"Under the law he had no remedy." How Dr. Dan Hurley's legacy could lead to health insurance prior authorization reform

Even in death, Dr. Dan Hurley’s fight against insurance companies and their often baffling and infuriating decisions on whether to pay – or not – for costly but essential medical care is far from over.

In a shameful case, survivors of the Phoenix-area ear, nose, and throat doctor – who died in August at age 50 from chondrosarcoma, a rare form of cancer – were told by his insurers they wouldn’t pay the $80,000 cost of two final, experimental chemotherapy treatments, even after they’d preliminarily approved the treatment.

“They said, ‘no you can get it,’ and there is small print in their letter saying that authorization does not mean promise of payment – but it does,” Hurley’s wife Traci, who is a pediatrician, said by phone from Arizona. She said the insurer now claims the first dose of chemo came before it was approved – “which is false,” she said – and that the second dose was “medically unnecessary.” 

Traci and Dan Hurley.

Thus, in addition to grieving her late husband and sorting out his estate, Traci Hurley is working with staff at the Mayo Clinic to appeal the decision not to reimburse the chemotherapy that was recommended by two doctors, including a national expert on chondrosarcoma.

In his final months, Hurley not only battled cancer but frequently clashed with insurers to approve the procedures he hoped could prolong his life – even as he continued to take law-school classes online to support his dream of organizing an advocacy group, and perhaps a class-action lawsuit, to challenge the health-insurance practice known as prior authorization. 

Traci Hurley and others said he continued his effort to reform American health coverage to the very end of his life, even consulting with attorney Brian Hufford – an expert in fighting insurance denials – from a hospital bed just weeks before he died.

The Hurley Family.

Hufford, who had no idea how sick Hurley was when they spoke, says the posthumous payment denial from the insurance company illustrates why taking on the industry’s prior authorization racket is so difficult. The law covering most private-workplace health plans – known by the acronym ERISA – offers patients and their families an avenue to appeal denials, albeit a cumbersome one that’s not often used. But it protects insurers from punitive damages from lawsuits, such as a wrongful-death claim that might arise from not paying for a treatment.

“There are no compensatory or punitive damages,” Hufford said. Insurers’ worst outcome on a disputed medical claim, he said, is being forced to pay for the procedure or the drug they initially turned down. 

The fact that Hurley’s family is fighting an expensive claim denial brings his story full circle. It was a very similar dispute involving a major operation for his then-teenage son’s rare knee condition – again, turned down by insurers only after the costly surgery had been performed – that started Hurley’s crusade around the prior authorization issue.

As an ENT doctor, Hurley had clashed with insurance companies on occasion. What he discovered while he fought, successfully, to finally get reimbursement for his son’s surgery was that in too many cases decisions on critical care are made by doctors who are not specialists in the area insurers hire them to review. His son’s operation was initially turned down for coverage by a pediatrician with no familiarity with his condition, osteochondritis dissecans.

Hurley spoke bluntly last spring about insurance denials, saying that “as a patient, it feels like people are trying to kill you – [that] that’s what they prefer.” 

The Pulitzer Prize-winning news organization ProPublica uncovered staggering numbers about prior authorization, reporting that the private insurers who provide health coverage for about 200 million Americans deny about one out of every seven claims, often insisting a particular treatment is not necessary or perhaps too experimental. Hurley’s persistence in fighting and overturning these denials – first for his son, later for himself – is most unusual. One study has placed the appeals rate at just 0.1% of rejections. 

Other reporting by ProPublica confirmed Hurley’s concerns about just who was reviewing these insurance claims, and how. The news service identified one Cigna medical director who personally rejected 60,000 claims in just one month. Many rejected claims were never even opened up and read.

In December 2021, Hurley was diagnosed with chondrosarcoma, an aggressive cancer in his pelvic bone. After a major operation that required a hip replacement, Hurley decided to enroll in law school while he was immobilized, taking remote classes at the University of New Hampshire. He believed a law degree would support his new goal of reforming health insurance, either by organizing patients or through legal action.

Traci Hurley said the night before one major hospital admission, “his law school assignment was due. He had developed a tremor that he didn’t notice, and he had trouble seeing the computer, so he had to tell me what to type. It took us five hours, but we got it done.” 

In those final months, Hurley chronicled his struggles to get tests or new treatments approved in a speedy manner, in letters and writings meant to both criticize the insurers and their medical reviewers and to prod them to do better. In one “Dear Doctor” letter that Hurley sent to a hematology oncologist in New Jersey, he lambasts the time and effort that this physician and another faceless doctor working for the insurance contractor AllMed (whose slogan, Hurley noted with irony, is “making decisions like lives depend on it”) put into a 100-page rejection of one CT scan for which he ultimately paid $680 out of his own pocket.

“I don't know how much time I have left,” Hurley wrote the physician, “but if I can help even a few patients who don't have a voice from being harmed emotionally or physically by an unethical system, I will have partially succeeded in my goal.”

Will Hurley’s vision for changing prior authorization live on? Last spring, he said he was exploring whether insurers or their third-party consultants were vulnerable to legal action such as a class-action lawsuit, and also looking at the creation of an advocacy group with the potential to both help individuals and push for sweeping reform.

Hufford, the lawyer specializing in health-insurance and labor, said that while the ERISA (Employment Retirement Income Security Act) law that created the medical-approval regime was drafted to make a class-action lawsuit difficult, he believed a more limited legal action – challenging systematic denials of a particular procedure, for example – might succeed. But he noted the legal protections for prior authorization are so tight that few lawyers take on health-insurance cases. “Any other scenario – getting cancer because of RoundUp, or asbestos, or a defect in an automobile – you can sue,” he said. “Dan’s family can’t really do anything except get paid.”

Hufford likes Hurley’s concept of a group dedicated to fighting prior authorization, especially as frustration mounts among affected patients and their families, and as the public begins to understand the systematic nature of coverage denials. Such an organization might work with law-school clinics to offer patients and families low-cost legal aid, Hufford said. “I could see an organization combating it politically, but also helping with the law-school clinics.”

“People want to help,” said Traci Hurley, who continues to talk with activists and planned to meet with a leader of the non-profit supporting chondrosarcoma patients, hoping to carry her husband’s legacy forward. She said she’s partly inspired by seeing what Dan had to go through in his final months. “You’re sick and you want to spend time with your family – and then what they make you have to do is exhausting,” she said.

Those who knew Hurley say he’d already made a big difference through his persistence, his candor about the medical profession, and his willingness to share his story, right to the end. His struggles were publicized in several articles – including a widely read piece in New York magazine – and his resolve stiffened the determination of the growing number of people eager to demolish a system that brings hardship to so many families.

“His story is remarkable – that while he was dying he was thinking about how to challenge the system, that’s incredibly noble,” Hufford said. “Frankly, I think his story … could be used as an example, that under the law he had no remedy. That’s an important story that people should be hearing.”