Callahan & Blaine

At Callahan & Blaine, based in Irvine, California, practices vary from catastrophic personal injury to complex business litigation and much more. However, for Senior Trial Attorney Rich Collins, his expertise in insurance recovery, coverage and bad faith, health care law, has found him helping clients who have been wrongfully denied critical and in some instances, life-saving treatments by insurance companies.

His most recent battles have been involved in the denials of Proton Beam Therapy (PBT) an FDA-approved cancer treatment oncologists have recommended for decades.

And now that his work has the attention of NBC, who will be running a story on his fight against PBT denials, we thought we’d sit down and pick his brain on how insurance companies have been getting away with these denials – and what he’s doing to advocate for change. Watch NBC’s story here.

Callahan & Blaine: Briefly explain PBT and how it works.

Rich Collins: Proton beam therapy, or PBT, is a type of radiation therapy for the treatment of cancer. Traditional radiation therapy, known as intensity-modulated radiation therapy (IMRT), delivers x-rays or beams of photons to the cancerous tumor. PBT, as its name suggests, delivers a beam of proton particles. The key distinction and what we contend is the invaluable benefit of PBT is that the beam stops at the tumor, so it’s less likely to damage nearby healthy tissue and organs. IMRT covers a wider area to include the tumor’s margins and the beams cannot be stopped at the tumor; the beams continue to radiate beyond the tumor to the healthy tissue and organs. Essentially, PBT is like using a sniper rifle, whereas IMRT is like using a shotgun.

C&B: When a patient files a claim with their health insurance company for PBT and an insurance company denies it, upon what grounds are they able to deny a procedure recommended by a physician?

Collins: The insurance companies assert an exclusion found in all health plans for services that are deemed “experimental or investigational.” But it’s not.

• The invention of PBT is credited to physicist Robert Wilson, who first described it theoretically in 1946.
• By the 1950’s, some health care facilities were using PBT to treat certain types of cancers.
• The Food and Drug Administration (“FDA”) approved PBT in 1988 for the treatment of cancer.
• PBT has been recognized for decades by the medical community as an established, medically appropriate treatment for cancer.
• PBT is widely accepted by physicians and government agencies, including Medicare and Medicaid, which by statute do not cover “experimental” or “investigational” services.

So how do they get away with it? It’s not based on what the health plan booklets the consumer receives in the mail.  Because in each of these cases, the health plan says that medically necessary oncological radiation therapy is covered for the treatment of cancer. None of these plans distinguish between different types of radiation — photon versus proton.  Even if the consumer were to read all 200 pages of their health plan, they would never expect their PBT to be denied. That’s because the insurance companies use internal clinical policies that the consumer never sees that “define” what the insurance company deems to be “experimental” or “investigational.”  These internal clinical guidelines, drafted by the insurance company, are then given to doctors employed by the insurance company, to serve as their guideline in determining whether or not PBT should be covered.  In each of these cases, those internal clinical guidelines failed to comply with recognized and accepted industry guidelines, such as the NCCN guidelines and the ASTRO model policy.

C&B: What medical degrees or experience do the medical directors at the insurance companies reviewing claims need to have? For example, if the PBT treatment is being recommended by a world-class oncologist, shouldn’t the claim reviewer have similar expertise?

Collins: In Kate Weissman’s case, Zachary Rizzuto’s case, Roslyn Gonzalez’ case, we have some of the world’s most renowned radiation oncologists who have recommended PBT for their patients, explaining in detail for the insurance company why it’s medically necessary and why the safety and quality of their patients’ lives are at stake, only to have a medical director for the insurance company overrule their recommendation. When the denial letter is peeled back and it’s revealed who the doctor is that made the determination, in each of these cases, it was not a Board-certified radiation oncologist.  First of all, there are Board-certified radiation oncologists who have never performed PBT. It’s specialized. But at least the insurance company should have a radiation oncologist review these cases.  In every one of these cases, and in the majority of cases throughout the nation, the initial denial of PBT is made by a physician who is not even a Board-certified oncologist. In Kate’s case, it was an OB/GYN. In Zach and Roslyn’s case, it was a family medicine doctor. This is probably the biggest complaint from the treating radiation oncologists.

C&B: Tell us a little bit about your cases.

Collins: Each one of our PBT cases is special because of the incredibly strong and brave clients we represent.

• Kate’s diagnosis came at the age of 30 – Stage 2B squamous cell carcinoma of the cervix.
• Zach’s diagnosis came at the age of 37 – anaplastic astrocytoma, a rare malignant brain tumor.
• Roslyn’s diagnosis came at 42 years old – atypical lipomatous tumor of the left retroperitoneum.

These young adults, confronting their own world-shattering diagnoses and the challenges of grueling treatment to combat the disease, were forced to battle with their insurance companies.  Each of them is the lead plaintiff in class action lawsuits that we have filed against health insurance companies for their wrongful denial of coverage for PBT.  What makes each of these cases remarkable, and what drives us to do all that we can, is that each one had that moment when they were at their lowest, when they had felt beaten down by cancer and by their insurance company, and each one felt a sense of empathy, compassion, and duty for others who might find themselves in their situation.  Each one has vowed to fight to ensure no other person diagnosed with cancer, for whom their doctor determined should receive medically necessary PBT, should ever be denied access to that treatment because of an insurance company placing profits over their well-being.

The insurance companies have filed motions to dismiss our cases and we have filed briefs in opposition. Our cases are being litigated in the federal courts and, unfortunately, the federal courts were experiencing a serious backlog of cases that was worsened with the Coronavirus pandemic. We are waiting for either the courts to set hearing dates for oral arguments or to issue rulings on the motions from chambers.

C&B: What is your ideal outcome when you litigate against a powerhouse such as Health Net or United?

Collins: Change. My goal with every one of our lawsuits we file against a health insurance company is to never have to file another one. In each case, we are asking the court to determine that the insurance company’s internal policies that are used to deny coverage fail to meet the standard of care and should be replaced with ones that are consistent with accepted industry guidelines, like those from NCCN and ASTRO.  The second request is that the court order the insurance company to reevaluate all of the denied claims under the new court-ordered guidelines.

C&B: What would you suggest to anyone in the position of being denied PBT or other life-saving treatments by their insurance company?

Collins: Call me right away. The system is stacked against the cancer patient — 63% of cancer patients whose doctors recommend PBT receive denials from their insurance companies. Even when successful in reversing the initial denial, nearly three weeks of a delay in treatment is spent appealing and waiting.  If forced to exhaust the appeal process, PBT is denied 42% of the time and it takes an average of more than five weeks to receive that final denial.  I have been able to help some patients reverse a denial without the need for litigation. Other times, the insurance company has upheld its denial but we have flooded the file with letters, medical records, and reports that will be evidence when we do have to file the lawsuit.

If your insurer has denied you or a loved one vital, life-saving treatment, we urge you to join our fight. Contact Rich Collins at 714-241-4444 or rcollins@callahan-law.com for expert legal counsel.