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IN THE DISTRICT COURT BEXAR COUNTY, TEXAS57th JUDICIAL DISTRICT CAUSE NO. 2003-CI-06936
JOHN PETER SMELIK, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF JOAN DIANE SMELIK, JANICE ANN SMELIK AND JOHN ANDREW SMELIK, SR., PLAINTIFFS, VS. MICHAEL W. MANN, M.D., FRED C. CAMPBELL, JR., M.D., ALAMO CITY MEDICAL GROUP, P.A., ALAMO CITY MEDICAL GROUP, I.P.A., P.A., ALAMO CITY MEDICAL CORPORATION, SAN ANTONIO PHYSICIAN’S ALLIANCE, HUMANA HEALTH PLAN OF TEXAS, INC., AND ALBERTSON’S, INC.,DEFENDANTS.
PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiffs John Peter Smelik, individually and as executor of the estate of Joan Diane Smelik, Janice Ann Smelik, and John Andrew Smelik, Sr. (hereinafter collectively referred to as “Plaintiffs”) complaining of Defendants Michael W. Mann, M.D., Fred C. Campbell, Jr., M.D., Alamo City Medical Group, P.A.; Alamo City Medical Group, I.P.A., P.A.; Alamo City Medical Corporation, San Antonio Physician’s Alliance, Humana Health Plan of Texas, Inc., and Albertson’s, Inc. (hereinafter collectively referred to as “Defendants”) and for causes of action would respectfully show the following: DISCOVERY CONTROL PLAN Plaintiffs intend that discovery be conducted under Level 3 of TEX. R. CIV. P. 190. PARTIES 2. Plaintiff John Peter Smelik (“John Smelik”) resides at 8012 Ashford Drive, Spring Branch, Texas 78070. 3. Plaintiff Janice Ann Smelik-Briggs (“Janice Smelik”) (the “Briggs” represents her new married name) resides at 1110 Vista Valet, Apartment 504, San Antonio, Texas 78216. Plaintiff John Andrew Smelik, Sr. (“John Andrew Smelik”) resides at 8926 Leader Street, Houston, Texas 77036. Plaintiffs are the devoted and loving family members of the deceased Joan Diane Smelik (“Joan Smelik”). John Smelik was married to Joan Smelik for forty-seven years up to the time of her death on June 1, 2001. John Smelik has been duly appointed as executor of the estate of Joan Smelik pursuant to her will. Janice Smelik is the daughter and John Andrew Smelik is the son of Joan Smelik. Plaintiffs are all of the beneficiaries and heirs entitled to bring this wrongful death and survival action pursuant to �� 71.004 and 71.021 of the TEX. CIV. PRAC. & REM. CODE. John Smelik brings this lawsuit in his individual and representative capacity for the estate of Joan Smelik. Janice Smelik and John Andrew Smelik bring this lawsuit in their individual capacities. Defendant Michael W. Mann, M.D. (“Mann”) is an individual and physician duly licensed to practice medicine in the State of Texas. Mann has been served with process and has filed an answer herein. Defendant Alamo City Medical Group, P.A. (“ACMG, PA”) is a healthcare provider duly authorized to transact business in the State of Texas. ACMG, PA has been served with process and has filed an answer herein. Defendants Alamo City Medical Group, I.P.A., P.A. (“ACMG, IPA, PA”), Alamo City Medical Corporation (“ACMC”), and San Antonio Physician’s Alliance (“SAPA”) are predecessors-in-interest and successors-in-interest to one another. ACMG, IPA, PA became ACMC. ACMC is a dissolved corporation. ACMC and Physician’s Primary Care Alliance merged together on November 21, 2001 and changed into SAPA. ACMG, IPA, PA; ACMC and SAPA were contracting entities for themselves and for ACMG, PA. ACMG, IPA, PA; ACMC and SAPA conducted their business through ACMG, PA. ACMG, IPA, PA; ACMC and SAPA were agents and/or alter egos of ACMG, PA and of one another. ACMG, IPA, PA; ACMC and SAPA shared members, employees, assets, officers, directors and owners with ACMG, PA. ACMG, IPA, PA; ACMC and SAPA ignored their corporate forms and operated as a joint enterprise, joint venture and/or common identity with ACMG, PA. Plaintiffs seek to pierce the corporate veil as between ACMG, IPA, PA; ACMC, SAPA and ACMG, PA and between ACMG, IPA, PA; ACMC, SAPA and ACMG, PA and their members, officers, directors and/or owners. ACMG, IPA, PA; ACMC, and SAPA were operated as sham entities to perpetuate a fraud. ACMG, IPA, PA; ACMC and SAPA’s roles, responsibilities and identities were fraudulently concealed from the Plaintiffs in this matter. Further, there was a misnomer with respect to the naming in the Plaintiffs’ Original Petition of ACMG, PA alone as opposed to naming all of ACMG, PA; ACMG, IPA, PA; ACMC and SAPA. ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA all had actual and constructive notice of the claims made herein through receipt of 4590i notice letters and actual and constructive notice of this lawsuit by virtue of receipt through service of process of the Plaintiffs’ Original Petition as it was served on a member, officer, director and/or owner of ACMG, PA; ACMG, IPA, PA; ACMC and SAPA. ACMG, IPA, PA; ACMC and SAPA, for the reasons set forth above and for additional good and sufficient reasons, have not been prejudiced with respect to their defenses against claims that have 2-year statutes of limitations. The Plaintiffs also plead the discovery rule and all applicable tolling doctrines with respect to ACMG, IPA, PA; ACMC and SAPA. The Plaintiffs also assert claims such as fraud herein that have a 4-year statute of limitations as against ACMG, IPA, PA; ACMC and SAPA. ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA were served with process by serving their partner, member, owner, officer, and/or director Bruce Begia, M.D. at his last known address of 3453 IH-35 North, Suite 207B, San Antonio, Texas 78219-2338. ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA have filed answers and/or made appearances herein. Defendant Fred C. Campbell, Jr., M.D. (“Campbell”) is an individual and physician duly licensed to practice medicine in the State of Texas. Campbell has been served with process and has filed an answer herein. Defendant Humana Health Plan of Texas, Inc. (“Humana”) is a Texas corporation duly authorized to transact business in the State of Texas. Humana has been served with process and has filed an answer herein. Defendant Albertson’s, Inc. (“Albertson’s”) is a corporation that is authorized to operate in Texas, and that has operated grocery stores and pharmacies in Texas. Albertson’s has been served with process and has filed an answer herein. The Plaintiffs have non-suited Albertson’s in this matter. VENUE AND JURISDICTION The subject matter in controversy is within the jurisdiction of this Court. The amount in controversy, exclusive of interest and attorneys’ fees, exceeds the minimum jurisdictional limits of this Court. The Court has personal jurisdiction over the parties. The causes of action set forth herein arose out of events or omissions that took place in Bexar County, Texas. Venue in Bexar County, Texas is proper in this cause under Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in this county. Venue in Bexar County, Texas is also proper in this cause under Section 15.005 of the Texas Civil Practice and Remedies Code for all of the Defendants because the Plaintiffs have established proper venue against one or more of the Defendants in Bexar County such that venue is proper for all of the Defendants in Bexar County due to the fact that all claims or actions asserted herein by Plaintiffs arise out of the same transaction, occurrence, or series of transactions or occurrences involving the Defendants. The defendants that have filed an answer herein filed their answers without filing a motion to transfer venue. The Plaintiffs are making a claim in the alternative under ERISA � 502(a)(1)(B) as against Defendant Humana. This state court has concurrent jurisdiction with federal courts over the ERISA � 502(a)(1)(B) claim made herein by the Plaintiffs against the Defendant Humana. Defendant Humana has not timely removed this matter to federal court and therefore jurisdiction over all of the state law and the ERISA � 502(a)(1)(B) claim will remain with this state court. PRE-SUIT NOTICE OF CLAIM All of the Defendants have received proper pre-suit notice of this claim as required in TEX. REV. CIV. STATUTES article 4590i � 4.01 and other applicable laws. PROFESSIONAL RELATIONSHIPS Joan Smelik suffered injuries and death during the years 2000 and 2001 due to the negligent, grossly negligent, fraudulent and/or malicious conduct of the Defendants and due to the acts and/or omissions of the Defendants and their affiliates, alter egos, joint ventures, employees, agents, ostensible agents, representatives, and/or independent contractors over whom the Defendants had a right of control. During the time period at issue, Mann was a physician duly licensed by the State of Texas to practice medicine. He held himself out and represented to Plaintiffs and Joan Smelik and to the public in general that he was competent and qualified. Mann and Joan Smelik had a physician-patient relationship. During the time period at issue, ACMG, PA was a professional association and it held itself out and represented to Plaintiffs and Joan Smelik and to the public in general that ACMG, PA and its physicians were competent and qualified to provide medical services. ACMG, PA is directly and vicariously liable for the conduct of Mann and ACMG, PA’s affiliates, nurses, employees, agents, ostensible agents, representatives and/or independent contractors over whom it retained a right of control. ACMG, IPA, PA; ACMC and SAPA, during the time period at issue, contracted for themselves and for ACMG, PA with Humana. ACMG, IPA, PA; ACMC and SAPA committed negligent, grossly negligent, fraudulent, and/or malicious conduct with respect to the healthcare and treatment provided to Joan Smelik. ACMG, IPA, PA; ACMC, and SAPA are directly liable for their own conduct. ACMG, IPA, PA; ACMC, and SAPA are vicariously liable for the conduct of one another and for ACMG, PA and Mann. ACMG, IPA, PA; ACMC, and SAPA are also vicariously liable for the conduct of their affiliates, joint venturers, alter egos, doctors, nurses, employees, agents, ostensible agents, representatives and/or independent contractors over whom ACMG, IPA, PA; ACMC and SAPA retained a right of control. SAPA is the successor entity to ACMC and is responsible to Plaintiffs for the acts and/or omissions complained of by the Plaintiffs herein. ACMC is the successor entity to ACMG, IPA, PA and is responsible to Plaintiffs for the acts and/or omissions complained of by the Plaintiffs herein. ACMG, PA, Mann, ACMG, IPA, PA; ACMC and SAPA did not disclose to the Plaintiffs the roles and responsibilities of ACMG, IPA, PA; ACMC and SAPA with respect to the healthcare and treatment provided to Joan Smelik. During the time period at issue, Humana was a health maintenance organization that represented to Plaintiffs and Joan Smelik and to the public in general that Humana would provide adequate and appropriate medical care and that its physicians were competent and qualified. Humana contracted with Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA for them to provide care to Humana enrollees of which Joan Smelik was one. Humana had a non-delegable duty to monitor the care and the quality of care provided by Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, all of which were authorized providers in the Humana system. Humana also made numerous misrepresentations to the Plaintiffs in its HumanaHMO Member Handbook and Provider Director San Antonio Summer 2000 (the “Member Handbook.”) Humana, in its Member Handbook, listed at page xx, the rights of HumanaHMO members. Humana, as will be set forth in more detail below, did not afford Joan Smelik the rights set forth at page xx of the Member Handbook. Furthermore, at page xxiv of the Member Handbook, Humana made representations about what Humana would do for its members in terms of utilization management, concurrent review, and medical case management. Humana, as will be set forth in more detail below, did not comply with its representations made in the Member Handbook in these areas. Joan Smelik