Jury Addresses $ 25.5 Million "Statement" to Aetna to Change Habits

A jury in Oklahoma awarded $ 25.5 million to the family of a cancer patient who was denied coverage by Aetna, jurors claiming that the insurer had acted "recklessly" and that the verdict was supposed to induce Aetna to change her behavior.

According to a court observer, this award would be the most important verdict in a "bad faith" insurance case in Oklahoma history. It could have significant consequences nationwide for a form of cancer treatment called proton beam therapy.

The case concerned the denial of coverage, in 2014, of Orrana Cunningham, with stage 4 nasopharyngeal cancer near her brainstem. Her doctors wanted her to receive a proton beam therapy, a form of targeted radiation that could locate her tumor without risk of blindness or other side effects of standard radiation.

Aetna denied her blanket, calling experimental and experimental therapy.

Orrana and her husband, Ron Cunningham, retired firefighter in Oklahoma City, have been together since 1987. He was determined to do whatever was necessary to get the love of his life, the treatment that she would need. The couple mortgaged the house of their dreams and set up a GoFundMe page to pay the $ 92,082.19 allocated for the therapy her doctors had prescribed at the MD Anderson Cancer Center in Texas.

Orrana died on May 30, 2015 at the age of 54, partly because of a viral infection that reached her brain.

Ron Cunningham said the verdict this week was a justification for the suffering his wife endured. She had filed the original documents to sue Aetna, saying that if her case saved a person's life, it was worth it.

"My wife has started the trial and I am ending the fight," he said. "We made it proud. My wife wanted to make sure it came out. His comment was, "If we could save a person."

"As for the money, I'll give it back to spend one more day with her."

Aetna's attorney, John Shely, said in conclusion that the insurance giant was proud of the three medical directors who had refused coverage, even turning to thank them, sat at the table. first row of the courtroom, according to jurors and other witnesses.

This was a message that displeased the 12 jurors, who concluded that Aetna "recklessly neglected her duty to treat fairly and act in good faith with the Cunninghams".

"I felt just as if Orrana Cunningham had failed every turn," said forewoman Ann Schlotthauer.

She said the verdict "was definitely a message for Aetna. We discussed it during the jury deliberations – that we wanted to make a statement. We wanted to put our point of view and get their attention. "

"Aetna needed to pay"

Schlotthauer stated that it was clear from the expert testimony that proton beam therapy was not at all experimental. She explained that the jurors had been dismissed by a medical director from Aetna, who had admitted to handling 80 cases per day, as well as by the fact that the three medical directors had acknowledged that they had spent more time preparing the case. proceedings in Orrana's medical file.

Schlotthauer stated that it believed Aetna's medical directors had "unreservedly approved" the denials without due diligence. "Nobody was looking at her specific case," she said. "That's where we decided they were obviously out of contract and they should have paid for this treatment. It was medically necessary in his situation.

"J & # 39; hope [the verdict] is causing huge changes, "she said. "I hope this will allow Aetna to re-evaluate how they rate calls and requests."

Juror Ora Dale cried and hugged Cunningham after the trial. She was one of two jurors who thought the cash reward should be well above the $ 25.5 million that was awarded.

"I just wanted to let him know that I was on his side," Dale said. "These medical directors did not exhaust all the measures as they had said. They did not spend enough time on his request. He just kept being refused and refused.

"Aetna had to pay. They were wrong and he deserved everything he asked for.

Cunningham had another meeting in court. Shely, Aetna's senior lawyer, approached him and congratulated him after the verdict before telling him he would lose on appeal.

Cunningham was a firefighter from Oklahoma City when the Alfred P. Murrah building was bombed on April 19, 1995, causing 168 deaths and hundreds injured others during one of the terrorist attacks. the most deadly in American history. The day after the bombing, he was instructed to search the debris of the daycare on the second floor to search for the bodies of children. He said that he would spray Lysol on corpses to prevent the spread of bacteria.

He saw the worst of the worst. But few things would have prepared him for this meeting with Aetna's lawyer in the courtroom. He said he stood there, stunned, trying to catch what he had just heard.

"It showed how insensitive these people are," he said.

Shely did not respond to a request for comment.

Aetna, the third largest insurer in the country, declined to comment on the meeting but claimed that he had acted appropriately by refusing coverage in this case, saying that there was a "lack of clinical data" in support of proton therapy in the treatment of nasopharyngeal tumors ".

"Although we have no comment on the decision, the motivations of the jurors or any appeal, we want to clarify that the appropriate steps of the health plan were followed in this case," Aetna said in a written statement. . "As our medical officer noted at the beginning of the year, it is never easy to tell a person or a family that a treatment or procedure is not approved – it's the most hard to do.

"However, our guiding principles will continue to be proven effectiveness and member safety, as determined by rigorous scientific studies."

