Zeke Emanuel weighs in on $200 million jury verdict in favor of deceased patient who was denied proton therapy treatment

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Following a recent jury decision to award the family of a deceased man $200 million in damages after the man was denied insurance coverage for a specific cancer treatment of the lung, the question remains: did the jury err in its decision?

Bill Eskew was battling lung cancer and eventually died after UnitedHealth decided he wouldn’t cover the proton beam therapy treatment he expected to receive. In a recent interview after the jury verdict, an attorney representing his wife said the payor’s denial of treatment caused Eskew unnecessary misery.

“It was difficult for him to swallow food, drink or take his medication for a year until he died,” said Doug Terry.

But bioethicist Ezekiel (Zeke) Emanuel, chair of the Department of Medical Ethics and Health Policy at the University of Pennsylvania, who wrote his opinions on the interest of proton therapy calls into question the jury’s decision.

“It’s almost inevitable that patients with lung cancer will experience some kind of pain, and there’s a lot you can do to control the symptoms, but they’re often difficult to control,” said Emanuel, principal investigator at American Progress. “If we think about how much pain he could have had, he may have had less, but is that worth $200 million over a year? It’s hard to believe.”

After being rejected by the jury, UnitedHealth plans to appeal the lawsuit.

“We are disappointed with the jury’s verdict,” a UnitedHealth representative said in an emailed statement.. “The verdict and the damages awarded do not reflect the facts of the case or the laws that apply here.”

This is not the first case in which a jury favored a patient who was denied proton therapy coverage. In 2018, a jury favored a patient and his family in Cunningham vs. Aetna, a case also judged by Terry. The case resulted in a $25.5 million verdict in favor of the Cunningham family.

“Insurance companies should act in good faith and not for profit,” Terry said.

Eskew was diagnosed with stage four metastatic lung cancer in the summer of 2015. He and his wife Sandy Eskew sought the best possible care for his lung cancer and went to the University of Texas MD Anderson Cancer Center. A team of oncologists determined that the best treatment for Eskew based on the location of his tumor was proton therapy (PBT).

According to Eskew’s attorney, the doctors opted for this treatment because they could deliver the appropriate dose of radiation to reach the tumor cells adjacent to his esophagus and trachea while sparing the radiation near his other organs. Sierra Health & Life Ins. Co., a subsidiary of UnitedHealth, denied Eskew’s claim based on medical policy not disclosed to Eskew or his wife at the time of purchase, Terry said.

Eskew purchased Sierra’s specific insurance plan after being diagnosed, based on the belief that proton therapy would be covered. According to Terry, Eskew’s wife, Sandy, told Sierra’s agent that her husband had lung cancer, wanted MD Anderson to be a participating provider, and asked if PBT was covered. The agent, under Sierra’s direction, gave Sandy the insurance policy and statement of benefits. Sandy found that medically necessary radiation therapy services were covered. PBT was not excluded from coverage. Sandy believed that if MD Anderson determined PBT for Bill was medically necessary, the PBT would be covered, Terry said.

Instead, this policy automatically denies requests for proton therapy lung cancer treatment. Eskew then underwent Intensity modulated radiotherapy and suffered from grade 3 esophagitis, inflammation, blistering and scarring of the esophagus, according to Terry. He died nearly a year after radiation therapy.

“We believe the jury spoke loud and clear with their verdict that Sierra’s conduct was not acceptable and will not be tolerated,” Terry said.

Sierra’s doctor was handling claims for Sierra as an independent contractor at the time of Bill’s denial and was handling claims on a part-time basis in addition to having a full-time medical oncology practice. The doctor who denied Eskew’s claim testified that he was handling 20 to 25 claims a week for Sierra at the time. He also testified that he spent 30 to 60 minutes considering Eskews’ request before denying it, according to Terry. However, the doctor’s billing records showed that he handled 79 claims for Sierra the week he denied Bill’s claim, and he billed Sierra for 16.5 hours for that work. This told the jury he spent an average of 12 minutes per claim, Terry said.

Eskew’s family received $40 million in compensatory damages for the physical, mental and emotional harm caused and $160 million in punitive damages, intended to punish Sierra for its conduct in denying Eskew’s claim and to deter Sierra and other companies from health insurance to engage in similar conduct in the future.

Although Emanuel acknowledged that he was unfamiliar with the details of Eskew’s case, he argued that there was insufficient evidence that proton therapy was worth the cost.

“Unless there is evidence that proton therapy alters longevity or improves quality of life in a well-controlled randomized trial, it is difficult to justify paying two, three or four times the cost of radiation for a hope, a prayer, an affirmation, when it’s not based on evidence,” Emanuel said. “That’s not what medicine should be basing our treatment on. It should be based on randomized controlled trials comparing results of similar patients.

Photo: art4stock, Getty Images

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