Prolow v. Aetna Life Ins. Co., No. 20-80545-CIV-MARRA, 2022 WL 263165 (S.D. Fla. Jan. 27, 2022) (Judge Kenneth A. Marra).
 
This week’s notable decision represents a significant victory – one of the first of its kind – in emerging litigation challenging denials of coverage for Proton Bean Radiation Therapy for cancer patients. Tim Rozelle of Kantor & Kantor has been at the forefront of this effort and he and my colleagues Anna Martin and Elizabeth Green provided ERISA consulting for the attorneys from Colson Hicks Eidson and Kozyak Tropin & Throckmorton who represent Plaintiffs Sharon Prolow and Mark Lemmerman in this matter.
 
Ms. Prolow and Mr. Lemmerman are cancer patients who are participants in ERISA healthcare plans insured by defendant Aetna Life Insurance Co. They brought this case both as one for individual benefits under their plans and as a putative class action alleging that Aetna wrongfully denied them and other similarly situated plan participants coverage for Proton Beam Radiation Therapy.
 
In this type of radiation therapy, small protons are deposited on a targeted area of the tumor with no radiation going beyond that point onto healthy tissue. As Mr. Lemmerman’s treating oncologist put it, “radiation is a known toxin and there is no benefit whatsoever to depositing radiation in tissue uninvolved with cancer.” Given that Proton Beam Radiation Therapy avoids this problem by more precisely targeting the radiation, it is recommended and used to treat tumors located near vital organs. The United States Food and Drug Administration approved the treatment in 1988. In contrast to traditional radiation therapy, patients receiving Proton Beam Radiation Therapy can “tolerate higher total doses of radiotherapy,” and also suffer from fewer heart-related and other side effects.
 
Despite the treatment’s great advantages and long standing FDA approval, Aetna considers Proton Beam Radiation Therapy “experimental and investigational” for the treatments of most cancers, including breast cancer, from which Ms. Prolow suffers, and only considers it to be a “medically necessary” treatment for children under 21 with tumors of the brain, spine, and eye. With regard to prostate cancer, from which Mr. Lemmerman suffers, Aetna stated in its denial letter that Proton Beam Radiation Therapy “not medically necessary … because it has not been proven to be more effective than other radiotherapy modalities,” even more frankly noting, “it is not considered medically necessary per plan language because it is more costly compared to (traditional radiation therapy).”
 
Before the court was plaintiffs’ motion for partial summary judgment. Plaintiffs argued that a de novo standard of review was applicable, because the plans do not confer discretionary decision making authority to Aetna. In addition, plaintiffs argued that under either de novo or arbitrary and capricious review, the conclusion should be the same: Aetna’s denials of their claims were unreasonable and not supported by substantial evidence. Aetna also moved for summary judgment seeking a determination that the deferential arbitrary and capricious review standard applies, and that, under this standard, the denials were reasonable and supported by evidence in the administrative record. The court granted plaintiffs’ summary judgment motion and denied Aetna’s.
 
First, the court found the benefit denials de novo wrong. The court found Aetna acted improperly in relying on its own guidelines instead of applying the plan’s simple requirement that coverage be “medically necessary.” As to whether Proton Beam therapy should be considered medically necessary, the court wrote, “there is no meaningful dispute that recommendations of Drs. Fagundes and Gasoriek [plaintiffs’ treating physicians] reflected prudent and reasonable clinical judgments which were consistent with ‘generally accepted standards of medical practice’ as that concept is defined in both Plans.” Limiting its consideration to the rationale offered by Aetna in the denial letters, the court held in Mr. Lemmerman’s case that Aetna’s reliance on “superior efficacy” over “medically necessity” was de novo wrong. In Ms. Prolow’s case, the court held that Aetna could not include additional reasons to deny her coverage beyond the reason given in the initial denial letter, which simply stated that “clinical studies have not proven that the procedure is effective for treatment of member’s condition.” In fact, studies, including those provided by Ms. Prolow’s oncologist during the internal appeals process, establish that Proton Beam Radiation Therapy is effective for the treatment of breast cancer. Therefore, Ms. Prolow’s denial was also found to be de novo wrong.
 
Under the somewhat counterintuitive method mandated by the Eleventh Circuit, the court then addressed the applicable standard of review, an issue that turned on whether the governing plan documents gave Aetna discretionary decision making authority. The court first determined that administrative service agreements between the plans and Aetna did not qualify as plan documents for purposes of the analysis because these documents were neither intended to govern participant rights nor were they available to plan participants. The court then found that the actual plan documents did not grant discretion to Aetna, rejecting Aetna’s argument that the mere conferral of decision making authority was enough to warrant deferential review under Firestone. The court therefore concluded that de novo review was warranted and, having already determined that the denials were de novo wrong, ordered that damages be paid to the two named plaintiffs and the case proceed to the class certification stage and trial on the remaining issues.
 
An excellent decision to start the year of the tiger off with a roar. Continue Reading Year of the Tiger Off to a Roar With a Favorable Decision for Cancer Patients