SECOND AMENDED COMPLAINT

SECOND AMENDED COMPLAINT

Plaintiff, Linda R. Flower, sues Defendants, Humana, Inc., (“Humana, Inc.”) Humana Medical Plan, Inc. (“Humana Medical”) (referred to collectively as “Humana”), and Bill Torres and alleges:

GENERAL ALLEGATIONS

1. This is an action for damages that exceed $15,000, exclusive of interest and costs.
   
   
2. Defendant Humana, Inc. is a Delaware corporation that provides healthcare services coverage, independently and through its wholly owned subsidiaries, to subscribers throughout the United States, including Palm Beach County, Florida. Humana Inc. regularly conducts business in Palm Beach County, independently and through its subsidiary, Humana Medical Plan.
   
   
3. Defendant Humana Medical is a Florida corporation doing business in Palm Beach County, Florida. Humana Medical Plan provides healthcare services coverage to plan subscribers, including the Humana Gold Plus Plan.
   
   
4. Defendant Bill Torres is a resident and citizen of Palm Beach County, Florida who at all material times was a sales representative, agent and employee of Humana Inc. and/or Humana Medical and acted on their behalf. Mr. Torres markets and sells health services coverage to Medicare eligible individuals, including Ms. Flower.
   
   
5. Plaintiff, Linda R. Flower is a resident and citizen of Palm Beach County, Florida. At all material times, Plaintiff was a prospective member or member of the Humana Gold Plus Plan.
   
   
6. At all material times, Humana Inc. dominated activities of Humana Medical to the extent that Humana Medical manifests no separate corporate interest of its own, but functioned solely to achieve the purposes of Humana, Inc.
   
   
7. Humana, Inc. fully subsidizes its alter ego, Humana Medical, and makes all policy decisions concerning marketing and coverage.
   
   
8. The two corporations, Humana, Inc. and Humana Medical, present a public image of a single enterprise with Humana Medical and Humana, Inc. making policy decisions under the letterhead of Humana, Inc.
   
   
9. Humana, Inc.’s domination and control over Humana Medical and, in particular, over Plaintiff’s involvement with Humana coverage, is evidenced by the following:
   1. Humana, Inc. provided the “Grievance/Appeal Request Form”
      Plaintiff was required to complete to challenge Humana’s
      denial of coverage;
      
      
   2. Plaintiff was required to direct all complaints or requests for review of the denial of coverage to Humana, Inc., and Humana, Inc. corresponded with Plaintiff during the appeal or grievance procedure;
      
      
   3. Humana, Inc. made the final decision on appeal to uphold the denial of coverage;
      
      
   4. All marketing materials for the Humana Gold Plus Plan were overseen, created, approved and printed by Humana, Inc.
      
      
   5. After this lawsuit was originally filed, removed to federal court and remanded to state court, Humana, Inc. made payment to Plaintiff, on behalf of all Defendants, of the attorneys’ fees and costs awarded to Plaintiff by the federal court for the wrongful removal; and
      
      
   6. When objections were raised by all Defendants to production of certain records and information, the affidavit filed on behalf of all Defendants in support of Defendants’ Motion for Entry of Prospective Protective Order was prepared and signed by a person employed solely by Humana, Inc.
   
   
   
10. At all material times, Humana, Inc. has publicly and officially assumed the financial obligations of Humana Medical Plan.
    
    
11. In addition to the foregoing, the two corporations further present a public image of a single enterprise by advertising and referring to themselves as one entity, “Humana.”
    
    
12. At all material times, Humana was and is a health maintenance organization (“HMO”).
    
    
13. Under Fla. Stat. § 641.30(2) (2002), a health maintenance organization (“HMO”) is not subject to the provisions of the insurance code. HMOs owe a higher duty to their insureds, both under their contracts and pursuant to Florida law, than traditional indemnity-based insurance carriers. Many of the provisions of the laws regulating HMO’s (Chapter 641, Fla. Stat.) were implemented with the express intention of ensuring that HMO’s “deliver high-quality health care to their subscribers.” Fla. Stat. § 641.48 (2002). Unlike an indemnity insurer, an HMO is involved in the pre-authorization of coverage for prescribed medical care and treatment, and as such it manages and controls the provision of prescribed health care. Florida law shows the depth and extent of an HMO’s involvement in the determination as to whether prescribed care will be received by the subscriber, as opposed to involvement of traditional indemnity or reimbursement insurers.
    
