judge in proton beam therapy class action lawsuit shames UHC

[cesanon]

medcitynews.com/2019/04/wit...

With recusal, judge in proton beam therapy class action lawsuit shames UHC

United Healthcare has been sued by a Florida attorney for denying coverage of proton beam radiation therapy for prostate cancer patients. The judge in the case, simply by recusing, sends a strong message.

By ARUNDHATI PARMAR

In the court of public opinion, health insurance companies rank poorly. And now in a Florida court, the nation’s largest health insurance company — UnitedHealthcare — isn’t faring that well either.

Last week, the founder of a Miami-based law firm filed a class-action lawsuit against the Minnesota insurer alleging that UHC has denied covering proton beam radiation therapy treatment for prostate cancer patients in the past even though the therapy has been proven to be effective. On Monday, the judge assigned to the case issued a rather interesting recusal that appears to buffet the position of the plaintiff in the case. He called the decision to deny proton therapy treatment to patients “immoral and barbaric.”

The plaintiff in the case is Richard Cole, an attorney who is being represented by Colson Hicks Eidson, which filed the lawsuit. The complaint alleges that until Jan. 1, UHC had a policy of blanket denial of coverage for proton beam radiation therapy treatment for prostate cancer patients irrespective of an individual patient’s situation or medical need — this applied to any patient 19 or older. UHC called the treatment experimental and unproven and so excluded it for coverage – the FDA approved protom beam radiation therapy back in 1988.

The complaint also alleges the insurer’s past policy of denial was based not on evidence — given that there are multiple clinical studies to prove the therapy’s efficacy — but because proton beam therapy treatment is more expensive than traditional radiation therapy. It notes that the the reversal of UHC’s policy on the therapy happened without any significant clinical developments between late May 2018 when Cole, the plaintiff’s application for pre-authorization was denied and Jan. 1 when UHC began to cover proton beam therapy treatment for patients 19 and older.

Thus, the lawsuit seeks to retroactively win back reimbursement for Cole and other patients who were denied coverage until UHC’s policy changed.

On Monday, the judge assigned to the case — U.S. District Judge Robert Scola Jr. — announced that he cannot fairly judge the case given that he himself availed of proton beam radiation therapy as a prostate cancer patient.

“It is undisputed among legitimate medical experts that proton radiation therapy is not experimental and causes much less collateral damage than traditional radiation,” the judge wrote in the recusal. “To deny a patient this treatment, if it is available, is immoral and barbaric.”

The recusal also provides a personal example of UHC doing exactly what the plaintiff alleges — deny covering the therapy for a patient who sought it. The judge writes,

Further, a very close friend of the Court was diagnosed with cancer in 2015. He opted to have proton radiation treatment at M.D. Anderson in Houston. His health care provider, United Healthcare, refused to pay for the treatment. Fortunately, he had the resources to pay $150,000 for the treatment and only upon threat of litigation did United Healthcare agree to reimburse him.

Whatever the ultimate outcome is in the case, it’s clear that the judge’s recusal itself delivers a really strong message. When asked to comment on the lawsuit and the recusal, a UHC spokeswoman offered up only this in an email:

UnitedHealthcare bases its medical policies and coverage decisions – including for proton beam therapy – on the prevailing published clinical and scientific evidence.

It goes without saying that the response — more of a non sequitur — didn’t really answer the question raised by the lawsuit or even Judge Scola’s recusal.

The judge originally assigned to the case — U.S. District Judge Federico Moreno — previously recused himself citing his friendship with Cole, the plaintiff, making Scola Jr. the second judge to recuse.

Cole has pledged to donate his portion of any potential proceeds he receives — as an individual in the class action should a favorable verdict be handed down — to the Miami Cancer Institute.

“My hope is that this lawsuit will provide relief to thousands of patients nationwide who are battling prostate cancer and were denied benefits they were rightly entitled to,” Cole stated in a news release last week that accompanied the filing of the lawsuit.

The complaint couldn’t specifically say how many patients were denied coverage but believes it could be in the thousands given UHC provides coverage for many employer-sponsored health plans in the U.S..

[Mrkharn]

I hope the plaintiff wins given that UHC is my insurer along with Medicare in the case that I need treatment for something.

That being said, I opted for cyberknife for my PCa.

Anthem denied it as experimental for GL7 back in 2016. (It would be allowed for GL6).

Since I had one core of 6 and one core of 7 then I appealed and they agreed to give it to me. I sent lots of scientific evidence to back up my request.

Unfortunately it seems to be the trend to wait and see how well cancer respond so that the insurer can deny new treatment.

