A Patient Takes His Insurance Co to Court

Robert Salim  0:03  
They become bigger than Google, Facebook and IBM, and when you and I are trying to find a system like that the deck stacked against maybe one day people get tired of it like they did an insulin. 

Terry Wilcox  0:17  
This week on the Patient's Rrising Podcast, a celebrated lawyer is diagnosed with throat cancer. And then insurance tells him the treatment he wants isn't medically necessary. But that's just the beginning of the story. Hear how he fought back in just a minute. Welcome to the Patients Rising Podcast. I'm your host, Terry Wilcox, CEO of Patients Rising. I'm joined by my co host, who is selling Turkey leftovers at cyber, cyber monday prices. He's Bob Goldberg, co founder of the Center for Medicine in the Public Interest. Are those leftovers still any good Bob? 

Bob Goldberg  0:54  
Well, let's put it this way, you know, not as good as the first day and not as good as the fifth, or 10th or even 16th turkey sandwich. But I'm worried about safety. If it's still safe. You know, that's up for debate. But I'm here, so they can't be too bad and look for the prices I'm charging. Don't ask for fresh. Okay. 

Terry Wilcox  1:18  
Well, for your sake, I hope not Bob, we need you healthy. And for our sake, I'm so glad we were able to get the guest we have today. It's a story that starts out how many that we've heard before begin. But luckily for our guest, it ends up a little different than most. Robert "Skeeter" Salim is a lawyer, and not just any lawyer. He's actually been named one of the 100 best trial lawyers in the entire country. So when he was diagnosed with an aggressive stage four throat cancer, but then told by his insurance, that they wouldn't be covering his proton therapy treatment. He did what he does best, he fought back. 

Robert Salim  1:58  
I've always been an advocate for my clients. And I've seen horror story after horror story. And I was just determined that, you know, I wasn't going to fall prey to their their scheme. 

Bob Goldberg  2:12  
So after the initial denial, his doctor also tried his best to get it approved. 

Robert Salim  2:18  
So he said I'm gonna appeal it for you, which he did. Then the next thing they came back with and it said it's not medically necessary. Then once again, we appealed it. Then the fourth time we asked for an independent review. But in the meantime, I said this cancer is growing as tumors not getting any smaller. 

Terry Wilcox  2:40  
With the cancer continuing to grow and time still ticking without an approval. Skeeter did what most of us can't. He shelled out than $96,000 for the therapy out of his own pocket. 

Bob Goldberg  2:48  
Now over the next three and a half months, Skeeter did 60 rounds of proton therapy. And after a few months, he got better. But when it was all over with, he decided he wasn't done fighting. 

Terry Wilcox  3:09  
I got back home to my law office and I said this is BS. So we filed suit in court there in my hometown of Natchitoches, Louisiana. We got removed because my group health plan was an ERISA plan. So we got removed to federal court in Alexandria, and started the litigation and went through the magistrate judge ruled in our favor after a year and a half, the district judge ruled in our favor, then Blue Cross appealed to the Fifth Circuit. Fifth Circuit appealed it, then Blue Cross tender to payment and said all we owe is what we would have paid had we initially approved it, which was a third of what I had paid out of pocket. The district court said nope, you owe the man the full amount. And they tended to payment. So after five and a half years, they paid the full amount.

Five and a half years, Bob, five and a half years. Yeah, not very many Americans can do that. What about all of the Americans who need this treatment, and would have the same successful results as Skeeter did, but they can't shell out the $96,000. And then even if they could shell out the $96,000 or they do things like you know use their retirement accounts before they should be excetera they don't have the time or the knowledge to appeal and that's why the system is set up the way it is. 

Bob Goldberg  4:49  
They either waits out wait you until you give up or you die or you move on or you pay for it. 

Terry Wilcox  4:57  
The simplification of our says is probably one of the greatest things that we can do to help patients because it is purposely complicated, right? It is purposely difficult for patients to navigate through and to get what they rightly should be entitled to based on their insurance coverage. One thing we wanted to know from Skeeter, was how they justify denying this treatment. And as we know, insurance can say just about anything. But specifically, in this case, this is what he said. 