    
14. “A health maintenance organization shall ensure that the health care services provided to its subscribers shall be rendered under reasonable standards of quality of care which are, at a minimum, consistent with the prevailing standards of medical practice in the community.” Fla. Stat § 641.185(a) (2002). Where an HMO subscriber is unable to afford prescribed medical care and treatment absent HMO coverage, the HMO in effect determines whether the prescribed care will be received by the subscriber.
    
    
15. An HMO is a managed care institution that contracts with its subscribers to provide health care services, including physician care, either directly or through relationships with its providers. Fla. Stat. §§ 641.19(4), (12) and (13) (2002). Under this managed care arrangement, the HMO must use a primary care physician who is responsible for coordinating all of the subscriber’s treatment. Fla. Stat. § 641.19(13)(e) (2002). Thus, the primary care physician is an agent of the HMO and the HMO, through the primary care physician, is responsible for providing and/or coordinating the subscriber’s medical care and treatment.
    
    
16. The state requires that an HMO applicant provide a statement describing the manner by which health care services “shall be regularly available,” and the applicant must show the network of providers it will make available to its subscribers. Fla. Stat. §§ 641.49(g) & (h) (2002). A certificate to operate as a managed care company will be issued only upon a showing that the HMO has the ability to provide quality of care consistent with the prevailing medical standards within the community. Fla. Stat. § 641.495(1) (2002). An HMO must ensure that health care services, including physician services, are accessible to subscribers with reasonable promptness with respect to the geographical location and the hours of operation. Fla. Stat. § 641.495(4) (2002).
    
    
17. HMO’s are also required to set up quality assurance programs to ensure that the HMO’s provide health care services under reasonable standards of quality of care, consistent with the prevailing standard of care within the community. Fla. Stat. § 641.51(1) (2002). A physician’s diagnosis or prescription, or opinion regarding the proper course of treatment, is not subject to modification by an HMO. Fla. Stat. §641.51(3) (2002). A subscriber has the right to obtain a second opinion if he or she disagrees with the HMO provider’s professional judgment, and any provider’s professional judgment regarding the proper course of treatment, derived after a second opinion, shall be controlling as to the treatment obligation of the HMO. Fla. Stat. §641.51(5) (2002).
    
    
18. In fact, HMOs, like hospitals, can also be held liable for medical negligence, both for their own negligence and for vicarious liability for the acts of their employees or agents (although no such claim is asserted here). The legislature has expressly included HMO’s within its definition of “health care providers” against whom an action for medical malpractice may be made. Fla. Stat. §§ 766.102 & 768.50 (2002); see also Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993); Sova Drugs, Inc. v. Barnes, 661 So. 2d 393 (Fla. 5^th DCA 1995).
    
    
19. Under Florida law, as a general rule a fiduciary relationship exists whenever one party has been retained or is under a duty to act for or give advice to another. See Doe v. Evans, 814 So.2d 370 (Fla. 2002); Atlantic National Bank of Florida v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985). With regard to the relationship between insured and insurer, Florida law is well established. Where an entity which provides coverage or indemnification for covered events also undertakes an additional duty vis-a-vis its insured, the relationship is much more than merely debtor-creditor and, therefore, an insurer owes the insured a fiduciary duty to act in good faith and with due regard to the rights of the insured. See Time Ins. Co., Inc. v. Burger, 712 So.2d 389, 391 (Fla. 1998); State Farm Mutual Automobile Ins. Co. v. LaForet, 658 So.2d 55, 58 (Fla. 1995); Baxter v. Royal Indemnity Co., 285 So.2d 652, 655-56 (Fla. 1^st DCA 1973).
    
    
20. The legislature intended to confer upon HMOs a greater and much more significant duty with regard to the handling of claims for coverage for prescribed medical treatment than that conferred upon traditional, indemnity-based insurance companies. Unlike traditional insurance companies, HMOs have an obligation and duty to ensure that quality medical care is provided, and not to question the judgment of the HMO’s participating providers. In this regard, the relationship between an HMO and a subscriber is very similar to that between an insured under an indemnity policy and the insurer where the insured has been sued by a third party and the insurer is providing a defense -- i.e., a third-party claim. The Fourth District Court of Appeals has held that an HMO is analogous to a third-party liability insurer, and has expressly stated that the relationship between an HMO and its subscriber “is certainly more than one of debtor and creditor.” Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4^th DCA 2001).
    