Mark

[Hidden in reply to Mrkharn]

Wait and see, let pc progress..👎

[cujoe]

Thanks for posting. It is always good to see of the sleazy methods of insurance companies revealed. Before I got on Medicare + supplemental insurance, I got hit by BCBS with a bill for labs (that had always been previously covered) because I had a "high tech scan" on the same day. I contested the claim, even though it was written into the policy. Even got the state insurance commission to review the case.

In the end I had to pay for the scan + the labs out of pocket. No one involved, not the cancer center (Duke), the doctor (Duke), the insurance company (BCBSNC), or the state insurance commission (NC) could give me any reason/rationale for that provision in the policy. In my last conversation with the state agency, I said I imagined it was the result of some cost-benefit analysis done to increase revenues that concluded that most people will be unaware of the provision, so can be nailed for the cost the first time around. (When you think about the number of times that situation likely occurs, it definitely put additional $$$$ in the BCBSNC revenue stream.)

The Duke oncologist said that they have patients who come from out of state and when they need to run labs and scans on the same day, the patient either has to eat the costs of the labs (or scans) or the cost to stay in a hotel + meals for the extra day to avoid same day procedures. An absolute financial catch 22 for the patient - and his provider. Be Well - cujoe

[Hidden in reply to cujoe]

👎

[Hidden]

UHC , that’s my team ?😡

[teamkv]

Thanks for this

[Magnus1964]

Interesting. UHC seems to have it in for Prostate Cancer patients. Back in 2016 they were going to stop paying for expensive Pca drugs, i.e. Zytiga and Xtandi.

[cesanon]

This situation is pretty much enabled and assured by the voting patterns 60+ years old voters, most especially 60+ males.

Maybe this might improve slightly in 2020, though personally I'm dubious about that.

[AlanMeyer]

I'm going to play devil's advocate here and present a case on the other side of this issue. I'm not arguing that UHC should have denied the claim. I don't have a considered opinion on that. But I would like to offer some counter arguments.

The first counter argument is that proton beam therapy is NOT more effective than x-ray therapy. The studies I've seen, and the opinions I heard from two different professors of radiation oncology that I asked, are that protons and photons have exactly the same outcomes on prostate cancer treatment. The result depends only on the dosage and the targeting, not the radiation modality.

The second argument is that it isn't clear to me that proton beam has significantly fewer side effects than modern x-ray treatments. I'm familiar with the physics of the Bragg Peak that enables a proton beam specialist to deliver more energy to the target than to non-cancerous tissue before or behind it. However the main side effects of radiation treatment are in or adjacent to the target area - which is bombarded equally by both kinds of radiation. Furthermore, x-ray brachytherapy delivers virtually NO energy to tissue outside the prostate (probably less than proton beams), and IMRT manages the angles of delivery in such a way that side effects on non-target tissue are pretty small and not usually dangerous.

A third argument is that proton beam therapy has been oversold and overhyped. It is essential for certain eye and brain cancers, especially in children, but I've seen no convincing evidence that it's better for prostate cancer. But all too many men have been convinced by advertising puffery (see the ridiculous claims by the Czech proton center that they cure 98% of all patients) that it's proton beam or death. I saw one man who mortgaged his house to get $75,000 in the early 2000's because he was convinced he would die if he didn't get proton beam. His insurance company offered to pay for brachytherapy or IMRT.

And my fourth and final argument is that proton beam is overpriced. The cost of building the beam emitter is over a $100 million and the investors recruited to fund them can only be paid back if the center oversells the product and overprices it. Hence $150,000 for a treatment that would be $10,000 - $25,000 for many x-ray modalities (see for example: ascopost.com/News/34013 ), though there are centers that manage to get a lot more. Everybody's insurance premiums go up when we require cost ineffective treatments to be paid for by insurance. It's one of the reasons that our medical costs are so much higher than those in other developed countries even though our outcomes are generally worse.

Okay. I'm putting on my suit of armor. Blast away but don't hit me too hard. It's nothing personal :^).

Alan

[cesanon in reply to AlanMeyer]

AlanMeyer

I think those are actually valid arguments.

But I still think that when Insurance companies feel privileged to cut that close to the bone, they need to get back into their lane. They just shouldn't be making broad, non-patient, treatment decisions, based solely on cost.

And institutionally, they are too conflicted to be able to make decisions on anything other than cost.

[j-o-h-n]

Doctor to patient: We've run every test we could think of and the results show your insurance coverage is out of money.

Good Luck, Good Health and Good Humor.

j-o-h-n Wednesday 05/01/2019 8:21 PM DST