Trial Magazine
Verdicts & Settlements: Insurance
Bad Faith Denial of Coverage for Cancer Patient's Proton Beam Therapy
February 2019Orrana Cunningham, 53, was diagnosed as having Stage IV nasopharyngeal carcinoma. She sought treatment out of state at MD Anderson Cancer Center, where providers suggested she undergo proton beam therapy. The treatment, Cunningham learned, would provide the best chance of survival and avoidance of the catastrophic side effects associated with traditional radiation, such as damage to critical structures near her tumor, including her brain stem.
MD Anderson submitted a request for coverage to Aetna Health, Inc., which issued Cunningham’s health policy. Aetna denied Cunningham’s claim for treatment as experimental or investigational. Her appeal was unsuccessful, and an independent review organization upheld the denial of coverage.
Cunningham proceeded with the proton beam therapy using more than $92,000 in borrowed funds. However, after the treatment she developed herpetic encephalitis and brain swelling, which led to a brain stem herniation and her death. She is survived by her husband.
Cunningham’s husband, individually and on behalf of her estate, sued Aetna, alleging breach of the insurance contract and reckless disregard of the duty of good faith and fair dealing. The plaintiffs asserted that the defendant’s reviewing doctors and nurses were medically unqualified to decide Cunningham’s claim, were overworked, and had a financial incentive to increase the insurer’s profits by denying claims. Additionally, the plaintiffs argued that the defendant’s medical directors had not read Cunningham’s insurance contract before denying her claim, relying instead on a clinical policy bulletin that was meant to serve only as a resource and not a replacement for the contract itself.
The jury awarded approximately $25.6 million, including $10 million in punitive damages.
Citation: Cunningham v. Aetna Health, Inc., No. CJ-2015-2826 (Okla. Dist. Ct. Okla. Cnty. Nov. 6, 2018).
Plaintiff counsel: AAJ member Douglas Terry, Edmond, Okla.; and Justin Meek and Thomas Paruolo, both of Oklahoma City.
Plaintiff experts: Stephen Prater, insurance practices, San Jose, Calif.; and Andrew Chang, radiation oncology, Oklahoma City.