was a participant and/or beneficiary of the HumanaHMO plan that John Smelik and Joan Smelik were enrolled in through John Smelik’s employer. During the time period at issue, Campbell was a physician duly licensed by the State of Texas to practice medicine. He held himself out and represented to Plaintiffs and Joan Smelik and to the public in general that he was competent and qualified. Campbell and Joan Smelik had a physician-patient relationship. STATEMENT OF FACTS Joan Smelik, a devoted wife, and loving mother, died as a result of the negligence, gross negligence, fraud and/or malice of the Defendants herein. Joan Smelik was a patient of Humana which represented to the Plaintiffs and Joan Smelik and to the general public that it was a competent provider of skilled medical care. Joan Smelik was a patient of Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, which were under contract with Humana. In September 2000, Mann admitted Joan Smelik to North Central Baptist Hospital in San Antonio, Texas. Joan Smelik was diagnosed with acute renal insufficiency and bilateral renal artery stenosis. Mann sought subspecialty consultation with a kidney specialist. Mann subsequently ordered Joan Smelik to undergo bilateral renal artery stenting. After the stenting, Mann was supposed to follow Joan Smelik as an outpatient for her renal artery stenosis and insufficiency. Mann failed to properly follow Joan Smelik as an outpatient for her renal artery stenosis and insufficiency. Among other things, (1) Mann failed to properly monitor and evaluate Joan Smelik’s chronic renal disease and failed to properly monitor and evaluate Joan Smelik after she was treated with bilateral renal artery stents; (2) Mann negligently prescribed kidney-toxic medications for Joan Smelik such as Vioxx, high-dose Lasix (Furosemide), and Tevetan; (3) Mann, in direct contravention of the directions and warnings set forth by the manufacturers of the drugs Vioxx, Furosemide and Tevetan, failed to order frequent Chem-7 or other tests of renal function after these drugs were prescribed for Joan Smelik; (4) Mann, on April 6, 2001, ordered a Chem-7 test for Joan Smelik which was not taken and Mann, despite having repeated opportunities to do so, failed to follow-up to make sure that the Chem-7 test he had ordered on April 6, 2001 was taken and the results reviewed by him and filed in the medical records for Joan Smelik; (5) Mann failed to refer Joan Smelik to a nephrologist after her renal stents were placed on October 10, 2000; (6) Mann failed to properly monitor drug therapy prescribed to Joan Smelik for hypertension and arthritis; (7) Mann failed to appropriately evaluate Joan Smelik’s family’s repeated complaints and warnings about dangerous signs and symptoms she was exhibiting; and (8) Mann failed to follow the policies and procedures of ACMG, PA, ACMG, IPA, PA, ACMC, SAPA and Humana. ACMG, PA; ACMG, IPA, PA; ACMC and SAPA failed to properly monitor the care provided by Mann to Joan Smelik. ACMG, PA; ACMG, IPA, PA; ACMC and SAPA also failed to perform concurrent review, utilization review and quality assurance as appropriate for the care and treatment of Joan Smelik. Staff, employees, doctors, nurses and/or independent contractors over whom ACMG, PA; ACMG, IPA, PA; ACMC and/or SAPA retained the right to control, failed to draw blood for a Chem-7 test as ordered by Mann on April 6, 2001 or thereafter, failed to maintain the medical records for Joan Smelik in proper order, failed to properly complete the referral paperwork that was necessary, and committed additional negligent, grossly negligent, fraudulent and/or malicious acts and/or omissions with respect to the care and treatment of Joan Smelik. Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA failed to disclose the financial incentives of managed care and that those incentives interfered with the doctor’s judgment and created an unacceptable conflict of interest. These financial incentives were improper. Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA also failed to properly implement the protocols, policies and procedures of ACMG, PA; ACMG, IPA, PA; ACMC, SAPA and Humana. ACMG, PA; ACMG, IPA, PA; ACMC and SAPA are responsible for the acts of Mann under the theories of actual, apparent, or ostensible agency, respondent superior, direct and vicarious liability, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA are further responsible for the acts of their affiliates, alter egos, joint venturers, employees, doctors, nurses, agents, ostensible agents, employees, representatives and independent contractors over whom ACMG, PA; ACMG, IPA, PA; ACMC and SAPA retained a right of control under the theories of actual, apparent, or ostensible agency, respondent superior, direct and vicarious liability, alter ego, joint venture and/or joint enterprise. All of the acts and/or omissions of Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, as described herein, are below the minimum standard of care for a practitioner caring for patients with like or similar conditions. Because of the negligence, gross negligence, fraud and/or malice of Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, as well as the additional Defendants herein, Joan Smelik entered the emergency department of North Central Baptist Hospital on May 13, 2001 in acute renal failure and died on June 1, 2001. The negligence, gross negligence, fraud and/or malice of Defendants Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, as well as the other Defendants herein, were a direct and proximate cause of the untimely wrongful and premature death of Joan Smelik. Plaintiffs have incurred substantial economic and non-economic damages as a direct and proximate result of the negligent, grossly negligent, fraudulent and/or malicious conduct of Defendants Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, and the other Defendants herein. Joan Smelik was a patient of Campbell. Campbell established a