Therefore, insureds have been unsuccessful in relying on studies (like the Proton Radiation Oncology Group (PROG) 95–09 Study, for example) that show reduced side-effects to gastrointestinal (GI) or genitourinary (GU) processes when treated with proton therapy versus other forms of radiation. Courts will adopt the insurance company’s view that such a study has “no bearing on whether proton therapy is more or less efficacious than IMRT” because “the study was not designed to and did not test whether proton therapy is more or less efficacious than other modalities of radiation treatment less efficacious than IMRT.” Baxter, 958 F. Supp. 2d at 1235.

In the most recent federal proton therapy case, Woodruff, the Court did not find persuasive an appeal letter from Dr. Ivan Namihas at Loma Linda University Medical Center that opined “that any trial to demonstrate PBRT’s superior efficacy would be ‘unethical.’” Woodruff, 2018 WL 571933 at *2. In a footnote, the Court responded to this particular point by stating that “the role of this court is not to determine the best course of treatment for prostate cancer, or even whether PBRT is superior to IMRT, but only whether the decision of the Plan to deny coverage benefits was legally acceptable under the terms of the Plan.” Id.


Future ERISA litigation is needed to properly educate federal judges. Dispelling and challenging insurers’ internal guidelines in federal court will unmask decades of insurer deceit. Financial incentives and considerations that infect the development of insurers’ internal guidelines and proper discovery will reveal that insurers’ motivations violate Supreme Court precedent imposing “higher-than-marketplace quality standards on insurers” including that the insurer “‘discharge [its] duties’” “‘solely in the interests of the participants and beneficiaries.’” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008). In fact, there is already hope. On April 29, 2019, Florida federal Judge Robert N. Scola Jr. recused himself from a new class action suit challenging UnitedHealthcare’s denial of proton therapy filed on April 3, 2019. In his one-page recusal, Judge Scola made it publicly known that the denial of proton therapy is “immoral and barbaric.” Cole v. United Healthcare Insurance Co., No. 1:19-cv-21258 (S.D. Fla. Apr. 29, 2019). Cole joins another recently-filed federal ERISA class action (Weissman v. UnitedHealthcare Insurance Co. et al., No. 1:19-cv-10580 (D. Mass. Mar. 26, 2019) against UnitedHealthcare regarding proton therapy denials. The right federal judge with the right case can make all the difference in turning the tide on proton therapy denials.

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