Day v. Humana Ins. Co. – Proton Beam Therapy Victory

Day v. Humana Ins. Co., 335 F.R.D. 181 (N.D. Ill. 2020).  This lawsuit, brought by the DeBofsky Law, involves photon beam radiation therapy (PBRT) and was filed as a class action challenging Humana’s refusal to cover such treatment for brain stem cancer.  The defendants, Humana, and the named plaintiff’s employer, OSF HealthCare System, moved to dismiss and strike the class action allegations.  The court denied the motion to dismiss but struck the class action without prejudice to amend.

Humana denied the PBRT treatment for a brain stem cancer as experimental and not medically necessary.  The insurer relied on a “Medical Coverage Policy” for PBRT that asserted policyholders may be eligible for PBRT for certain conditions but would potentially be ineligible for the service for 18 listed conditions.

The named plaintiff underwent PBRT for a brain stem tumor after prior treatment failed to prevent a recurrence.  When the treatment was denied, Day appealed and submitted a letter of medical necessity from her radiation oncologist at M.D. Anderson, who wrote:

Ms. Day’s diagnosis is not routine in nature, as this is a tumor adjacent to her brainstem and optic apparatus. With Proton Therapy we are able to dose-escalate to a higher effective therapeutic dose, while simultaneously sparing all of her critical organs and preserving all essential neurologic functions, neurocognition, and quality of life….PBT is supported by the evidence based peer reviewed literature….PBT is of particular importance given both Ms. Day’s established baseline neurocognitive status and young age, 29 years old.

The treated doctor cited treatment guidelines from the National Comprehensive Cancer Network (the “NCCN”), the American Society of Radiation Oncology, and NRG Oncology, along with comparative data studies; and also pointed out the insured’s age (28) and likelihood of a long life expectancy if she underwent PBRT rather than other treatment. Humana’s consultant denied that PBRT is the accepted standard of medical practice for use with plaintiff’s tumor.

The plaintiff brought two claims – a claim for benefits due under the terms of the plan (ERISA § 502(a)(1)(B)), a claim for breach of fiduciary duty (ERISA § 502(a)(3)) for basing a decision on outdated medical evidence that was inconsistent with the standard of care and seeking an injunction to require Humana to retract its denial based on its policy and re-evaluate all PBRT denials.  Plaintiff also sought an award of attorneys’ fees.

Despite the defendants’ challenge that the denial was reasonable on its face, the court determined that the plaintiff “plausibly pleaded that Humana’s decision to deny coverage for PBRT treatment was arbitrary and capricious.”  The court found the plaintiff pled sufficient facts to establish that PBRT was the standard of care and that the defendant’s rationale failed to address the issues raised by the plaintiff.  The court explained:

For example, [Humana’s doctors] note Plaintiff’s diagnosis and the location of her tumor, but do not substantively address her treating doctors’ contention that her specific medical circumstances, including her young age, make PBRT more appropriate than other treatments. (See id.) Dr. Kumar claims to have reviewed Plaintiff’s clinical case file, MRI reports, and medical history, but he does not actually discuss the contents of those materials. (See Dr. Kumar Report 1-2.) Rather, he simply lists them in the “materials reviewed” section of his report. (See id.) Nor does Dr. Kumar discuss Dr. Woodhouse’s opinion that according to “comparative data studies,” PBRT would increase Plaintiff’s odds of survival and cause fewer side effects. (Compl. ¶¶ 38-39.) Instead, he talks past her, opining that PBRT is considered investigational for the treatment of Plaintiff’s condition because that very use is the subject of at least one ongoing clinical trial. (Id. ¶ 39.) The court recognizes that ERISA does not require plan administrators or its reviewing doctors to “accord special weight to” the judgment of a plaintiff’s treating physicians. Davis, 444 F.3d at 578. And doctors reviewing benefits claims need not “draft lengthy, lawyer-like opinions.” Id. at 579. But by incorporating Humana’s benefits explanations and highlighting the points that went unaddressed, Plaintiff’s Complaint permits a reasonable inference that Humana and its reviewing doctors engaged in “selective readings” of evidence “that are not reasonably consistent with the entire picture.” Holmstrom, 615 F.3d at 777. “This approach is [a] hallmark of an arbitrary and capricious decision.” Id.