    
21. Given the extent of an HMO’s duties and responsibilities with regard to the handling of claims for coverage for prescribed medical treatment, and the control an HMO exercises over the provision of prescribed medical treatment, there exists a fiduciary relationship between HMO and subscriber that does not exist with regard to traditional indemnity-based insurance companies.
    
    
22. As a result, Humana Inc. and Humana Medical Plan owed Plaintiff, as a member of the Humana Gold Plus Plan, a fiduciary duty in reviewing and deciding any and all claims for authorization or coverage for prescribed medical care and treatment.
    
    

    COUNT I
    FRAUD IN THE INDUCEMENT

23. Plaintiff re-alleges paragraphs 1 through 22 as though fully set forth herein.
    
    
24. Ms. Flower was first diagnosed with multiple sclerosis (“MS”) in the mid 1980’s. MS is a severe and potentially debilitating neurological condition that is particularly susceptible to exacerbation, worsening or increased impairment as a result of excessive stress. Since January 1992, Ms. Flower has been under the care of William A. Sheremata, M.D., Professor of Neurology, Department of Neurology, University of Miami Medical School, Miami, Florida. Dr. Sheremata is one of the world’s foremost experts on the treatment of MS, to the point that nearly all neurologists in the South Florida area, after having diagnosed their patients with MS, refer those patients to Dr. Sheremata for treatment.
    
    
25. As a result of her MS, as of November 30, 1996 Ms. Flower was declared disabled and eligible for Medicare benefits. Prior to enrolling in the Humana Gold Plus Plan, Ms. Flower received her health services coverage through a Medicare HMO Plan administered by Prudential. In the summer of 2000, Prudential announced its intention to pull out of Palm Beach County. In August of 2000, Ms. Flower contacted Humana to inquire about coverage. Her primary concern was, and has always been, that she remain under Dr. Sheremata’s care.
    
    
26. In August 2000, Ms. Flower met with Bill Torres, a sales representative, agent, and employee of Humana, Inc. and/or Humana Medical, at her home to obtain information about the Humana Gold Plus Plan (“the Plan”).
    
    
27. At that time and place, Bill Torres, as an agent of Humana, Inc. and/or Humana Medical, made material misrepresentations that induced Ms. Flower to enroll in the Humana Gold Plus Plan. But for this pre-Plan misconduct, Ms. Flower would never have enrolled in the Humana Gold Plus Plan.
    
    
28. Specifically, Ms. Flower explained to Mr. Torres she had MS and she needed the plan to cover her longtime treating neurologist, Dr. Sheremata. Mr. Torres told Ms. Flower that Dr. Sheremata was a Humana doctor, that she would have no problems whatsoever continuing to treat with him, and that said treatments would be covered by Humana. In addition, Mr. Torres showed Plaintiff Humana’s Provider Booklet, which indicated that Dr. Sheremata was a participating network physician under the Plan, and told her as long as Dr. Sheremata was “in the book” she could continue to see him. Finally, Mr. Torres encouraged Plaintiff to enroll immediately, before the Humana Gold Plus closed its enrollment period, because the Plan could only take a limited number of new enrollees. This statement was meant to induce Plaintiff to forego additional investigation of the Plan and coverage for Dr. Sheremata and rely instead on the representations of Mr. Torres and the information contained in the Provider Booklet.
    
    
29. However, at the time that Mr. Torres showed Plaintiff the Provider Booklet, Mr. Torres and Humana knew or should have known that the Provider Booklet contained unreliable and incorrect information as to network providers. Internal Humana documents, as well as letters from Humana to Plaintiff prepared during the Grievance/Appeal process, show that Humana was aware that its Provider Booklets were unreliable and contain misleading and false information. In one letter to Plaintiff, Humana wrote: "The plan would like to apologize for any inconvenience caused in discovering that some of our doctors, though listed in our directory, are not participating providers with our plan. Unfortunately, their names were inadvertently left in our directory.” A Humana internal document or computer entry, particular to the Plaintiff, states that “the [provider] directory is never up to date which needs to be explained to the member [Plaintiff].”
    
