Richard Cole has had a hard time finding a judge to hear his case, if only because they all keep recusing themselves.
The Miami-based personal injury attorney, a prostate cancer survivor, sued his health-care insurance provider in April, accusing it of wrongfully denying him and potentially thousands of other men coverage for a lifesaving prostate cancer treatment. Two of the judges stepped aside because they already knew Cole too well.
And then there was U.S. District Judge Robert N. Scola Jr.
He could relate too well: Scola survived prostate cancer too.
“To deny a patient this treatment, if it is available, is immoral and barbaric,” Scola wrote Monday in a one-page recusal order, making clear which side he was taking.
The remarkably personal legal filing admonished UnitedHealthcare, Cole’s insurance provider, for the very same reasons the 71-year-old attorney decided to sue. The company, the lawsuit argues, has been denying an untold number of men coverage for proton beam radiation therapy for prostate cancer on the basis that it is an “experimental” treatment, though it has been recognized by the U.S. Food and Drug Administration and cancer treatment providers since the 1980s. Scola said he personally knew another man who had been denied coverage by UnitedHealthcare for this specific treatment and had to pay out of pocket. Cole paid tens of thousands, too.
In Scola’s own case, the judge said “top medical experts across the country” recommended the proton beam radiation therapy to him when he was diagnosed with prostate cancer in 2017, although he ultimately opted to have surgery.
“It is undisputed among legitimate medical experts that proton radiation therapy is not experimental and causes much less collateral damage than traditional radiation," Scola wrote. He said in closing: “The Court’s opinions in this matter prevent it from deciding this case fairly and impartially.”
In a statement to The Washington Post, UnitedHealthcare said that the provider “bases its medical policies and coverage decisions — including for proton beam therapy — on the prevailing published clinical and scientific evidence.”
Cole, who has pledged to donate any financial damages he wins from the case to the Miami Cancer Institute, said his health-care insurance nightmare began in the months after he was diagnosed with prostate cancer last April.
At that point, the cancer had already spread to his lymph nodes, meaning surgery wouldn’t be enough to stop it, he said. He consulted with doctors nationwide about what to do next, including the CEO and executive medical director at the Miami Cancer Institute. The consensus was decisive, he said: Proton beam radiation therapy was both less invasive and more effective, Cole said.
But when his doctors submitted a pre-treatment plan to UnitedHealthcare, coverage for the therapy was denied, according to the lawsuit. No other reason was provided beyond the fact that it was considered “experimental," Cole said.
For months, Cole and his doctors fought the insurance company through the appeals process — until Cole, fearing the cancer would spread, decided he couldn’t wait any longer.
“When somebody is diagnosed with cancer, the first thing you have is a fear of dying,” Cole said in an interview with The Post. “I had two parents who had cancer of a different kind. One recovered, fortunately, but the other ultimately didn’t. So you’re naturally very concerned about it. After they kept delaying, at a certain point I said, no — enough. We need to go forward.”
To go forward, he had to pay $85,000 out of pocket for the treatment — which he said he recognizes would likely not be a possibility for many people.
That’s what motivated him to file the class-action lawsuit, he said. The suit estimates that thousands of people may be affected, an unknown number of whom may have had to choose a less effective cancer treatment as a result of UnitedHealthcare’s refusal.
“The vast majority of people," he said, would never be able to pay out of pocket. “While to anybody the money is important, it’s not as important as having people treated properly by their health insurer. I really felt that it was important to ultimately send a message back that you’ve got to treat people properly, which I didn’t feel they did.”
Scola said the same thing happened to “a very close friend” seeking proton beam therapy in 2015. After UnitedHealthcare “refused to pay for his treatment,” Scola wrote, his friend paid $150,000 out of pocket to undergo the therapy at MD Anderson Cancer Center in Houston.
“Only upon the threat of litigation did United Healthcare agree to reimburse him,” Scola wrote.
As The Post reported last year, proton bream radiation therapy as a treatment for prostate cancer has been seen as controversial by some because it is typically more costly than traditional radiation, and data comparing treatment methods is slim. Still, more than 50 proton beam therapy clinics have opened or are planned at cancer treatment centers across the country. The lawsuit estimates about 5,000 prostate cancer patients underwent the treatment last year alone. Medicare, for example, typically covers the therapy.
UnitedHealthcare revised its policy for proton beam radiation therapy on Jan. 1 — just weeks after Cole lost his final appeal for reimbursement, he said. The new policy acknowledges that both traditional radiation and proton beam radiation are “proven and clinically equivalent for treating prostate cancer." Authorizations for the treatment will be determined on a case-by-case basis, the new policy sates.
The lawsuit alleges this is further evidence that the previous policy was “arbitrary," since there had been no major research developments involving the therapy that would have prompted the change.
Cole, now cancer-free, said he believes the previous policy was only about money. Though he represents insurance companies in his private practice, Cole said he does not defend health insurers. But he believes the “disingenuous” behavior of UnitedHealthcare diverged from what is typical among most other insurance companies that he sees.
“I just didn’t think they looked at it in the context of, is this what’s right for Richard Cole?” he said. “Instead, it was just, ‘We just don’t pay for it.’”
Cole’s lawsuit asks a judge to order UnitedHealthcare to reprocess every class member’s past insurance claim that sought proton beam radiation therapy for prostate cancer, this time under the company’s new 2019 policy. It asks that qualifying class members be reimbursed in the unpaid benefits with interest. It also asks a judge to find that UnitedHealthcare violated its fiduciary duty under the federal Employee Retirement Income Security Act, which creates minimum standards for private insurance plans.
Cole’s case was reassigned to a fourth judge on Tuesday. So far, there has been no recusal.
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