Texas Jury Finds Humana HMO Liable in Wrongful Death Lawsuit

July 21, 2005

A local jury in San Antonio, Texas, on July 1 awarded $7.4 million in actual damages in a wrongful death lawsuit against the health maintenance organization Humana Health Plan of Texas Inc., a physician, and his physicians group under contract to provide health care services, according to the Powell Law Firm, which represented the plaintiffs in the case.

Jurors were to consider punitive damages in the second phase of the trial, but attorneys for Humana and the plaintiffs reached an out-of-court agreement that capped those damages at $1.6 million, bringing the total amount of damages to $9 million. Humana will be liable for 35 percent of the $7.4 million in actual damages and the entire $1.6 million in punitive damages after all appeals are exhausted.

The plaintiff’s attorneys said that in the lawsuit, John Smelik and his two adult children accused Humana and others of negligence in the June 1, 2001, death of Joan Smelik, John’s wife of 47 years. Brant Mittler, a practicing cardiologist, and a lawyer represented the Smeliks along with lead plaintiffs’ attorney Jon Powell, and Renee F. McElhaney, appellate counsel for the case from Cox Smith Matthews Incorporated, the largest law firm in San Antonio.

Testifying as an expert witness for the plaintiff in this case was Dr. Linda Peeno, the internationally recognized patients’ rights activist and former Humana Medical Reviewer.

Humana was represented by Wilson, Elser, Moskowitz, Edelman & Dicker, based in New York City.

The jury decision came after nearly three days of deliberation, culminating a three-week trial presided over by 224th District Judge Rene Diaz, a conservative Republican recently appointed to the bench by Texas Gov. Rick Perry. Judge Diaz most recently comes from an insurance defense background prior to being appointed to the bench.

In the statement announcing the judgment, the Powell Law Firm noted that Mrs. Joan Smelik was a complex patient who according to Humana never hit the “triggers” to qualify for case management. Humana’s own computer records for Mrs. Smelik showed that Humana knew of her diseases even down to the size of each of her small kidneys, which were indicative of “chronic” kidney disease.

Ms. Smelik had a documented episode of acute renal failure attributed in part to the effects on her kidneys of a combination of three drugs, specifically a NSAID agent (non-steroidal anti-inflammatory drug), a diuretic, and an ACE inhibitor in September 2000. Then, Humana approved Vioxx, an NSAID type drug, in January 2001, and later approved the purchases of the exact same three-drug toxic cocktail of prescription drugs that had put Joan Smelik into renal failure five months earlier. Mrs. Smelik died from complications of renal failure requiring emergency dialysis in May 2001.

Ten of the 12 jurors did agree that Humana was among three of the named defendants who bore responsibility for Joan Smelik’s death. The plaintiffs alleged that Joan Smelik did not receive the health care promised by Humana’s own written policies and standards.

Specifically, the plaintiffs demonstrated through testimony that Mrs. Smelik was suffering from emphysema, kidney disease, and a circulatory condition that affected the kidneys and should have been closely monitored in the months before her death.

Along with Humana, the lawsuit named as defendants two doctors, Dr. Michael W. Mann and Dr. Fred C. Campbell Jr., and the Alamo City Medical Group, P.A., which was Mann’s employer and the corporate health care provider under contract to Humana. Campbell cared for Mrs. Smelik under another health insurance provider.

Prior to the trial, which began June 13, all the defendants had agreed to out-of-court settlements with the Smelik family, except for Humana. The earlier settlements totaled $602,000.

Nonetheless, jurors were required by law to attribute blame for the negligence among all the defendants. Specifically, the jury found that Humana was 35 percent responsible, Mann was 50 percent responsible and Alamo City Medical Group was 15 percent responsible. Campbell was not assessed any blame by the jury.

A 2004 U.S. Supreme Court decision in Aetna vs. Davila made it more difficult for disgruntled patients to sue HMOs, such as Humana, in cases where plaintiffs who receive their health plans from employers are claiming a denial of medical care. The high court ruled those cases fall under the Federal Employee Retirement Income Security Act (ERISA), which applies to most of the millions who receive HMO care through their employers and limits the amount of damages that can be recovered in a negligence lawsuit to actual losses.

The law firm said Smelik v. Humana was pleaded as a mismanaged managed care case. The Smelik verdict potentially gives new hope to HMO enrollees who are under ERISA and believe that Aetna v. Davila pre-empts their ability to sue their HMO when HMOs demonstrate negligence, fraud, substandard care or denial of benefits, the attorneys said.

The Smeliks alleged that the care delivered by Humana and its physicians to Joan Smelik was substandard. Testimony showed that Mrs. Smelik had been under case management when Humana had outsourced that service to another health care provider. But when that contract ended and Humana began handling case management on its own, Mrs. Smelik’s case reportedly was not given the necessary extra oversight.

Previously, employer based HMOs’ denial of health care benefits had been largely shielded from regulation by state legislatures with the Supreme Court decision in Aetna v. Davila. Now, the Smelik verdict empowers individuals to fight against HMOs when the HMOs are focused more on saving dollars than on saving lives, the law firm said.

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