials: the carrier’s desire not to have to pay for it.

What is proton beam therapy, and why don’t insurers like it?

Proton beam therapy is a form of radiation used to treat cancer. Unlike standard radiation, proton beam therapy delivers a higher dose of radiation to a more targeted area. It is therefore sometimes a preferred treatment for attacking hard-to-treat cancers while at the same time causing less damage to surrounding tissues or vital organs.

Proton beam therapy is not cheap. Depending upon the number of treatments, type of cancer and location, the therapy may cost $85,000 or even double that amount. Compared with standard radiation treatments, the costs for proton beam therapy are about 60% higher. Nevertheless, patients who know they can benefit from proton beam therapy but can’t wait for the insurance company to come around are doing everything they can to pay for the treatment out-of-pocket and then go after their insurer after the fact for reimbursement. Of course, not many people can afford this route and may instead tragically succumb to their disease while waiting the months or years it can take to “go through channels” and try to get an insurer to cover this life-saving medical treatment.

Oklahoma jury sends a strong message to Aetna… $25.5 million strong

In what is likely the largest individual bad faith insurance case in Oklahoma history, a jury in 2018 awarded $25.5 million to the family of a cancer patient who died at age 54. Diagnosed with stage 4 nasopharyngeal cancer near the brain stem, her insurer, Aetna, denied her the proton beam therapy that her doctors recommended. In Aetna’s terms, they considered proton beam therapy to be “investigational and experimental,” despite the fact that a number of medical researches have said it should, in fact, be the standard treatment for certain types of cancer. The patient’s family were in the midst of a GoFundMe campaign to raise the money for the treatment when she passed away.

The jury found that Aetna’s medical directors merely rubber-stamped denials without looking specifically at each case, and the verdict they delivered was deliberately meant to get Aetna’s attention and send a strong message about what they termed Aetna’s “reckless” approach to health care.

Florida judge calls UnitedHealthcare “immoral and barbaric” but recuses himself due to his own cancer battle

In a class action lawsuit currently underway in federal court in the Southern District of Florida, the judge assigned to the case recused himself from the case, which is dealing with denials by UnitedHealthcare of proton beam therapy to treat prostate cancer. The judge’s recusal was based on his own personal knowledge and experience as a prostate cancer survivor. “It is undisputed among medical experts,” said the judge, “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.”

UnitedHealthcare has made numerous denials of proton beam therapy for prostate cancer on the grounds the treatment is “experimental and investigational.” On the contrary, Medicare and Medicaid both exclude experimental treatments from coverage but approve proton beam therapy for prostate cancer. The method is used at leading medical facilities around the country, including Loma Linda University Medical Center in southern California and Scripps Health in San Diego.

UnitedHealthcare has since noted that it updated its policies in January of this year to expand the coverage of proton beam therapy for different types of cancers. In particular, the company now says that both proton beam radiation and standard radiation “are proven and considered clinically equivalent for treating prostate cancer.” This does not mean UnitedHealthcare may not still deny proton beam therapy in individual cases and press patients to accept standard radiation instead.

If you are fighting cancer and fighting your insurer at the same time, you don’t have a moment to lose. Contact an experienced insurance bad faith lawyer to explore your options for getting needed treatment sooner rather than later, or not all.