doctor-patient relationship with Joan Smelik on or before May 4, 2001. Campbell committed numerous negligent, grossly negligent, fraudulent and/or malicious acts or omissions during the course of his care and treatment of Joan Smelik. Among other things, (1) Campbell failed to order a Chem-7, or any other blood test, for Joan Smelik on her May 4, 2001 and May 11, 2001 visits to the office of Campbell; (2) Campbell failed to obtain and review the medical records file for Joan Smelik from Mann in a timely fashion as required under the circumstances; (3) Campbell failed to call Mann and discuss the care and treatment of Joan Smelik prior to May 13, 2001; (4) Campbell failed over the course of four contacts � two phone calls and two office visits � to recognize and react properly to indications that Joan Smelik had chronic renal disease and renal problems; (5) Campbell failed to evaluate and treat at any time Joan Smelik’s chronic renal disease and renal problems; (6) Campbell did not recognize and react properly to information that was in his medical records that clearly showed that Joan Smelik had a history of bilateral renal artery stents and that she was taking kidney-toxic medications such as Vioxx, high-dose Lasix (Furosemide), and Tevetan; (7) Campbell failed to comply with the warnings and directions set forth by the manufacturers of the drugs Vioxx, Furosemide and Tevetan and to order Chem-7 or other tests of renal function for Joan Smelik; (8) Campbell, after being placed on notice of the renal artery stents by the Smeliks, failed to obtain a sufficient history from Joan Smelik or other sources and failed to collect the necessary medical information from Joan Smelik or other sources in order to properly evaluate and treat Joan Smelik with the urgency that the clinical situation required; (9) Campbell failed to recognize that Joan Smelik’s uncontrolled hypertension was a sign of underlying renal disease and/or a contributing factor to her underlying progressive renal failure; (10) Campbell failed to properly evaluate and treat Joan Smelik’s uncontrolled hypertension; (11) Campbell failed to appropriately evaluate Joan Smelik’s and her family’s complaints and warnings about dangerous signs and symptoms Joan Smelik was exhibiting; (12) Campbell failed to recognize and react properly to the urgent situation Joan Smelik had with respect to her renal function on May 4, 2001 and May 11, 2001; (13) Campbell failed to refer Joan Smelik to a kidney specialist; and (14) Campbell failed to refer Joan Smelik for life-saving kidney dialysis on or before May 13, 2001. All of the acts and/or omissions of Campbell, as described herein, are below the minimum standard of care for a practitioner caring for patients with like or similar conditions. The acts and/or omissions of Campbell described above, along with those of the other Defendants herein, directly and proximately resulted in the severe renal failure experienced by Joan Smelik and her subsequent death on June 1, 2001. Joan Smelik met her untimely wrongful and premature death due to the negligence, gross negligence, fraud and/or malice of Campbell, and the other Defendants herein. Plaintiffs have incurred substantial economic and non-economic damages as a direct and proximate result of the negligent, grossly negligent, fraudulent and/or malicious conduct of Campbell, and the other Defendants herein. Humana, as set forth above and below, was a health maintenance organization that represented to Plaintiffs and Joan Smelik and to the public in general that Humana would provide adequate and appropriate medical care and that its physicians were competent and qualified. Humana contracted with Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA for them to provide care to Humana enrollees, of which Joan Smelik was one. Humana had a non-delegable duty to monitor the care and the quality of care provided by Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA, which were authorized providers in the Humana system. Humana has violated Texas state laws. Humana has violated the Texas Deceptive Trade Practices Act and the Texas Insurance Code. Humana also made negligent and/or fraudulent misrepresentations to the Plaintiffs in its Member Handbook. Humana in its contracts with Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA and in its written materials, including the Humana Physician’s Administration Manual, committed to perform various responsibilities and to provide various services including utilization management, concurrent review, medical case management, disease management and quality assurance. Humana failed to meet its responsibilities and to provide the services it committed to provide. The acts and/or omissions of Humana described in this paragraph are not the same as a denial of benefits that can be remedied under ERISA � 501(a)(1)(B). Humana, in its Member Handbook, at page xx, set forth the rights and responsibilities of HumanaHMO plan members. These rights included, among other things, the right to (1) “[b]e provided with information about the HumanaHMO plan, its services and benefits, its providers, and your member rights and responsibilities;” (2) “[b]e informed of your diagnosis, treatment choices, including nontreatment, and prognosis in terms you can reasonably expect to understand, and to participate in decision-making about your health care and treatment plan;” (3) “[e]xpect reasonable access to medically necessary health care services regardless of race, national origin, religion, physical abilities, or source of payment,” (4) “[p]articipate in wellness programs;” and (5) “[r]eceive assistance from Customer Service for concerns and questions.” Humana violated these rights of Joan Smelik. Joan Smelik did not receive information about Humana disease management programs such as for COPD. Joan Smelik was not properly informed of her diagnoses and treatment choices and was therefore robbed of any meaningful opportunity