    
30. In March 2001, Ms. Flower was experiencing some problems associated with her MS. She immediately called her primary care physician, Dr. Jeffrey Dresner, a Board Certified Internist, to obtain the appropriate referral to Dr. Sheremata. Dr. Dresner’s office refused to authorize Ms. Flower to see Dr. Sheremata because he was out of the network, contrary to representations made by Mr. Torres at the enrollment meeting and information contained in the Provider Booklets shown to Ms. Flowers by Mr. Torres.
    
    
31. The conduct described above was motivated by a desire to simply enroll Ms. Flower in the Plan and accept her premium dollars without regard to her medical condition and treatment therefore, and her specific and overriding request that any plan under which she was to enroll allow treatment by Dr. Sheremata.
    
    
32. Upon information and belief, the above-described conduct was part of an overall plan, design and scheme to lure Medicare eligible persons, including Ms. Flower, into the Humana Gold Plus Plan to increase corporate profits at the expense of the subscribers’ physical and emotional well being, and without regard to the patients’ medical needs or treatment history.
    
    
33. Through the conduct described above, Defendants made misrepresentations and omissions of material fact to Ms. Flower. Defendants made said misrepresentations and omissions with knowledge of their falsity, or knowing they were without knowledge of their truth or falsity, and with the intent to induce Ms. Flower to rely on them in deciding to enroll in the Humana Gold Plus Plan instead of selecting an alternative coverage plan.
    
    
34. Ms. Flower reasonably and justifiably relied to her detriment on the material misrepresentations and omissions described above. At the time said known misrepresentations were made, Ms. Flower had no knowledge of their falsity.
    
    
35. As a direct and proximate result of the above-described material misrepresentations and omissions, Ms. Flower was obligated to retain attorneys to represent her interests in this matter, to whom she has agreed to pay reasonable attorneys’ fees and costs.
    
    
36. As a direct result of the above-described material misrepresentations, Ms. Flower forfeited an opportunity to attain coverage under Medicare or under another Medicare HMO Plan and suffered severe emotional distress, personal injury, economic and non-economic damages and loss as a direct result thereof.
    
    
37. Any and all conditions precedent to bringing this action have been met or waived.

    WHEREFORE, Plaintiff, Linda R. Flower, demands judgment for compensatory damages and costs, plus prejudgment interest on all out-of-pocket economic damages, against Defendants, Humana, Inc., Humana Medical Plan, Inc. and Bill Torres and for whatever and further relief this Court deems appropriate. Further, Plaintiff, Linda R. Flower, demands an award of attorneys’ fees under Sections 57.105(1) & (6) and 641.28, Fla. Stat., and/or pursuant to the provisions of the contract between the parties. Finally, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant to the requirements of Section 768.72, Fla. Stat. (2001).

    COUNT II
    NEGLIGENT MISREPRESENTATION IN THE INDUCEMENT

38. Plaintiff re-alleges paragraphs 1 through 22 and 24 through 37 as though fully set forth herein.
    
    
39. Through the conduct described above, Defendants made misrepresentations and omissions of material fact to Ms. Flower. Defendants knew or should have known that such misrepresentations and omissions were false when made, and/or said statements were made without knowledge as to their accuracy.
    
    
40. Defendants made such misrepresentations and omissions with the intent and/or expectation that Ms. Flower would rely on them in deciding to enroll in the Humana Gold Plus Plan instead of selecting an alternative coverage plan.
    
    
41. Ms. Flower reasonably and justifiably relied to her detriment on the material misrepresentations and omissions described above. At the time said known misrepresentations and omissions were made, Ms. Flower had no knowledge of their falsity.
    
    
42. As a direct and proximate result of the above-described material misrepresentations and omissions, Ms. Flower was obligated to retain attorneys to represent her interests in this matter, to whom she has agreed to pay reasonable attorneys’ fees and costs.
    
    
43. As a direct result of the above-described material misrepresentations, Ms. Flower forfeited an opportunity to attain coverage under Medicare or under another Medicare HMO Plan and suffered severe emotional distress, personal injury, economic and non-economic damages and loss as a direct result thereof.
    
    
44. Any and all conditions precedent to bringing this action have been met or waived.

    WHEREFORE, Plaintiff, Linda R. Flower, demands judgment for compensatory damages and costs, plus prejudgment interest on all out-of-pocket economic damages, against Defendants, Humana, Inc., Humana Medical Plan, Inc. and Bill Torres and for whatever and further relief this Court deems appropriate. Further, Plaintiff, Linda R. Flower, demands an award of attorneys’ fees under Sections 57.105(1) & (6) and 641.28, Fla. Stat. and/or pursuant to the provisions of the contract between the parties. Finally, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant to the requirements of Section 768.72, Fla. Stat. (2001).

