Top 100 Litigator Sues Blue Cross Over His Cancer Treatment

In 2018, Robert Salim, 67, realized he was seriously ill. After numerous tests, he was diagnosed with stage 4 throat cancer.

His doctor told him he’d respond well to a treatment called proton therapy, which focuses a tight beam of radiation on a tumor, but Blue Cross and Blue Shield of Louisiana would not pay for it.

The cheaper, less precise treatments they would approve could severely damage nearby organs, leaving him without taste or smell, and possibly with impaired brain function.

Salim, a well-known litigator who has won multi-million dollar verdicts against major corporations, appealed for superior treatment. When that failed, he paid the $96,000 bill for proton therapy and sued Blue Cross.

The type of policy he had was governed by ERISA. The Department of Labor is charged with enforcing it, but the 1974 statute it relies upon gives insurers broad powers to deny treatments and does not allow for punitive damages.

Few attorneys will represent patients in ERISA suits. Salim talked to some of them, who told him his case was hopeless. Nevertheless, he pursued it, mostly because his proton therapy was very successful, and it grated on him that patients who didn’t have his means would have to make do with inferior treatments.

As reported in The Oregonian, a childhood friend of his, another litigator but one familiar with ERISA, took his case. A letter written by Salim’s doctor criticizing the guidelines the insurer had relied upon to deny payment became a key piece of evidence.

The courts ruled that Blue Cross must pay for Salim’s treatment, but they didn’t say how much. Blue Cross maintains it only owes the discounted rate they would have paid at the time he needed treatment, $35,000. He wants all $96,000.

The case is still open. It is not precedential, but it may be persuasive if other patients seek the same therapy Salim paid for after his denial.