to participate in decision-making about her care and treatment plan. Joan Smelik did not receive access to the proper number of Chem-7 tests, a kidney specialist, and the appropriate Humana disease management programs that her condition required. Humana reviewed the case file for Joan Smelik on more than one occasion after the Smeliks placed phone calls to Humana and Humana failed, after such calls and associated reviews, to make sure that Joan Smelik received the medically necessary healthcare and treatment to which she was entitled. Humana, at page xxiv of its Members Handbook, described utilization management: “Utilization management is a major part of Humana’s medical care evaluation program. To help every plan member receive care in the appropriate setting we work with your doctor and other health care professionals to review your health care services. This review helps assess whether the treatment provided is appropriate and that other possible treatment options are considered.” (Emphasis added.) Humana failed to properly review the care and treatment received by Joan Smelik. Joan Smelik required, among other things, Chem-7 tests, a kidney-specialist, and participation in Humana disease management programs. Humana failed, as a part of a review of the healthcare services provided to Joan Smelik, to assess that the treatment provided was not appropriate and that other treatment options, Chem-7 tests, a kidney specialist, and Humana disease management programs, among other things, should have been considered and used. Humana’s failures to review health care services, assess health care services, and make recommendations for health care services are separate and apart from decisions as to whether a benefit is or is not covered under the HumanaHMO plan. Humana, in its written materials, has committed itself to be involved with the healthcare and treatment received by its members. Humana promised to do much more than simply make a determination whether a particular ordered test, referral to a specialist, or hospital stay is or is not covered under the HumanaHMO plan. The Plaintiffs are suing Humana for failure to live up to its obligations outside of the context of coverage decisions. Humana, at page xxiv of its Member Handbook, also describes concurrent review and medical case management. “Concurrent review. This level of review involves monitoring the patient’s stay in the hospital and/or skilled nursing facility to evaluate whether the current level of care they are receiving is appropriate for the medical condition and that discharge planning occurs to meet the patient’s need after discharge.” (Emphasis added.) Humana did not do the appropriate discharge planning for Joan Smelik after here stents were placed on October 10, 2000 to make sure that her needs were met after discharge. Follow-up on the stents should have included Chem-7 tests and a kidney specialist. Humana did not do the discharge planning to insure that these things were provided to Joan Smelik after the stents were placed on October 10, 2000. “Medical case management. This level of review involves having case management specialists identify potential cases of chronic or catastrophic disease. Alternative courses and places of treatment are evaluated and recommendations made with the primary care physician, the patient and a family member.” Joan Smelik had chronic kidney disease. Humana identified in its records that Joan Smelik had kidney disease (HUM00176 01/16/01 “I REVIEWED MBR’S REFERRAL HISTORY, MBR’S MEDICAL ISSUES CONSIST OF COPD, EMPHYSEMA AND RENAL DISEASE. . . . JUAN R. HERNANDEZ, LVN DME UNIT”) Humana, thus was aware that Joan Smelik had COPD, but she was not referred into Humana’s COPD disease management program. Humana was also aware that Joan Smelik had renal, or kidney, disease. Humana, having received billing information about the care and treatment received by Joan Smelik from Mann, was aware, or should have been aware, that Chem-7 tests were not being ordered and paid for. Moreover, having reviewed Joan Smelik’s referral history, Humana was aware, or should have been aware, that Joan Smelik had not been referred to a kidney specialist. Humana, despite the representations set forth above, did not make any recommendations to Mann, including recommendations that Joan Smelik receive Chem-7 tests, a kidney specialist, and be placed into, among other things, Humana’s COPD disease management program. As set forth previously, Humana’s failures to do what it said it was going to do, perform concurrent review and medical case management, are separate and distinct from any coverage decision with respect to whether a particular ordered test, referral to a specialist, or hospital stay is or is not covered under the HumanaHMO plan. Humana, also, on January 19, 2001 approved the use if the kidney-toxic drug Vioxx for Joan Smelik. (See MWM00260-265.) Humana negligently approved the drug Vioxx for Joan Smelik with full knowledge of Joan Smelik’s kidney disease, of the lack of Chem-7 tests for Joan Smelik, and of the lack of a referral to a kidney specialist for Joan Smelik. Humana’s approval of Vioxx and other kidney toxic medications for Joan Smelik in light of her medical history was grossly negligent. Humana failed to stop the use of Vioxx and other kidney toxic drugs for Joan Smelik that were prescribed for her during her care and treatment. This, again, is not a denial of benefit claim, but instead a claim that Humana was negligent with respect to the drugs it approved for Joan Smelik and that Humana, as a part of concurrent review, medical case management, disease management or quality assurance, failed to have Joan Smelik taken off of kidney toxic drugs. In addition to the representations set forth above, Humana, in its contracts and relations with its network providers, set out protocols, policies and procedures, and guidelines which it required its healthcare providers to abide by. Humana, as a specific