    COUNT III
    INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

45. Plaintiff re-alleges paragraphs 1 through 22 and 24 through 37 as though fully set forth herein.
    
    
46. In March 2001, Plaintiff was experiencing some associated problems with her MS, at which point she attempted to schedule an appointment with Dr. Sheramata, with whom she had previously treated for her MS for approximately ten (10) years but whom she had not seen since 1999. Plaintiff contacted her primary care physician under the Humana Gold Plus Plan, Dr. Jeffrey Dresner, to obtain a referral to Dr. Sheremata. Despite having conveyed the urgency of her condition and the need for an immediate referral, Dr. Dresner did not respond to Plaintiff for approximately ten (10) days, at which point Dr. Dresner’s assistant, Kiley, advised that Humana had denied the request for referral to Dr. Sheremata because, according to Humana, Dr. Sheremata was not in Plaintiff’s network of treating physicians.
    
    
47. When advised of the rejection of the referral to Dr. Sheremata, Plaintiff contacted Dr. Sheremata who advised Plaintiff that, given her description of her condition, it was imperative that Dr. Sheremata see Plaintiff right away. On April 18, 2001, Plaintiff saw Dr. Sheremata in his office and underwent an examination, at which time Dr. Sheremata advised Plaintiff that her disease had become active and required immediate treatment. In fact, Dr. Sheremata wanted to admit Plaintiff to Jackson Memorial Hospital in Miami to provide further treatment and to prevent permanent damage, but he was unable to do so because Humana would not cover the admission and Plaintiff could not afford same without coverage. The required admission would have been for seven to ten (7-10) days, and a cost believed to be approximately $3,500 per day for the hospital room alone, without regard to the cost of testing, treatment and supplies.
    
    
48. Following her April 18, 2001 visit to Dr. Sheremata, Plaintiff began searching for another neurologist to admit her to the hospital and provide treatment for her MS which would be covered under her Humana Gold Plus Plan. Dr. Dresner referred Ms. Flower to Dr. Steven Shavitz, a neurologist who treats MS, but upon a call to Dr. Shavitz’s office to schedule an appointment, Plaintiff was advised that Dr. Shavitz no longer accepted Humana patients. Similarly, Plaintiff contacted Dr. Linda Pao, another neurologist who treats MS patients, but was likewise advised that Dr. Pao either no longer accepted Humana patients or was leaving the area. Plaintiff was finally able to find a neurologist who treated MS and who accepted Humana patients, Dr. Jose Zuniga, but Plaintiff was told she would have to wait at least several weeks for an appointment.
    
    
49. On April 24, 2001 Plaintiff filed a “Grievance/Appeal” with Humana, challenging the denial of coverage for treatment by Dr. Sheremata. In her “Grievance/Appeal Request Form,” Plaintiff referred specifically to the “crisis” which was the exacerbation of her MS and her inability to obtain treatment from the doctor who had treated her MS for over ten (10) years. Plaintiff further noted that a denial of care could result in permanent injury. Plaintiff spent the following month corresponding with Humana and challenging the denial of coverage, including sending a letter to Humana on May 28, 2001 that included a medical records release authorization signed by Plaintiff to enable Humana to obtain records it claimed were necessary to review the denial of coverage. Despite the fact that Plaintiff had just provided the authorization to release medical records to Humana, Humana sent Plaintiff a letter on May 30, 2001 advising that “after careful review,” it had upheld the decision to deny coverage. Humana further advised her that because this was a “Federal contract,” any further appeals would have to be filed through the Center for Health Dispute Resolution (“CHDR”), but that Plaintiff would have to wait until some unidentified time in the future when Humana would forward the “necessary information” to the CHDR.
    
    
50. Plaintiff filed an appeal with the CHDR. In a letter dated June 12, 2001, the CHDR advised Plaintiff that it had upheld Humana’s denial of coverage, and advised Plaintiff of the steps necessary to challenge this determination. On June 15, 2001, Plaintiff followed the instructions from the CHDR and submitted her written request for reconsideration. However, a few days later Plaintiff received a letter from Humana dated June 18, 2001, which acknowledged Humana’s receipt of Plaintiff’s grievance/appeal, indicating to Plaintiff that Humana had undertaken a new review of the denial of coverage for Dr. Sheremata. As requested by Humana in its June 18, 2001 letter, Plaintiff completed and sent to Humana a second medical records release authorization. Humana’s June 18, 2001 letter was sent to Plaintiff to confuse her with regard to the appropriate forum and time-frame for further prosecution of her appeal of the CHDR’s determination.
    