Robert Salim  5:32  
They're all bought and paid for by the insurance companies. I mean, they relied on articles that were so outdated. They use the same set of doctors to deny everything. We had two whistleblowers contact us through the litigation, telling us that they have schools seminars, where they train them how to deny claims, and gave me their name sent me information on it. I mean, we couldn't use it in our lawsuit, but I'm planning on that being a source of some future litigation.

Bob Goldberg  6:04  
Not surprisingly, Skeeter says 1000s of people have responded to his story. Most of the people have contacted me have been doctors and medical people that have attempted to get things improve for their patients, and they're frustrated beyond belief. So, you know, we really need to as a society, if you will, we need to do two things. One, get rid of ERISA, ERISA is the worst thing that ever happened. So 1970 ish law, where it says that the insurance companies are presumed correct. And if you have an ERISA policy, which most group policies are, you can only recover even if you win, you have to show the insurance companies arbitrary and capricious, are you're going to get your actual bills and your attorney fees. So the insurance companies now out anything that they would have been out, had they paid it, so that law needs to go away.

Terry Wilcox  7:02  
So essentially, even if you do happen to win against insurance companies, they're only paying what they would have paid for your treatment, nothing else. And that's if you win, which isn't often, probably when we looked at it, probably every 50 ERISA claims, you know, 49 of them the plaintiffs have lost in the courts are not that insensitive. They're just following the law, because most people have someone like Fuller, go to the nth degree to show them how bad that wrong.

ERISA ERISA ERISA

Bob Goldberg  7:40  
erase ERISA, start from scratch. 

Terry Wilcox  7:46  
Bob, can you explain to our audience what ERISA is?

Bob Goldberg  7:52  
No, no, but I guess I will, of course.

I mean, ERISA is first of all stands for the employment Retirement Income Security Act of 1974. And it's a federal law that sets minimum standards for self insured or voluntarily established retirement and health plans. So there's supposed to be protections in there. But it also gives the employers flexibility in designing benefits. 

Terry Wilcox  8:26  
But over the years, it's become a real roadblock. And especially for those patients that I always talk about that we always talk about on this show, the ones that patients are using talks to the most. Those patients who use their health insurance the most. 

Bob Goldberg  8:42  
The ERISA system is a patchwork. Let's put it this way. It's designed to give employers flexibility, but it sounds like especially from Skeeter's ordeal, that it's being used to game the system in ways that were never anticipated or expected. 

Terry Wilcox  9:05  
A lot of ERISA plans even though it does Bob offer employers flexibility. Many of those plans are still being run by the traditional BUCA insurance companies. You know, there are some plans that are really being taken apart and reevaluated and renegotiated in ways that aren't just the BUCAs running them in the normal way they run plans, right. 

Bob Goldberg  9:31  
And I'm surprised that you can only get what they were going to pay for the service and that any damages for you know, suffering and tortious interference and all the other kinds of violations that can translate into higher trial awards. The point is here like even for a celebrated lawyer, who has dealt with insurance companies for years, this was an eye opening experience.

Robert Salim  10:00  
The system is really bad. And what I never realized. I mean, I knew as a lawyer, it was bad. But I never realized that my story got circulated if you will, and try me and people read it, how many people have been harmed by this. I mean, they're not hundreds, not 1000s, there's millions of people in the US that have gone through this. Why don't we sit back and allow it is because nobody thinks until it happens to them, it matters.

Terry Wilcox  10:32  
To Skeeter have hoped for others to fare better in the future. Not so fast. He says it's quite an uphill battle. 

Robert Salim  10:39  
I'm very negative, to be honest with you, because there's so much money involved between, you know, here's your prime example: Insulin cost $10 average across the world, up until recently, when it was finally a governmental outcry to lower the price of insulin to $35. Insulin was running between $200-$120 It costs $1.12 To make. The three main insulin manufacturers and Nova Sanofi and Eli Lilly. They were making between $65 and $80 on each one, the PBMs who make nothing do nothing were making $130. So the rest of the world is paying $10 for insulin, we in the United States are paying between 200-2020 People are losing legs because they're trying to ration insulin, some people are losing their lives. And finally, when there was enough of an outcry, now the price is capped at $35.

