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

CNN – Oklahoma jury awards $ 25.5 million to family of cancer patient not covered by Aetna, jurors claim insurer acted "recklessly" and that the verdict was supposed to induce Aetna to change her way.

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

The case concerned the denial of coverage in 2014 of Orrana Cunningham, suffering from 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.

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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 their dream house and create a GoFundMe page to help you pay $ 92,082.19 to get the therapy his 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 started the case and I'm ending the fight," he said. "We made her proud, my wife wanted to make sure everything was aired, and her comment was" if we could save a person. "

"As for the money, I would make it all 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.

It was a message that did not please the 12 jurors, who found that Aetna "recklessly neglected her duty to treat fairly and act in good faith with the Cunninghams".

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

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

& # 39; Aetna had to pay & # 39;

Schlotthauer stated that it was clear from the expert testimony that proton beam therapy was not at all experimental. She said the jurors had been dismissed by a medical director of Aetna who had admitted to handling 80 cases a day and the fact that the three medical directors had admitted to spending more time preparing for the trial than for the record Orana medical.

Schlotthauer stated that she thought that Aetna's medical directors "endorsed" the denials without due diligence. "Nobody was looking at her specific case," she said. "That's where we decided it was obvious they were out of contract and would have had to pay for this treatment. It was medically necessary in his situation.

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

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Juror Ora Dale cried and hugged Cunningham after the trial. She was one of two jurors who thought that the monetary award should have been well above the $ 25.5 million that had been paid.

"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 her application, she was just refused and refused.

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

Cunningham had another meeting in court. He said Shely, Aetna's chief counsel, had approached him and congratulated him after the verdict, before telling him that 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 had seen the worst of the worst. But nothing could have prepared him for this meeting with Aetna 's lawyer in the courtroom. He said he was standing, stunned, trying to catch what he had just heard.

"It shows 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 supporting proton therapy in the treatment of nasopharyngeal tumors ".

"Although we have no comment on the decision, the motives of the jurors or any appeal, we want to clarify that the appropriate steps under the health plan were followed in this case," Aetna said in a statement. a written declaration. "As our Chief Medical Officer pointed out earlier this year, it's never easy to tell a person or a family that a treatment or procedure is not approved – it's the hardest thing 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 helped lift the curtain on what is happening in a health insurance company when claims are denied," Terry said. "The verdict of the jury delivered the message that the public will not represent the insurance companies, putting the profits ahead of the insured."

Defense attorney: Aetna has nothing "done 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 standing up to Aetna, as well as the jury for recognizing and holding Aetna accountable for his failing system," Smith said in a statement. "We are seeing a trend similar to betrayal across the industry, where insurers are using outdated information and medical staff unfamiliar with proton therapy to ultimately deny treatment to four out of ten patients. to hold insurers accountable. "

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 explain to 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, and no one in the oncology community views proton therapy as an experimental treatment for cancer."

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 while Aetna and these other insurance companies like to say that proton therapy is experimental, they have always warned that it is not experimental for pediatric patients. "said Chang. "We pointed out that Medicare was paying for people over the age of 65. So, what makes proton therapy experimental between ages 22 and 64?" There is no good answer to that. The insurance companies call it so because they decided to consider it as such. "

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

In the case of Orrana, Chang said, 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 the testimony of this witness, and then to compare it later to the opening statement you just heard," Shely said in his opening statement. "In short, the evidence that 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 disturbances 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. "Awarding such an amount was certainly a stunning verdict, 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 – be it in the months following the 1995 bombing or after he had found a child badly injured in the fire of a home. He had gone home, put his head on his lap and told him everything.

"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 "carelessly disregarded" Orrana's case, said Ron Cunningham, he had finally felt justice.

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