    
51. By this time Plaintiff had found another neurologist in Palm Beach County, Dr. Bezner, who treated MS and who accepted Humana patients. Dr. Bezner could not see Plaintiff until July 13, 2001, but because she was desperate for treatment and unable to afford same without coverage, Plaintiff sought to schedule the July 13, 2001 appointment with Dr. Bezner. Plaintiff called her primary care physician, Dr. Dresner, for a referral and authorization to see Dr. Bezner. Dr. Dresner’s staff asked why Plaintiff had not seen Dr. Shavitz under the prior referral obtained by Plaintiff, and Dr. Dresner’s office was surprised to learn from Plaintiff that Dr. Shavitz no longer accepted Humana patients.
    
    
52. However, prior to the July 13 scheduled visit with Dr. Bezner, Plaintiff began suffering a further exacerbation of her MS. Feeling she could not safely wait for the July 13, 2001 appointment with Dr. Bezner, Plaintiff contacted Dr. Sheremata who requested that she come see him right away, as he was concerned for her health. On July 6, 2001 Plaintiff saw Dr. Sheremata in his office, at which time he advised Plaintiff that it was now necessary for Plaintiff to be admitted to the hospital on an emergency basis for ten (10) days of ACTH treatment. Based upon prior experiences, because there was no authorization for the office visit, then the subsequent related hospitalization would not be approved and, again, Plaintiff was unable to afford the prescribed treatment without coverage under her HMO plan.
    
    
53. Prior to the July 6, 2001 office visit with Dr. Sheremata, Plaintiff received several calls and communications from Humana and its representatives. On June 26, 2001, a Dr. Pearson, who represented himself to be the Humana Medical Director for Broward or Palm Beach County, contacted Plaintiff. Plaintiff and Dr. Pearson spoke for forty-five (45) minutes, during which time Dr. Pearson advised Plaintiff that he didn’t see what the problem was, that Humana frequently referred patients out of network to Dr. Sheremata, and that Dr. Pearson would call Dr. Dresner, Plaintiff’s primary care physician, to arrange for a referral authorization. Shortly thereafter, however, Plaintiff received a call from JoAnne Wagner of Humana who indicated that Dr. Sheremata’s recommended course of treatment was outdated or “old fashioned” and that authorization for the treatment prescribed by Dr. Sheremata, or even an office visit, would not be provided. Plaintiff, in tears during this conversation with Ms. Wagner, advised her and Humana that Plaintiff was suffering cognitive dysfunction and other impairments due to the exacerbation of the MS and lack of treatment thereof, to the point that Plaintiff could suffer permanent damage. Nevertheless, Ms. Wagner stated that Humana refused to authorize treatment by Dr. Sheremata.
    
    
54. Contrary to Ms. Wagner’s statements, Plaintiff was advised in a separate telephone call from a Humana representative that authorization for treatment by Dr. Sheremata had been provided -- not by Plaintiff’s primary care physician, Dr. Dresner, but by the president of Dr. Dresner’s medical group, Dr. Terry Coleman. However, at or near the same time that Plaintiff was advised that Dr. Coleman had authorized coverage, Plaintiff was contacted by a Gail Tartaro, a Humana nurse caseworker. Ms. Tartaro proceeded to advise Plaintiff that she did not need to be treated by Dr. Sheremata and did not need to travel to Jackson Memorial; instead, Ms. Tartaro told Plaintiff she could receive steroid treatments at her home in Palm Beach County. Despite the fact that Plaintiff now had an authorization to see Dr. Sheremata, Ms. Tartaro nevertheless tried to secure an appointment for Plaintiff with a Ft. Lauderdale physician with staff privileges at Northridge Hospital because she was unable to secure an appointment with a Palm Beach County physician. Thus, Humana denied coverage for Dr. Sheremata because he was based in Dade County and therefore out of network for Plaintiff’s Palm Beach County plan, yet Humana provided coverage for a physician who also was not located in Palm Beach County.
    
