Defense attorney: Aetna did 'nothing wrong'
It is not uncommon for people with cancer to be denied proton beam therapy by insurers, despite the recommendations of their treating physicians. Many radiation oncologists express frustrations about the denials, and websites exist offering tips and recommendations on how to try to get insurance companies to pay for coverage of proton therapy.
Other cancer patients often turn to sites like GoFundMe to raise money for their treatment. Some insurers eventually agree to cover therapy for adult patients after a lengthy appeals process. Ron Cunningham said that his wife was his "rock" and that the verdict was justice.
Daniel E. Smith, executive director of the Alliance for Proton Therapy Access, applauded the verdict and called on insurance commissioners in all 50 states to make sure the treatment will now be covered by insurance companies when treating doctors believe that it is the best available treatment for their patients.
"We applaud Ron Cunningham for standing up to Aetna, and the jury for recognizing and holding Aetna to account for their broken system," Smith said in a statement. "We've seen a similar pattern of betrayal across the industry, where insurers use outdated information and medical staff with little knowledge of proton therapy to ultimately deny as many as four in 10 patients seeking the treatment. “It's past time to hold insurers accountable."
Some jurors said that one of the most convincing experts was radiation oncologist Dr. Andrew L. Chang, who explained why proton beam therapy was the best treatment for Orrana Cunningham. He was not involved in her care but was called as an independent expert by her attorneys.
"The thing I tried to illustrate to the jury is that proton therapy is not a new, experimental technique, like Aetna wants to claim," Chang said. "Proton therapy is a well-established treatment for cancer and has been for decades. ... Nobody in the oncology community considers proton therapy experimental for the treatment of cancer."
He said he told jurors that Medicare covers proton treatment and that insurance companies often cover it for an array of cancers for pediatric patients, typically up to the age of 21.
"One thing we pointed out is that as much as Aetna and these other insurance companies like to say proton therapy is experimental, they always put a caveat in there that it's not experimental for pediatric patients," Chang said. "We pointed out Medicare pays for it for 65 years or older. So, what is it about 22-year-olds to 64-year-olds that makes proton therapy experimental? There is no good answer for that; insurance companies call it that because they decided to deem it as such."
Two top cancer specialists, not affiliated with the trial, told CNN they agreed with Chang's assessment.
In Orrana's case, Chang said, the tumor was right next to her brain stem and optic nerve, and it had been growing up toward the base of her skull. He said he told jurors that standard radiation could've been used, as Aetna wanted, but the "risks were severe."
"She would go blind. She would lose a significant portion of her memory on the left side of her brain and still not have a very good chance at a cure," Chang said. "For her particular tumor, [proton therapy] was extremely valuable."
Before Orrana died, he said, scans showed that the tumor was shrinking and the treatment was working. Aetna attorney Shely told jurors that this was a case "of misplaced blame by Mr. Cunningham and his lawyers," according to the official court transcript.
"Aetna has full confidence in your ability to hear the evidence from that witness stand and then later compare it to the opening statement you just heard," Shely said during his opening statement. "In short, the evidence that you will see and hear will convince you that Aetna has done nothing wrong, nothing."
After considering the evidence, the jury did, in fact, find fault with Aetna's handling of the case, voting on Monday to award $15.5 million in emotional distress damages and on Tuesday tacking on $10 million in punitive damages.
Kent McGuire, a personal injury attorney in Oklahoma who watched parts of the trial, called the verdict the biggest bad faith insurance verdict for an individual case in Oklahoma history. "It was certainly a stunning verdict to award that much money, and it was a message, too," he said.
Ron Cunningham said his wife would be pleased with the verdict.
She used to comfort him on hard days -- whether it was in the months after the 1995 bombing or after he'd find a child badly injured in a house fire. He'd come home, place his head in her lap and tell her everything on his mind.
"She was a rock for me, especially through my bad times," he said.
The past two weeks at trial, he said, were especially hard because it brought back so many memories. Of his own battle with cancer in 1998, when she stuck by his side. Of washing her body as she weakened from cancer. Of simply missing the gal who stole his heart four decades ago.
Orrana was known to take in stray animals. Cats, dogs, you name it. Ron would tell her he was the biggest stray she ever took in. He laughed while recalling that moment.
He then talked about the three Aetna medical directors; he said each testified that "they wouldn't change anything they did."
When the jury said Aetna "recklessly disregarded" Orrana's case, Ron Cunningham said, he finally felt justice. "When they said that, it was like, 'I think we did her proud,' " he said.