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
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.