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A Palm Beach County, Fla., woman who says her HMO and one of its agents lied to her about access to a specialist should be permitted to pursue a lawsuit in state court, according to a ruling by U.S. District Court Judge Donald Middlebrooks in West Palm Beach. Linda Flower suffers from multiple sclerosis. She alleges in the suit that Humana Inc. agent Bill Torres assured her when she was shopping for a new Medicare HMO plan in August 2000 that Humana would cover treatment by Dr. William Sheremata. Sheremata is a nationally renowned neurologist at the University of Miami. However, about eight months later when Flower tried to get treatment after her condition worsened, her primary care physician told her that he could not authorize care because Sheremata was “out of network.” Flower, who has suffered from MS since the mid-1980s, and who had been treated by Sheremata since 1992, ended up going to him and paying for her care out-of-pocket. Jerry Lewis, assistant vice president for communication at the University of Miami, said Sheremata is a Humana provider for patients who require a certain level of care, but the company must give patients approval to see him. Pam Gadinsky, a Humana spokeswoman, said Sheremata is part of its network, but was not in Flower’s service area. She would not elaborate. “Humana knew where she lived” when she signed up for the policy, says Gary Farmer, a partner with Gillespie Goldman Kronengold & Farmer in Fort Lauderdale, Fla., who represents Flower. Humana positioned the case as one of denial of care and told her that the services she sought were available from other doctors in the network. Flower’s complaint doesn’t say she was denied care. The three-count complaint that she filed in Palm Beach Circuit Court against Humana in January instead alleges that the company committed fraud when its agent lied to Flower about her ability to receive treatment from Sheremata. The suit complains that Humana intentionally inflicted emotional distress and that the insurance company engaged in a civil conspiracy. Flower, who has been disabled and eligible for Medicare benefits since 1996, says she specifically requested confirmation that Sheremata was a network provider under Humana’s Gold Plus Plan — its Medicare HMO — and that Torres assured her that he was. Torres no longer works for Humana, according to a company spokeswoman, who said he left on his own accord. To fall under the Medicare Act, Flower’s claim has to be inextricably intertwined with a claim for benefits, meaning that it would have had to have involved a denial of coverage for care. In her case, her lawyers argued, the claim wasn’t about benefits, but about “pre-plan misconduct.” “We are talking about misconduct that occurred before she signed up for the policy,” said Farmer. “Since the conduct occurred before she signed up for the plan, her claims could never be inextricably intertwined with a claim for benefits.” Middlebrooks’ seven-page ruling found that for a claim to arise under the Medicare Act, it had to be inextricably intertwined with a claim for Medicare benefits. In this case, he found no such tie-in. “She is not seeking reimbursement of wrongfully denied benefits, but rather seeking damages for the defendants’ allegedly fraudulent pre-plan conduct,” Middlebrooks wrote. Though he fell short of accusing Humana of bad faith, Middlebrooks did award Flower attorney fees and costs, which Farmer said totaled about $16,000. Farmer said the case might not have broader implications for others suing their managed care company, but that had the case not been remanded it “would have set a bad precedent and encouraged other HMOs to take the same position as Humana.”

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