The court further found “the Complaint plausibly alleges that Humana considered evidence selectively and arbitrarily declined to credit evidence from Plaintiff’s treating physicians. The court also notes that the Plan does not state that an ongoing clinical trial for a treatment automatically renders it experimental.”  The court added that even “proven treatments might continue to be the subject of testing.”

Moreover, the court rejected the defendant’s argument that its determination was reasonable and unassailable by pointing out: “Plaintiff has alleged specific factual content that plausibly suggests PBRT treatment was not in a testing stage, was generally seen as acceptable medical practice, and was shown in reputable medical literature to be consistently effective.”

Turning to the breach of fiduciary duty claim, the court rejected the defendant’s argument that the claim was duplicative of the claim for benefits.  The court noted that even if it were duplicative, that would not necessarily be grounds for dismissal at the motion to dismiss stage of the litigation.  Moreover, both claims may be pled seeking different forms of relief. Hence, the court elaborated:

The court declines to dismiss this claim at the pleading stage. To begin, the facts alleged in support of each claim appear to be distinct: in her (a)(1)(B) claim, Plaintiff asserts that Humana breached the Plan’s terms by denying her benefits; in her (a)(3) claim, she asserts that Humana breached its fiduciary duties by, among other things, designing a policy that places the insurer’s self-interest ahead of patient care. Moreover, the relief sought is distinct: whereas Plaintiff under (a)(1)(B) seeks payment in the amount of cost she incurred for her PBRT treatment, her (a)(3) claim requests an injunction requiring Humana to retract all of its categorical denials of PBRT coverage, an accounting and disgorgement of all profits made from denial of such claims, and other appropriate equitable relief.

Overruling defendants’ suggestion that the relief sought under 502(a)(3) was inappropriate, the court remarked: “Plaintiff seeks an order directing that Humana retract its categorical denials of PBRT and reevaluate PBRT claims—that is, equitable relief.”  Hence, the court denied that aspect of the motion to dismiss.

However, the court struck the class action allegations without prejudice.  The court found the allegations pled in the complaint failed to establish common questions of law or fact and because the plaintiff also sought to certify a “fail-safe class.”  The court recognized, though, that where a complaint alleges “a defendant’s standardized conduct toward proposed class members, such as generalized policies that affect all class members in the same way,” a class may proceed.  As pled, though, the court observed that “each class member would need to show that Humana misapplied the Plan language to his or her specific medical circumstances.” That would require “consideration of each member’s medical background, age, type of cancer, and stage and malignancy of cancer.”

The court also defined a “fail-safe class” as one that is “defined so that whether a person qualifies as a member depends on whether the person has a valid claim.” The problem with such a class is that “a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.” The court agreed with the defendant that “Plaintiff’s argument is untethered to the class definition, which neither mentions the Policy nor allows for upholding a claim denial on ‘other grounds.’” The court thus dismissed the class allegations without prejudice.

Discussion: This case is illustrative of an issue that has seeped into health insurance litigation.  Every health insurer has now developed policy directives for various conditions that the insurer can rely upon to show their claim denials are “reasonable.”  While, on the one hand, it is commendable that efforts are being made to develop nationally recognized standards of medical care, the problem with such an approach is that medical care is constantly evolving, and yesterday’s experimental treatment is today’s standard of care. Moreover, as the court’s discussion here illustrates, each patient varies by age, diagnosis, and circumstances. The “policies” thus appear to be guided more by cost-savings than good medical practice. A national healthcare system would be helpful, but so long as we have multiple health insurers who operate under a profit-based model, there will always be a motivation to cut costs and deny expensive treatments in order to improve the bottom line.