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..

Photo: zimmytws, Getty Images

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