example, required doctors, including Mann, to comply with Humana’s Physician Administration Manual. Humana had protocols, policies and procedures, and guidelines in numerous areas, including referrals, quality assurance, utilization management, medical records, and disease management programs. Humana kept for itself significant responsibilities in these areas, as described in, among other places, the contracts at issue in this case and Humana’s Physician Administration Manual. Humana failed to keep its own commitments. Humana further failed to monitor, audit for compliance, and/or review Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA to make sure the required protocols, policies and procedures, and guidelines were properly implemented. Humana, through its use of partial- and full-risk contracts with ACMG, PA; ACMG, IPA, PA; ACMC and SAPA also set up improper financial incentives related to the care and treatment of patients such as Joan Smelik. Humana failed to fully disclose the nature and scope of these financial incentives and that those incentives interfered with the doctor’s judgment and created an unacceptable conflict of interest. Humana is responsible for the health care services provided to Joan Smelik while she was under the care of Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA. Humana is responsible for ensuring the competence of its network providers. Further, Humana is directly liable for the pain, suffering, and untimely death of Joan Smelik because its arrangement with healthcare providers constitutes the negligent use of financial incentives that acted directly or indirectly as inducements to limit medically necessary services. This violates Texas law, including 28 TEX. ADMIN. CODE �11.1501 and constitutes negligence per se. That provision specifically provides: “An HMO may not use any financial incentive or make payment to a physician or provider that acts directly or indirectly as an inducement to limit medically necessary services.” Humana failed and/or negligently, grossly negligently, fraudulently, and/or maliciously carried out its duty to exercise ordinary care when making and/or controlling health care decisions. Further, Humana, in addition to the above, committed one or more acts of negligence, gross negligence, fraud and/or malice that include but are not limited to the following: (1) Humana failed to properly, adequately and/or timely provide or assure competent medical care and treatment for Joan Smelik and this includes, but is not limited to, proper diagnostic tests and referrals that would have saved Joan Smelik’s life; (2) Humana limited medical care and treatment of Joan Smelik due to managed care’s emphasis on money over medicine; (3) Humana failed to inform Joan Smelik about the limitations of managed care; (4) Humana placed budgetary concerns and profit levels above patient care and safety; (5) Humana entered into managed care relationships that endangered the life of Joan Smelik; (6) Humana failed to recognize the nature and persistence of Joan Smelik’s symptoms and failed to diagnose and treat her medical condition; (7) Humana limited medically necessary services to Joan Smelik as a result of financial incentives; (8) Humana supervised, regulated and/or interfered with the professional relationship between a member physician and a patient; and (9) Humana failed to adopt, implement and/or enforce policies and procedures requiring Joan Smelik to be seen by appropriate specialty physicians and to receive appropriate diagnostic studies and to have multiple toxic medication supervised appropriately. Further, the abuses of managed care include the financial incentives and pressure from Humana on Mann, ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA to limit the medically necessary care and treatment of Joan Smelik and the agreement between and among Humana, Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA to engage in inappropriate cost containment measures. The acts and/or omissions of Humana described above, along with those of the other Defendants herein, directly and proximately resulted in the severe renal failure experienced by Joan Smelik and her subsequent death on June 1, 2001. Joan Smelik met her untimely wrongful and premature death due to the negligence, gross negligence, fraud and/or malice of Humana, and the other Defendants herein. Plaintiffs have incurred substantial economic and non-economic damages as a direct and proximate result of the negligent, grossly negligent, fraudulent and/or malicious conduct of Humana, and the other Defendants herein. CAUSE OF ACTION I WRONGFUL DEATH AND SURVIVAL CAUSES OF ACTION ASSERTED AS AGAINST ALL DEFENDANTS Plaintiffs reallege and incorporate by reference all previous and subsequent paragraphs herein. This action arises out of the facts and circumstances surrounding the negligent, grossly negligent, fraudulent and/or malicious treatment of Joan Smelik while she was a patient and/or customer of Defendants Mann, Campbell, ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA. The allegations of negligence and gross negligence are set forth above and below. This suit is brought by authority of the Texas Wrongful Death Statute, Texas Civil Practice and Remedies Code, Chapter 71, Subchapter A, �� 71.001-71.011, and the Texas Survival Statute, Chapter 71, Subchapter B, �� 71.021 et seq. of the Texas Civil Practice and Remedies Code and/or Title 4, �� 71 .021 et seq. of the Texas Revised Civil Statutes. John Smelik is the surviving husband of Joan Smelik and is also the executor of the estate of Joan Smelik. Janice Smelik is the surviving daughter of Joan Smelik. John Andrew Smelik is the surviving son of Joan Smelik. As a direct and proximate result of the negligence of the Defendants herein, the Plaintiffs, John Smelik, individually and as executor of the estate of Joan Smelik, Janice Smelik, and John Andrew Smelik have suffered the past and future loss of Joan Smelik’s