Florida Blue Cross, Blue Shield Facing Class Action For Denying Hep. C Drug

Blue Cross and Blue Shield of Florida Inc. was hit with a class action lawsuit by a policy holder who claims that the newly approved and expensive treatment for hepatitis C is being wrongfully denied to both herself and others.

Plaintiff Janie Kondell says in her Blue Cross class action lawsuit filed on May 27 that she has suffered from hepatitis C for 10 years and that the insurer is failing in its obligation to cover medical treatments that are necessary to treat her disease, saying that insurance company claims that her “liver had not sufficiently deteriorated” for the desired treatment.

“Hepatitis C leads to serious health complications including severe liver damage, infections, liver cancer, and death,” the class action lawsuit explains. “Hepatitis C is the leading cause of cirrhosis — a disease in which healthy liver tissue is replaced with scar tissue, which prevents the liver from functioning properly and can lead to liver failure and liver cancer.”

There was previously no cure or effective treatment for the disease, but in October 2014, the U.S. Food and Drug Administration (FDA) approved a drug called Harvoni, which is considered a “breakthrough therapy” because it is able to cure someone of Hepatitis C in 95 percent to 99 percent of cases, the Blue Cross class action lawsuit explains.

Kondell says that she was prescribed Harvoni by her doctor in February, but coverage of the drug was denied by Blue Cross “almost immediately,” saying that the drug was “not medically necessary” for Kondell to take because her “liver had not sufficiently deteriorated.”

“In other words, Defendant decided that Ms. Kondell hadn’t suffered enough, and her liver hadn’t been damaged enough, by a disease that causes irreparable harm and death, for which a cure is finally available,” the health insurance class action lawsuit claims.

“Florida Blue said it would not consider approving Harvoni for Kondell until her liver has a certain amount of scarring (advanced fibrosis of stage F3 or greater) on a liver biopsy,” she adds.

Kondells says that both she and her doctor were “shocked” by Florida Blue’s decision. Her doctor said that he had never in his 25 years of practicing medicine seen “Florida Blue, or any insurer, take the position that a patient’s disease must get worse, and cause irreparable harm, before it would approve treatment that could arrest the progression of the disease and prevent that harm.”

The denial was appealed by Kondell’s doctor, which was denied in March. He appealed again in March, which denied again in April, citing the same lack of damage by her disease, according to the Florida Blue Cross class action lawsuit.

“No known medical study supports this denial, and nothing in Kondell’s Policy (or any of the class members’ Policies) grants Defendant the right to withhold a potentially life-saving cure, particularly on the perverse and pretextual ‘basis’ that it is not ‘medically necessary,'” the class action lawsuit contends.

The Florida woman claims that Blue Cross falsely claims in its denials that the company made its decision based on recommendations from the American Association for the the Study of Liver Diseases (AASLD). Kondells cites the AASLD website, which says that it “supports treatment in all BCV-infected persons, except those with limited life expectancy (less than 12 months) due to non-liver-related comorbid conditions.”

She is seeking to represent a class of other Florida Blue policy holders who have Hepatitis C and Stage F0, F1 or F2 fibrosis, were prescribed Harvoni, and denied because they don’t have Stage F3 or F4 fibrosis.

The class action lawsuit alleges that Florida Blue Cross and Blue Shield had violated Florida’s Deceptive and Unfair Trade Practices Act, breach of contract, and breach of implied covenant of good faith and fair dealing.

Kondell is represented by Andres Rivero, Alan H. Rolnick, Charles E. Whorton and Daniel A. Sox of Rivero Mestre LLP.

Florida Blue counsel information is not available at this time.

The Florida Blue Cross and Blue Shield Class Action Lawsuit is Kondell v. Blue Cross and Blue Shield of Florida Inc., Case No. 0:15-cv-61118, in the U.S. District Court for the Southern District of Florida.