Breast cancer is the most common cancer diagnosed among women in the United States and is the second leading cause of death among women after lung cancer. On average, every 2 minutes a woman is diagnosed with breast cancer in the United States.
On August 23, 2021 Kantor & Kantor, LLP filed a complaint against Blue Shield of California in the Superior Court for the State of California, County of Los Angeles alleging Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, and violation of California Civil Code Section 3428.
After a routine mammogram in 2013, and a subsequent biopsy, Kantor & Kantor’s client, a 59-year old woman, was advised her risk of developing breast cancer was higher than the general population based on the presence of the papillomatous tissue. Upon being advised that she would be a good candidate for one stage breast reconstruction, plaintiff underwent a bilateral mastectomy with bilateral breast reconstruction in February of 2014.
In 2019 the plaintiff contacted her surgeon reporting chronic pain over the chest wall and into her back, despite physical therapy. Plaintiff reported that the pain had gotten consistently worse over a few years and was limiting her activity and causing daily pain.
Glioblastoma, also known as glioblastoma multiforme, is an aggressive type of cancer that can occur in the brain or spinal cord. Glioblastoma can occur at any age but tends to occur more often in older adults. Many glioblastoma symptoms develop slowly and get worse over time. Common symptoms may include:
- Loss of appetite
Weissman v. United Healthcare Ins. Co., et al., 19-cv-10580, (D. Mass. Mar. 8, 2021) (Judge Allison D. Burroughs). A putative class of former patients, who were denied life-saving, quality-of-life maintaining proton therapy cancer treatment, brought a putative class action alleging that UnitedHealthcare and the lead putative class plaintiffs’ employer-based health plans breached their fiduciary duties by wrongfully denying medically necessary proton therapy cancer treatment. Lead class plaintiff, Kate Weissman, and her family were able to come up with over $125,000 to privately pay for medically necessary proton therapy treatment to treat her cervical cancer diagnosis after UHC denied her treatment in 2016. Kate, along with other proton therapy patients—Zachary Rizzuto and Richard Cole—brought this putative class to vindicate their rights under ERISA and for potentially countless others challenging UnitedHealthcare’s application of narrowly-restrictive, flawed, out-of-date internal coverage guidelines to wrongfully deny claims for proton therapy.
On March 8, 2021, the Court denied in full UnitedHealthcare’s motion to dismiss the putative class’ (1) claims for denial of benefits and (2) claims for breaches of fiduciary duty. The Court concluded that Plaintiffs had plausibly alleged that Defendants acted arbitrarily and capriciously in denying their claims for proton therapy. Order, p. 17. Above and beyond this determination by the Court, Judge Burroughs also made clear that “[n]otwithstanding Defendants’ arguments to the contrary, Plaintiffs have alleged more than just that their requests for pre-authorization for PBRT were arbitrarily and capriciously denied. Rather, they have alleged that UnitedHealthcare has developed and applied the PBRT Policy [UnitedHealthcare’s separate coverage policy] to broadly deny coverage for PBRT, even though it is safe and effective, because it is more expensive than IMRT. . . If these allegations are borne out, § 1132(a)(1)(B)’s remedy of repayment of benefits may turn out to be inadequate, and it would therefore be premature to foreclose the possibility of equitable relief, including an accounting and disgorgement [of UnitedHealthcare’s profits from wrongfully denying PBRT claims].” Order, p. 19 (citations omitted).
Finally, the Court also concluded that “even if Plaintiffs can ultimately prove only that UnitedHealthcare breached its fiduciary duty by impermissibly denying their benefits, it is possible that relief under § 1132(a)(1)(B) would still be insufficient. In other words, it is conceivable that even past due benefits, prejudgment interest, and attorneys’ fees may not put Plaintiffs in the position they would have been in but for UnitedHealthcare’s alleged misconduct.” Order, p. 20.
On average, every 2 minutes a woman is diagnosed with breast cancer in the United States.
- In 2020, an estimated 276,480 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 48,530 new cases of non-invasive (in situ) breast cancer.