Terry Wilcox  11:43  
So Bob, I'm glad you mentioned PBMs. Yes. You know, the group we love to hate. I'm glad you mentioned PBMs because it seems like everyone is getting more familiar with their games. And one of the things that we always talk about, you know, we're talking about insurance companies. Now we're talking about insurance companies and PBM has been one in the same because they bought each other, you know, like CVS and Aetna, and optim and united and everybody owns everybody. Correct? So yes, it's all sort of one big happy family. And so they have a lot more many more levers to pull to gang up on patients, especially those who really need like I said, their health care to work the sickest among us, those that use their health insurance all the time. So what a roller coaster. I'm so glad that there are people like Skeeter out there fighting seems like he went through quite an ordeal. 

Bob Goldberg  12:41  
Yes. And again, you know, it's obviously unfortunate that he had to go through this, but fortunate that he had the wherewithal to keep the stay alive. I don't think they expected him to do that. And of course, I just have to say one thing, you know that our friends at ICER made their claim to fame and saying, oh, proton therapy wasn't cost effective. So just just saying. 

Terry Wilcox  13:05  
Yeah, this was an ICER thing and speaking up now we've got, you know, this is an example. This is an example of, you know, the downstream effects of an ICER review. Yeah, they're gonna use outdated information. So and this just isn't for proton therapy, it's for innovative therapies of all kinds that they review, and they, you know, they give a assessment that is negative, or it's only cost effective if you only approve 15% of those who need it. So I think it's a real demonstration of those effects. For all those who say, Oh, the ICER reviews don't really matter. They don't use the ICER reviews. Well, that's not true. 

Bob Goldberg  13:48  
No, they do. And you know, I'm glad that Robert Skeeter Salim was on the case. And thanks to him for joining us on today's episode, sharing his story and inspiring us to keep fighting. So if you would like to read the full article about his battle against the insurance companies that will be in the show notes.

Terry Wilcox  14:18  
This episode of the Patients Rising Podcast is brought to you by the Patient Helpline. Have a question about medical transportation? On the search for resources to help you as a caregiver? Our helpline has answers. This free service will connect you with the solutions information and resources you need for your healthcare journey. Navigating the healthcare space can be daunting. That's why we're here to help to contact the Patient Helpline, head to the link in the show notes.

Bob Goldberg  14:50  
Finally today, we brought you several stories in earlier episodes about open enrollment, and some numbers are being released regarding uptake. HHS says about 4.6 million people have selected Affordable Care Act marketplace plans in the first few weeks of open enrollment. 

Terry Wilcox  15:10  
According to HHS, 20%, or 920,000, people who chose plans were new to the marketplace. Now, last year, nearly 5.5 million people had enrolled for a Marketplace plan in the first month of open enrollment, and 22% were new to the marketplace. So what does this say to us? It seems like it's moving in the same direction, roughly the same amount? Yeah, we don't have a big uptick in marketplace, enrollees. 

Bob Goldberg  15:40  
Yeah, I think there's not that much variation. And it's sort of stable. You know, by the way, you know, if you watch the TV channels that I do you think that the only plan that's doing open enrollment is Medicare, because every other minute, right, but open enrollment happens for everybody around this time of the year and next year will be a whole new set of provisions and procedures and changes that we will be covering over the next few months. I hope our episode was helpful to many, I know it was helpful to me because it reminded me that I did have to sort of double check my plans. And you can find the previous episodes on open enrollment in the show notes. So Terry, unless you want to have my my leftovers, that that's all for today. We'll have another episode right here next Monday. So make sure to follow the Patients Rising Podcast on your favorite podcast player, so you can be notified as soon as the new episode is live. 

Terry Wilcox  16:44  
Until next week for Dr. Bob and everyone at Patients Rising. I'm Terry Wilcox, stay healthy.