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A federal judge in Miami could decide today whether to dismiss a massive, class action lawsuit against Humana’s health maintenance organization, filed on behalf of millions of patients nationwide. Humana’s motion to dismiss the case, along with several other actions expected today, are the most recent developments in the nation’s latest big class action, following the suits on Big Tobacco. Dozens of lawyers, including David Boies, who helped win a verdict to break up Microsoft, and Richard Scruggs, best known for fighting Big Tobacco, will appear before U.S. District Judge Federico Moreno as they take on Humana and the nation’s HMOs. A number of class action suits against Humana were consolidated this year under Moreno. And plaintiffs — represented by some 40 law firms from around the U.S. — have added six other HMOs to their case. They are awaiting word from the Federal Judicial Panel on Multidistrict Litigation on the additional consolidations. The lawsuits, filed on behalf of a potential 80 million subscribers, seek nothing less than to change the way HMOs do business — the same way Big Tobacco lawsuits sought to alter the way cigarettes are marketed and sold. They allege that HMOs secretly provided financial incentives to doctors to steer patients to cost-cutting treatments. Moreno will hold three hearings on the topic today. He will hear a motion from a Broward, Fla., ophthalmologist who is joined by the Broward County Medical Association in a lawsuit against Humana. Dr. Seth Cutler alleges that Humana’s reimbursement practices have hurt the doctors and their ability to provide medical care to their patients. He is seeking to remand the suit to state court. Also, Moreno will hear a bevy of requests from two other defendants, Foundation Health Systems and Pacificare Health Systems. The requests include returning their cases to Mississippi court, where rulings have been more favorable to them; dismissing their cases; and remitting the case for arbitration. But lawyers say the most significant action of the day comes at 9:30 a.m., when lawyers for Humana will argue for a dismissal of the entire class action case. Moreno, who has promised litigators a speedy ruling, could make a ruling on the spot. Humana’s plea for dismissal centers on the argument that no injury has occurred to a patient — that the case merely states that an injury could occur because of Humana’s cost-cutting practices. The company, along with the other HMOs, will waste no time bringing up a recent victory for HMOs in the courts. Lawyers for Humana, the law firm O’Melveny & Myers of Washington, D.C., and Adorno & Zeder of Miami, have already sent Moreno a copy of a Monday ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia. The court upheld a lower court dismissal of a complaint against Aetna that had sought class action status and had alleged violations of the Racketeer Influenced and Corrupt Organizations Act (a significant part of the Miami cases). That case alleged that Aetna had attracted potential customers by saying it was dedicated to quality medical care, then encouraged systemwide cost-cutting. Furthermore, in June the U.S. Supreme Court ruled that patients can’t sue HMOs in federal court for restricting medical care out of cost concerns because that’s precisely why HMOs were created. The anti-HMO lawyers in Miami, aware of the impact the most recent case could have on their own, sent a 10-page brief to Moreno laying out how their case is different. “Our case is broader,” said Sid Backstrom, an associate of Scruggs’, adding that his case alleges extortion of doctors and that Humana took money under false pretenses, among other charges. Are the anti-HMO lawyers concerned about the fact that the courts have ruled in favor of HMOs of late? “I wouldn’t say we’re worried,” said Backstrom. “Obviously you want every ruling to go your way.”

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