Westlaw News

IN BRIEF: UnitedHealthcare can’t zap cancer survivors’ lawsuit over proton therapy

A federal judge in Boston on Monday allowed three cancer survivors to proceed with their potential class action against UnitedHealthcare Insurance, alleging it “deceptively and unfairly administered their ERISA plans by refusing to cover Proton Beam Radiation Therapy (PBRT) … because it is more expensive than more traditional cancer treatments.”

U.S. District Judge Allison Burroughs denied UnitedHealthcare’s motion to dismiss the lawsuits filed by Kate Weissman of Massachusetts, Zachary Rizzuto and Richard Cole of Florida. The plaintiffs allege that UnitedHealth arbitrarily denied coverage for PBRT to treat their respective cervical, brain, and pre-2019 prostate cancers. The plaintiffs filed suit separately for reimbursement, disgorgement and injunctive relief in 2019, after each had paid between $85,000 and $126,000 for PBRT. Their cases were consolidated last year.

Under its internal Medical Policy No. T0132, UnitedHealthcare “generally” considers PBRT experimental or investigational, Burroughs wrote. (It approves PBRT for patients younger than 19, and in 2019, it decided that PBRT was no longer experimental for prostate cancer.) Weissman, Cole and Rizzuto allege that UnitedHealthcare is ignoring studies and additional evidence that its PBRT policy is out of date, including the FDA’s approval in 1988, its coverage by Medicare and Medicaid, and the plethora of oncology centers that offer it. A UnitedHealthcare affiliate has even pledged $15 million to construct and operate a proton center in New York City, the complaint alleged.

The complaint “plausibly alleged that Defendants acted arbitrarily and capriciously” in denying coverage, which was sufficient to survive the motion to dismiss, Burroughs ruled.

The case is Weissman et al. v. UnitedHealthcare Insurance Company, U.S. District Court for Massachusetts No. 19-10580.

For Weissman et al: Mala Rafik of Rosenfeld & Rafik; Richard Collins of Callahan & Blaine; Lisa Kantor of Kantor & Kantor

For UnitedHealthcare Insurance: Briana Black of Hogan Lovells