Aetna has settled a lawsuit in which a company medical director said under oath that he never looked at patients’ records when deciding whether to approve or deny coverage – testimony that prompted an investigation by the California insurance commissioner.
The health insurance giant had vowed to fight the case, saying the medical director’s comments were taken out of context, and strongly defended its policies amid a firestorm after CNN broke the story in February 2018. “When those policies are called into question,” Aetna said at the time, “we will defend them.”
Aetna, which was acquired in November by CVS Health in a nearly $70 billion merger, offered no explanation as to why it chose not to defend its policies in court. The settlement was reached in late March, ahead of trial, according to the parties involved.
“We don’t comment on legal settlements, which are commonplace and by no means an admission of wrongdoing,” said T.J. Crawford, vice president of external affairs for CVS Health.
The terms of the agreement were not released.
“The matter has been resolved to the parties’ mutual satisfaction,” said Scott Glovsky, the attorney representing plaintiff Gillen Washington, who has a rare immune disorder and was a college student when he was first denied coverage.
The office of the California Department of Insurance said it could not comment because its investigation of Aetna is ongoing. Commissioner Ricardo Lara took over this year from Dave Jones, who launched the inquiry in February 2018.
At the time, Jones told CNN that he found it troubling “if the health insurer is making decisions to deny coverage without a physician actually ever reviewing medical records.”
“It’s hard to imagine that, in that entire course in time, there weren’t any cases in which a decision about the denial of coverage ought to have been made by someone trained as a physician, as opposed to some other licensed professional,” Jones said.
News of the settlement raised eyebrows in the legal community. “In my experience with Aetna, they don’t settle cases easily, despite their public pronouncements in the media,” said Doug Terry, an Oklahoma attorney who won a $25 million verdict against Aetna last fall over a “bad faith” case in which a cancer patient was denied coverage.
Arthur Caplan, the director of medical ethics for New York University’s School of Medicine, said he and others in the medical community hoped the settled case would shed light on the way Aetna’s medical directors make coverage decisions.
“Given the importance of how benefits determinations are made by Aetna and other companies, I would hope we could get more transparency of their procedures,” Caplan said. “I thought it might come out of this case, but sadly it doesn’t appear so.
“Hopefully, they’ll be more willing to be transparent on down the road. They should be.”
Washington sued Aetna for breach of contract and bad faith in 2015, saying he was denied coverage for an infusion of intravenous immunoglobulin (IVIG) when he was 19. His suit alleged that Aetna’s “reckless withholding of benefits almost killed him.”
In court filings, Aetna rejected the allegations, saying Washington failed to comply with its requests for blood work. Once his blood was tested, Aetna said, the insurer resumed covering his infusions.
The California insurance commissioner’s investigation revolves around the deposition of Dr. Jay Ken Iinuma, who served as medical director for Aetna for Southern California from March 2012 to February 2015.
During his videotaped deposition in October 2016, Iinuma acknowledged more than once that he did not look at medical records, saying he was following Aetna’s training, in which nurses reviewed records and made recommendations to him.
At one point, he even went out of his way to correct Glovsky, the patient’s attorney. Glovsky had begun to ask about the need to see medical records during a case review when Iinuma corrected him, saying, “the first part of this question was ‘I’d have to review medical records,’ and that’s not true, because the nurse preparing the case would look through the medical … records and provide me with the information required, such as lab values. So that’s why I had to make a little correction there.”
The doctor also said he knew next to nothing about Washington’s condition and wasn’t sure what the drug of choice would be for people with his disorder.
“How would you decide on your own when to actually review the medical records versus relying on what the nurse at Aetna had prepared for you?” Glovsky said.
“What percentage?” Iinuma asked.
Glovsky: “I mean, like, did you ever look at medical records or basically whenever –”
Iinuma: “No, I did not.”
Glovsky: “OK. So as part of your custom and practice in making decisions, you would rely on what the nurse had prepared for you?”
Glovsky: “Instead of actually looking at yourself the medical records?”
Glovsky: “And was that throughout your – your years at Aetna?”
Iinuma: “My tenure, yes.”
Glovsky: “Was that how you were trained to do it when you joined – first joined Aetna?”
Iinuma: “To my recollection, yes.”
When Iinuma had a chance to amend his comments after reviewing the deposition transcript, he signed an “errata sheet” on November 30, 2016, in which he didn’t change those remarks and accepted them, under penalty of perjury, as “true and correct.”
Shortly after CNN reported on the deposition and the investigation by the California insurance commissioner, Aetna released a new sworn statement from Iinuma in which he appeared to indicate that he misunderstood Glovsky’s questions. Glovsky was not present when the new statement was taken.
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“When I stated at the deposition that I never looked at a ‘medical record’ while at Aetna, I understood the term ‘medical record’ to refer to the entirety of a patient historical file containing all charts, doctors’ notes, laboratory tests, and any other report generated by a treating provider for that patient,” Iinuma said in the statement.
“In my mind, and based on my experience, this is the definition of a patient’s ‘medical record’ – a record of their treatment and medical history. Not only is a patient’s medical record generally a very large file or files, in my experience neither patients nor providers submit the entirety of a patient’s medical record to Aetna. Patients and providers submit only portions of a patient’s medical record for Aetna’s review.”
The story was shared far and wide by doctors, patients and others in the medical community.
Angered by the media glare after CNN’s story, the California Superior Court judge delayed the trial start last year. After more delays, the trial was set to begin this spring.