- 64% of breast cancer cases are diagnosed at a localized stage (there is no sign that the cancer has spread outside of the breast), for which the 5-year survival rate is 99%.
As we continue to learn about efforts to challenge proton therapy denials by groups such as the Proton Therapy Law Coalition, the fundamental question becomes: Will the insurers actually get the message and change their ways? A recent article suggests that even when a jury awards a large punitive damages figure against a health insurer, the carrier is likely not truly getting the message.
In November 2018, an Oklahoma jury returned a $25.5 million verdict against Aetna for improperly denying coverage for proton beam therapy, a treatment the company considered experimental. In the largest verdict for bad faith in U.S. history, the jury found that Aetna “recklessly disregarded its duty to deal fairly and act in good faith” and awarded punitive damages. During the course of deliberations, the jury specifically discussed “sending a message” to Aetna and “making a statement” so Aetna would reevaluate how it handles appeals and requests for coverage.
However, many large insurance companies, if state allows them to, carry their own liability insurance for just this occasion. It appears that about 20 states do not allow insurers to carry such liability coverage. But insurers are now turning to products sold by offshore insurers beyond the reach of state regulators. In other words, a lot of insurers are not directly paying for the punitive damages awarded against them. This undermines the importance and impact of large jury verdicts on effectuating changed insurer practices.
According to the Centers for Disease Control and Prevention (“CDC”), breast cancer is the second most common cancer among women in the United States.
- In 2019, an estimated 268,600 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 62,930 new cases of non-invasive (in situ) breast cancer.
- Men also get breast cancer, but it is not very common. Less than 1% of breast cancers occur in men.
The Women’s Health and Cancer Rights Act of 1998 (WHCRA) was signed into law on October 21, 1998. The WHCRA provides protections for individuals who elect breast reconstruction after a mastectomy. The WHCRA covers women who undergo a mastectomy for any medical reason, not just to treat breast cancer.
Under WHCRA, if your group health plan covers mastectomies, the plan must provide coverage for certain services relating to the mastectomy. However, if your coverage is provided by a “church plan” or “governmental plan”, you will need to check with your plan administrator as certain plans may not be subject to this law.
WHRCA rights apply to individual coverage as well and are generally within the jurisdiction of the state insurance department where you live.
Attend our October 2 Webinar About Insurance Coverage
You have had or are considering explant surgery. We understand the physical and emotional pains that made you decide on the procedure. We also understand that thinking about insurance coverage should be the farthest thing from your mind.
We have spoken with so many women about their troubles getting insurance coverage for these explants, that we thought it may help to put together some ideas, facts and resources that may resolve at least one part of these ordeals.
On August 16, 2019 a nationwide class action lawsuit was filed in the U.S. District Court for the District of New Jersey against the medical device manufacturer Allergan to protect women with Allergan’s textured breast implants from the increased risk of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL), which has now been associated with Allergan’s BIOCELL textured breast implants. The case is Jane Doe I, et al. v. Allergan, Inc., et al., No. 2:19-cv-16784 (D.N.J.).
In July, The United States Food and Drug Administration (FDA) requested that Allergan issue a recall of its BIOCELL textured breast implants and tissue expanders, and Allergan agreed and is removing these products from the global market.
The FDA requested that Allergan recall all of its BIOCELL textured breast implants and tissue expanders based on newly submitted Medical Device Reports (MDRs) reporting worldwide cases of BIA-ALCL and BIA-ALCL-related deaths associated with these implants. The FDA’s “analysis was attributed to a new worldwide reported total of 573 unique BIA-ALCL cases including 33 patient deaths. Of the 573 cases of BIA-ALCL, 481 are reported to have Allergan breast implants at the time of diagnosis. In addition, 12 of 13 deaths occurring in patients with BIA-ALCL where the manufacturer was known occurred in patients implanted with an Allergan breast implant at the time of their BIA-ALCL diagnosis. The manufacturer and/or texture is unknown for the remaining 20 reported deaths from BIA-ALCL.”