Doug Terry, the Cunningham's lead counsel, proposed a different approach.

"We think this case has lifted the curtain on what happens in a health insurance company when claims are denied," said Terry. "The verdict of the jury has delivered the message that the public will not defend insurance companies, arguing the benefits before the insured."

Defense lawyer: Aetna did "nothing wrong"

It is not uncommon for policyholders to refuse proton beam treatment in people with cancer, despite the recommendations of their treating physician. Many radiation oncologists express frustration with refusals. There are websites offering tips and recommendations on how to convince insurance companies to pay for proton therapy coverage.

Other cancer patients often turn to sites such as GoFundMe to raise money for their treatment. Some insurers end up agreeing to cover the treatment of adult patients after a lengthy recourse process.

Daniel E. Smith, executive director of the Alliance for Proton Therapy Access, applauded the verdict and called on the insurance commissioners of the 50 US states to ensure that the treatment is now covered by insurance companies. insurance when treating physicians feel that it is the best treatment available. for their patients.

"We congratulate Ron Cunningham for defending Aetna and the jury for recognizing and holding Aetna responsible for his failed system," Smith said in a statement. "We found a similar betrayal in the industry, where insurers use outdated information and medical staff unfamiliar with proton therapy to finally deny four out of ten patients seeking treatment. It is high time to hold insurers to account. "

Some jurors said that one of the most convincing experts was the radiation oncologist Andrew L. Chang, who had explained why proton beam therapy was the best treatment for Orrana Cunningham. He was not involved in his care, but his lawyers had called him as an independent expert.

"What I've tried to show the jury, is that proton therapy is not a new experimental technique, as Aetna claims," ​​Chang said. "Proton therapy has been a well-established treatment for cancer for decades. … No one in the oncology community considers proton therapy as an experimental therapy for cancer treatment. "

He said he told the jurors that Medicare covered proton therapy and that insurance companies often covered him for a range of cancers in pediatric patients, usually under the age of 21 years.

"One thing we have emphasized is that even though Aetna and these other insurance companies like to say that proton therapy is experimental, they always warn that it is not experimental for them. pediatric patients, "said Chang. "We pointed out that Medicare pays for 65 years or more. So, what about 22 to 64 years old who make proton therapy an experimental experiment? There is no good answer to that. the insurance companies call it that because they decided to consider it as such. "

Two leading cancer specialists, not affiliated with the trial, told CNN they agreed with Chang's assessment.

According to Chang, the tumor was right next to her brainstem and optic nerve, and she had grown to the base of her skull. He said he told the jurors that the standard radiation could have been used, as Aetna wanted, but that "the risks were serious".

"She would become blind. She would lose a significant portion of her memory on the left side of her brain and still would not have a very good chance of healing, "Chang said. "For his particular tumor, [proton therapy] was extremely valuable. "

Before Orrana's death, he said, tests showed the tumor was shrinking and the treatment was working.

Aetna's lawyer, Shely, told the jury that there was "a case" of misplaced accusations by Mr. Cunningham and his colleagues. lawyers, "according to the official transcript of the trial.

"Aetna has every confidence in your ability to hear this witness's evidence and then compare it to the opening statement you just heard," Shely said in his opening statement. "In short, the evidence you will see and hear will convince you that Aetna has done nothing wrong, nothing."

After reviewing the evidence, the jury actually criticized Aetna's handling of the case. He voted Monday to award $ 15.5 million in damages for emotional distress and Tuesday for $ 10 million in punitive damages.

Kent McGuire, an Oklahoma attorney specializing in bodily injury who attended some parts of the lawsuit, described the verdict as verdict of bad faith murder for an individual case in the history of ## 147 ## 39; Oklahoma. "It was certainly a stunning verdict to give so much money, and it was also a message," he said.

Ron Cunningham said his wife would be satisfied with the verdict.

She comforted him on hard days – whether in the months following the 1995 bombing or after he found a child seriously injured in a house fire. He would come home, put his head on his lap and tell him everything he thought.

"She was a rock for me, especially through my bad times," he said.

The last two weeks at the trial, he said, were particularly difficult because they recalled many memories. From her own battle with cancer in 1998, when she stayed by her side. To wash the body while it was weakened from cancer. To simply miss the girl who stole her heart four decades ago.

Orrana was known to take in stray animals. Cats, dogs, you call him. Ron would tell him that he is the greatest wanderer she's ever taken. He laughs while remembering that moment.

He then talked about the three medical directors of Aetna; he said everyone testified that he "would not change anything that he did".

When the jury said that Aetna was "recklessly neglecting" Orrana's cause, said Ron Cunningham, he finally realized that justice was done.

"When they said that, it was like," I think we made it proud, "he said.