A jury in a state court in Oklahoma City has awarded a $26 million verdict to the plaintiff in a case involving denial of coverage for proton beam therapy for squamous carcinoma of the throat.

The jury awarded the damages, in the District Court for Oklahoma County, in connection with a finding that the insurer had recklessly disregarded its duty to deal fairly and in good faith with the Cunninghams, according to lawyers for the plaintiffs.

The plaintiffs in the case are Ron Cunningham and the estate of Ron Cunningham's wife, Orrana Cunningham. Orrana Cunningham died in 2015.

In 2014, Cunningham, who was a firefighter, and his wife had health coverage from a unit of Aetna Inc., provided through the Oklahoma City Firefighters Health and Welfare Trust VEBA. The plan did not cover experimental treatments.

In November 2014, a doctor told Orrana Cunningham that she had throat cancer. The doctor recommended that the cancer be treated with proton beam therapy.

Aetna denied the claim in December 2014, contending that, for purposes of treating squamous carcinoma of the throat, proton beam therapy was still an experimental treatment.

Cunningham filed an appeal.

Aetna denied Cunningham's first appeal in January 2015. IPRO, an outside review organization, denied Cunningham's claim in February 2015. Aetna issued its own final coverage denial in February 2015.

The Cunninghams mortgaged their home to come up with the $90,000 needed to pay for proton beam therapy out of pocket.

The Cunninghams filed a lawsuit against Aetna in May 2015.

The Employee Retirement Income Security Act of 1974 puts tight restrictions on the damages plaintiffs can get in lawsuits against benefit plans governed by ERISA. Because the Oklahoma City firefighters' plan was a government employer plan, not a plan provided by a commercial employer, the plan was not subject to ERISA.

Doug Terry, the Cunninghams' attorney, said in a statement about the jury verdict that he presented evidence showing that Aetna doctors spent just minutes reviewing Orrana Cunningham's case.

Proton beam therapy was critically necessary for Orrana Cunningham's condition, and that type of therapy was covered by Medicare, Terry said.

Aetna said in a statement that it has “no comment on the ruling, juror motives, or a potential appeal.”

“We do want to make it clear that the proper steps under the health plan were followed in this instance,” Aetna said.

Aetna said that its plans do cover intensity-modulated radiation therapy for head and neck cancers.

“The Cunningham family instead chose to pursue proton beam therapy, which is considered experimental and investigational,' Aetna said. “Based on the lack of clinical data supporting proton therapy for treating nasopharyngeal tumors, the request was denied.

”The denial was upheld through two levels of internal appeal, with the second conducted by an Aetna-employed internist trained in medical oncology who previously treated head and neck cancers. The Cunninghams next sought external review, which was arranged by the state of Oklahoma, and the denial was once again upheld by an independent radiation oncologist.”

During the proceedings leading up to the trial, lawyers for Aetna and the Cunninghams disagreed about whether Aetna's lawyers should get to present evidence about how an oncologist at IPRO, the organization that handled Orrana Cunningham's external review, saw use of proton beam therapy for cancer of the nose and threat.

The judge decided against letting Aetna's lawyers present information about the IPRO determination, according to Aetna.

Instant Insights /

$26M awarded in health insurance dispute over 'experimental' treatment

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