ERISA Victory Against Atena in a Medical Benefits Case

Without IVIG therapy, this lack of antibody replacement results in chronic respiratory infections, including pneumococcus or bronchiectasis, the former of which can kill a person within 6 hours, the latter of which leads to continued lung deterioration and death generally 20 years or so younger than the anticipated life span of an individual. IVIG therapy is given intravenously. Ms. Williams has a central venous access device that her physicians use to infuse the IVIG into her body. The process takes about 3 hours. Ms. Williams’ IVIG treatment cost about $5,000 per infusion, which occurs on a monthly basis. Fortunately for Ms. Williams, her parents were able to bear the approximately $60,000.00 yearly cost of the treatment during the litigation or she would have died years ago.

Prior to Aetna’s involvement in this matter, Ms. Williams had health coverage under the National Rural Electric Cooperative Association (“NRECA”) through its self-funded Group Benefits Program. When Ms. Williams developed selective antibody deficiency she made a claim for intravenous immunoglobulin (“IVIG”) treatment which had begun on March 12, 2009. On July 23, 2009, and again on December 16, 2009, the NRECA denied coverage because it concluded IVIG was not medically necessary. The NRECA had initially misdiagnosed Ms. Williams with common variable immune deficiency instead of selective antibody deficiency. I filed suit for Ms. Williams against the NRECA on July 10, 2010, and the matter was eventually resolved through settlement. Indeed, the NRECA never seriously disputed the medical necessity of IVIG treatment, as one of their own medical consultants eventually admitted in a November 3, 2009, report to the NRECA that “[t]he lack of antibody response to pneumococcal vaccination raises the possibility of selective antibody deficiency which is an acceptable indication for IVIG.” Notably, the evidence submitted by Ms. Williams to the NRECA was also submitted to Aetna.

Immediately after the settlement with NRECA, Ms. Williams’ health coverage with Aetna began on January 1, 2011, as the employer of her father switched from a self-funded plan to one insured by Aetna. Unfortunately, Aetna’s claims management was even worse than the NRECA’s. Aetna failed to gather or examine relevant evidence. Initially, Aetna did not review Ms. Williams’ laboratory data that it had in its possession since July 13, 2011, until July 3, 2013, which was at least a cause of Aetna’s admitted misdiagnoses of Ms. Williams for almost two years. Additionally, Aetna failed to review most of the Plaintiffs’ submitted evidence until July 3, 2013, almost two-and-a-half years after Ms. Williams’ January 4, 2011, initial claim. Second, Aetna’s acknowledgment that it changed its decision rationale between its initial and final decision was established. Indeed, Aetna specifically admitted that all previous denial rational prior to its final denial of July 8, 2013, concerning its position that intravenous immunoglobulin (“IVIG”) therapy was experimental and investigational and had nothing to do with periodic trial discontinuation of IVIG therapy, the rationale used in its final denial. Finally, Aetna based its decision on a selective review of the evidence, refusing to timely credit the key opinions of Ms. Williams’ treating physicians or rebut their opinions in any fashion whatsoever. Aetna did not dispute those physicians’ opinions that circumstances were not appropriate to decrease or stop the IVIG therapy because Ms. Williams’ lung function would deteriorate, she could die within six hours of an overwhelming pneumococcal infection or she could develop bronchiectasis, which is not curable, and would cause continued deterioration of her lungs at a relatively rapid rate such that she would die by the age of 50 or so. Indeed, not only did Aetna fail to rebut the evidence submitted by Ms. Williams, it eventually agreed with it.

Accordingly, Chief Judge Karen Caldwell found that Aetna’s refusal to pay for Plaintiff’s intravenous immunoglobulin treatment for her selective immunodeficiency condition was arbitrary and capricious because, among other things, Aetna changed its rationale for denying coverage from “experimental or investigational” to “failure to conduct a trial discontinuation of treatment” and Aetna did not meaningfully investigate the claim. It was a complete victory for our client.