“To deny a patient this treatment, if it is available, is immoral and barbaric,” wrote U.S. District Judge Robert Scola. (Photo: David Handschuh/NYLJ, ALM)
A federal judge who survived prostate cancer has stepped down from a putative class action lawsuit over a health insurance company's “immoral and barbaric” denial of a radiation treatment.
U.S. District Judge Robert Scola on Monday recused himself from Richard Cole v. United Healthcare Insurance Co. in the Southern District of Florida — a case in which prominent Miami litigator and Cole, Scott & Kissane managing partner Richard Cole is the named plaintiff.
The judge wrote that his own life-saving experience with the treatment at the heart of the lawsuit—proton radiation, which United Healthcare Co. does not cover—plus a friend's six-figure medical bills for cancer care prevented him “from deciding this case fairly and impartially.”
Scola wrote that his friend “fortunately … had the resources to pay $150,000 for the treatment,” but that United Healthcare agreed to reimburse him “only upon threat of litigation.”
“To deny a patient this treatment, if it is available, is immoral and barbaric,” wrote Scola, who did not respond to requests for comment by press time.
Read the order:
Cole, the plaintiff in the case, helps lead Florida's largest personal injury law firm. He was diagnosed with prostate cancer in April 2018. He filed a putative class action complaint against United Healthcare on April 3 after the company refused to cover proton beam radiation therapy used to reduce tumors.
United Healthcare has said it declined coverage because the therapy is experimental and unproven.
Spokeswoman Maria Gordon Shydlo said Monday the company “bases its medical policies and coverage decisions—including for proton beam therapy—on the prevailing published clinical and scientific evidence.”
The company responded to a story by CNN in August 2018 that there is “no credible evidence that proton beam therapy is safer or more effective than the proven and covered treatments that are the standard of care for cervical cancer.”
But Cole's suit suggests otherwise and alleges the company has maintained a uniform policy of denying coverage for proton therapy—a move that Cole says has cost him about $85,000 out of pocket. It also alleges the treatment is well-accepted in the medical community because it “minimizes collateral damage to healthy tissue around the tumor.”
“The claim is for breach of fiduciary duty, and we're alleging that United Healthcare did not act solely in the interest of [Cole],” said plaintiffs counsel Stephanie Casey, partner at Colson Hicks Eidson in Coral Gables. ”There's nothing experimental or investigational about proton beam radiation therapy for the treatment of prostate cancer.”
'Cancer-free'
Cole said he repeatedly challenged United, but the insurer denied him at every turn and at one point used an expert who “wasn't even an oncologist” to justify its coverage decision.
“I don't think they took my condition or treatment as seriously as they should have,” he said Monday.
With his claims rejected, Cole footed the medical bills and underwent treatment at the Miami Cancer Institute.
“I'm glad to report that I finished the treatment in about October of last year,” he said. “I have gone back twice now for additional studies, and I am cancer-free.”
The suit names as potential class members any United Healthcare policy holders denied similar coverage. It aims to have the insurer reprocess all claims nationwide for proton beam radiation therapy to treat prostate cancer, and make decisions on a case-by-case basis, instead of issuing blanket denials.
Cole said Monday he would donate any award from the case to the Miami Cancer Institute, where he underwent treatment.
The case is not the first time a South Florida lawyer has filed suit against an insurance company over treatment.
In 2017, after Blue Cross and Blue Shield of Florida Inc. denied his wife's claim, Coral Springs attorney Mitchel Chusid filed a class action lawsuit to compel the company to cover Zejula, a drug manufactured to treat relapsed ovarian cancer patients.
“We were able to get Blue Cross and Blue Shield to approve Zejula [for coverage],” Chusid said. “I think it's despicable that these insurance companies have the power to play God and control medication that could save people's lives.”
Now, a new attorney-piloted suit is in the spotlight.
And the federal jurist who stepped down became the second judge to recuse himself from the case. Scola's recusal followed one by U.S. District Judge Federico Moreno, who stepped down from the litigation because of his friendship with the plaintiff.
The case is now assigned to U.S. District Judge Ursula Ungaro.
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Zach Schlein
Zach Schlein is a writer based in Miami. Originally from Montville, New Jersey, he holds a B.A. in political science from the University of Florida and is the litigation reporter for Daily Business Review. He can be reached at his email address, [email protected]