love, care, maintenance, support, services, advice, counsel, the past and future loss of companionship and society, and the past and future emotional pain, mental anguish, torment, and suffering experienced by the Plaintiffs due to the untimely wrongful death of Joan Smelik. Plaintiffs John Smelik, Janice Smelik, and John Andrew Smelik have further suffered pecuniary loss, loss of consortium, loss of companionship and society, and mental anguish. These damages were suffered in the past and will be suffered for the rest of their lives. Plaintiffs are seeking in this lawsuit past and future pecuniary loss, past and future loss of companionship and society and past and future mental anguish. There is a survival action brought as well on behalf of Joan Smelik for the extreme pain and suffering she endured due to the negligence, gross negligence, fraud and/or malice of the Defendants in the lawsuit. The Plaintiffs seek herein as against all of the Defendants, under wrongful death and survival causes of action, the Plaintiffs’ actual damages, punitive damages, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law. CAUSE OF ACTION II NEGLIGENCE, PROFESSIONAL NEGLIGENCE, GROSS NEGLIGENCE, FRAUD AND/OR MALICE ASSERTED AS AGAINST ALL DEFENDANTS 20. Plaintiffs reallege and incorporate by reference all previous and subsequent paragraphs herein. 21. 22. The acts and/or omissions of Mann, ACMG, PA; ACMG, IPA, PA; ACMC, SAPA, Humana, and Campbell constitute negligence, professional negligence, gross negligence, fraud and/or malice. The acts and/or omissions described herein by the Defendants, when viewed objectively from the standpoint of Defendants at the time of this occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and these Defendants, singularly or together, had actual subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety or welfare of others. Plaintiffs are entitled to exemplary damages as a result of the negligence, gross negligence, fraud and/or malice of the Defendants as set forth herein. With respect to the wrongful death claims, Plaintiffs specifically intend to utilize a gross negligence standard as permitted by the Texas Constitution. 23. 24. Plaintiffs seek as against all of the Defendants herein, due to their negligence, professional negligence, gross negligence, fraud and/or malice, the Plaintiffs’ actual damages, punitive damages, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law. 25. CAUSE OF ACTION III HMO ACT, INSURANCE CODE AND DTPA VIOLATIONS ASSERTED AS AGAINST DEFENDANT HUMANA 26. Plaintiffs reallege and incorporate by reference all previous and subsequent paragraphs herein. 27. 28. Humana has violated Article 20A.14 of the Texas HMO Act, Article 21.21 of the Insurance Code, and the Texas Deceptive Trade Practices � Consumer Protection Act (“DTPA”). 29. 30. Humana has violated DTPA � 17.46(b)(5), (7), (12) and (24). Humana misrepresented the services and benefits of its HumanaHMO plan to the Plaintiffs. Humana represented that the HumanaHMO plan had benefits and services that the plan did not have. Humana also failed to disclose information about the HumanaHMO plan and its contracts with healthcare network providers and this failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. Humana violated the DTPA knowingly and/or intentionally. The Plaintiffs relied to their detriment on the misrepresentations and omissions from Humana and the Plaintiffs have incurred damages as a direct and proximate result of Humana’s violations of the DTPA. Humana received pre-suit notice of the Plaintiffs claims set forth herein. 31. 32. Humana violated Article 20A.14(l) if the Texas HMO Act due to the fact that the contracts between Humana and Mann, ACMG, PA; ACMG, IPA, PA; ACMC, and SAPA contained financial incentives that acted directly or indirectly as an inducement to limit medically necessary services to Joan Smelik. 33. 34. Humana violated Article 21.21 of the Texas Insurance Code by issuing the member Handbook that misrepresented the benefits or advantages of being a Humana enrollee. Humana misrepresented its HMO insurance plan in numerous ways including what Humana would do in terms of utilization management, concurrent review, and medical case management for its enrollees and in terms of health programs that enrollees would have access to. As set forth herein, Mann, ACMG, PA; ACMG, IPA, PA; ACMC and SAPA and their staff, doctors, nurses, and employees failed to follow the third-party policies and procedures of Humana and Humana failed to provide monitoring and oversight of compliance or the lack of compliance by the foregoing entities with Humana policies and procedures. 35. 36. Plaintiffs seek, for Humana’s statutory violations as set forth above, economic damages, additional damages, punitive damages, reasonable and necessary attorneys’ fees through trial and all appeals in this matter, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law. 37. CAUSE OF ACTION IV IN THE ALTERNATIVE ONLY ERISA � 502(a)(1)(B) CLAIM ASSERTED AS AGAINST DEFENDANT HUMANA 38. Plaintiffs reallege and incorporate by reference all previous and subsequent paragraphs herein. 39. 40. This cause of action is asserted by the Plaintiffs as against Humana in the alternative only. 41. 42. The Plaintiffs bring a claim against Humana under ERISA � 502(a)(1)(B) to recover benefits denied to Joan Smelik. This claim does not extend to the services that Humana committed to perform but failed to perform including, but not limited to, utilization management, concurrent review, medical case management and quality assurance. This claim does not extend to the acts and/or omissions set forth herein on the part of Humana that violate Texas state laws and that serve to form the bases of common law causes of action for negligence, professional negligence, gross negligence, fraud and/or malice. The Plaintiffs seek to recover as against Humana under ERISA � 502(a)(1)(B) only for the monetary value of the benefits that Humana, as a part of a coverage decision, denied to Joan Smelik. 43. 44. Plaintiffs seek as against Humana, under ERISA � 502(a)(1)(B), the monetary value of the benefits denied to Joan Smelik as a part of a coverage decision made by Humana, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law. 45. DAMAGES OF THE ESTATE OF JOAN SMELIK 46. Plaintiffs would show that as a direct and proximate result of the negligence and gross negligence of Defendants as set forth herein and above, Joan Smelik sustained injuries and damages which ultimately resulted in a painful and agonizing death in June 2001. 47. 48. Accordingly, the Estate of Joan Smelik has sustained actual damages in the form of physical pain and suffering of Joan Smelik, conscious pain and mental anguish of Joan Smelik, severe physical impairment of Joan Smelik, reasonable and necessary expenses for emergency medical care and life saving treatment, and reasonable funeral and burial expenses suitable to Joan Smelik’s station in life. Plaintiffs will seek damages for the estate in a fair and reasonable sum substantially in excess of the minimum jurisdictional limits of this Court. 49. DAMAGES OF JOHN PETER SMELIK, JANICE SMELIK, AND JOHN ANDREW SMELIK 73. Plaintiffs will show that as a direct and proximate result of the negligence and gross negligence of the Defendants as set forth herein and above, which brought about the death of a loving wife and mother, Joan Smelik, Plaintiffs John Smelik, Janice Smelik, and John Andrew Smelik have suffered the past and future loss of Joan Smelik’s love, care, maintenance, support, services, advice, counsel, the past and future loss of companionship and society, and the past and future emotional pain, mental anguish, torment, and suffering experienced by Plaintiffs due to the untimely wrongful death of Joan Smelik. Plaintiffs John Smelik, Janice Smelik, and John Andrew Smelik have further suffered pecuniary loss, loss of consortium, loss of companionship and society, and mental anguish. These damages were suffered in the past and will be suffered for the rest of their lives. Plaintiffs seek past and future pecuniary loss, past and future loss of companionship and society and past and future mental anguish. Plaintiffs seek damages that is substantially in excess of the minimum jurisdictional limits of this Court. CONDITIONS PRECEDENT 74. All conditions precedent have been performed or have occurred as required by Texas Rule of Civil Procedure 54. DEMAND FOR JURY TRIAL 75. Plaintiffs hereby demand that this case be tried to a jury. Plaintiffs have paid the applicable jury fee. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the Plaintiffs respectfully pray for the following:A. That Defendants be cited to appear and answer herein;B. C. That after trial on the merits, the Court enter judgment against all of the Defendants, under wrongful death and survivor causes of action, and in favor of the Plaintiffs for actual damages, punitive damages, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law;D. E. That after trial on the merits, the Court enter judgment against all of the Defendants, due to all of the Defendants’ negligence, professional negligence, gross negligence, fraud and/or malice, and in favor of the Plaintiffs for actual damages, punitive damages, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law;F. G. That after trial on the merits, the Court enter judgment against Defendant Humana, due to Defendant Humana’s violations of the Texas HMO Act, DTPA and the Texas Insurance Code, and in favor of the Plaintiffs for economic damages, additional damages, reasonable and necessary attorneys’ fees through trial and all appeals in this matter, punitive damages, costs of court, pre-judgment interest, and post-judgment interest, as allowed by law;H. I. That after trial on the merits, the Court enter judgment against defendant Humana, under ERISA � 502(a)(1)(B), and in favor of the Plaintiffs for the monetary value of the benefits denied to Joan Smelik as a part of a coverage decision made by Humana, costs of court, pre-judgment interest and post-judgment interest, as allowed by law; andJ. K. For all such further and additional relief to which the Plaintiffs are justly entitled at law or in equity.L. Respectfully submitted, THE POWELL LAW FIRM By:__________________________ Jon Powell Texas State Bar No. 00797260 314 East Commerce Street, Suite 710 San Antonio, Texas 78205 Telephone: (210) 225 9300 Fax: (210) 225 9301 Brant Mittler Attorney at Law Texas State Bar No. 24032867 4319 Medical Drive Suite 131-363 San Antonio, Texas 78229 Telephone: (210) 561-5550 Fax: (210) 561-5551 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing instrument was forwarded via facsimile and certified mail, return receipt requested to all counsel of record on this the 5th day of October, 2004, pursuant to the Texas Rules of Civil Procedure: Steve Shaver WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP. 5000 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 (214) 698-8000 Telephone (214) 698-1101 Facsimile COUNSEL FOR HUMANA HEALTH PLAN OF TEXAS, INC. Keith A. Kendall THORNTON, SUMMERS, BIECHLIN DUNHAM & BROWN, L.C. Airport Center, Suite 300 10100 Reunion Place San Antonio, TX 78216-4186 210-342-5555 Telephone 210-525-0666 Facsimile COUNSEL FOR FRED CAMPBELL, JR. David Stephenson CLEMENS & SPENCER 112 E. Pecan Street, Suite 1500 San Antonio, Texas 78205 (210) 227-7121 Telephone (210) 227-0732 Facsimile COUNSEL FOR ALAMO CITY MEDICAL GROUP, P.A. AND MICHAEL W. MANN, M. D. Wayne B. MasonErin L. WilliamsMichael C. Diksa SEDGWICK, DETERT, MORAN & ARNOLD, LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 (469) 227-8200 Telephone (469) 227-8004 Facsimile COUNSEL FOR ALAMO CITY MEDICAL GROUP, I.P.A., P.A.; ALAMO CITY MEDICAL CORPORATION AND SAN ANTONIO PHYSICIAN’S ALLIANCE _____________________________ Jon Powell

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