    
55. When Plaintiff appeared at Dr. Sheremata’s office on July 6, 2001, she was advised that Humana had refused to authorize coverage for this visit. This was contrary to the representations previously made by Humana agents that authorization had been provided by Dr. Coleman.
    
    
56. On July 13, 2001, Plaintiff saw Dr. Bezner who indicated that Plaintiff needed to be seen by Dr. Sheremata. On July 25, 2001, Dr. Sheremata admitted Plaintiff to Jackson Memorial Hospital on an emergency basis. Tests conducted on Plaintiff showed that she now had live lesions on her spine and brain. Dr. Sheremata specifically related this exacerbation of Plaintiff’s MS to the “enormous stress” brought about by Humana’s denial of coverage and refusal to authorize prescribed treatment. Dr. Sheremata noted the contradictory information Plaintiff received from Humana and determined that Humana’s denial of coverage or authorization “caused [Plaintiff] a great deal of stress” which caused the exacerbation, which in turn manifested in the form of increased difficulty with the use of her right arm; increased difficulty walking; marked urinary frequency; prominent paresthesias in the lower right extremity; and cognitive difficulties (noting difficulty in presenting history which never existed before). Dr. Sheremata concluded that Plaintiff was “functionally impaired to a severe degree” as a result of the stress caused by Humana’s denial of coverage.
    
    
57. Dr. Sheremata admitted Plaintiff to Jackson Memorial for the ACTH therapy despite that Humana wanted Plaintiff to treat at home with ACTH. Upon discharge from the hospital, Dr. Sheremata prescribed at-home occupational and physical therapies, as Plaintiff was not fit to drive and was ordered to avoid exposure to the heat. Contrary to Dr. Sheremata’s medical judgment and advice, and in violation of its fiduciary obligations to Ms. Flower, Humana refused to authorize at-home therapy and Plaintiff was forced to travel to a facility for evaluation and therapies.
    
    
58. Defendants’ conduct was part of a scheme to gain corporate profit at the expense and to the direct and immediate physical and severe emotional detriment of Ms. Flower
    
    
59. As Defendants knew, Ms. Flower suffered from MS. And as Defendants knew or should have known, MS is a severe and potentially debilitating disease that is subject to worsening or exacerbation due to increased stress. Despite this fact, Defendants engaged in a course of conduct by which conflicting information and determinations regarding coverage for treatment by Dr. Sheremata were conveyed to Plaintiff, and by which Plaintiff was placed in a position of being unable to secure timely, necessary medical treatment for her neurological condition.
    
    
60. In addition, Plaintiff was deceived by Humana as to the appeal process, in an attempt to manipulate Plaintiff into a position where she had failed to preserve or prosecute her available appeal remedies. Finally, Plaintiff was forced to undergo necessary therapies on an out-patient basis, and not in her home, against the advice and medical judgment of her treating physician, who advised she should not drive and should avoid exposure to heat.
    
    
61. Defendants’ conduct as described above was unlawful, fraudulent and outrageous, and was a violation of Defendants’ fiduciary obligations toward its subscriber, Ms. Flower. Their conduct goes beyond all possible bounds of decency and is extreme, outrageous, shocking, atrocious and utterly intolerable in a civilized community.
    
    
62. Defendants engaged in this outrageous conduct even though they owed Ms. Flower a fiduciary duty to review in good faith requests for authorization for coverage for medical care prescribed by Ms. Flower’s treating physicians, and to protect her health and well being.
    
    
63. Defendants owed Mr. Flower this fiduciary-like duty by virtue of the exclusive control Defendants exercised in authorizing coverage for prescribed medical care and treatment under the terms and conditions of her Humana Gold Plus plan and Florida law.
    
    
64. Through the conduct described above, Defendants repeatedly and egregiously violated their fiduciary duty to Ms. Flower. Such violations were unlawful, fraudulent, outrageous, go beyond all possible bounds of decency, and are extreme, outrageous, shocking, atrocious and utterly intolerable in a civilized community.
    
    
65. Defendants acted with intent to cause Ms. Flower’s severe emotional distress and physical injury, or with reckless disregard of the high probability of causing her severe emotional distress and physical injury.
    
    
66. As a direct result of Defendants’ conduct, Ms. Flower suffered severe emotional distress, personal injury, damage and loss.
    
    
67. As a direct result of Defendants’ conduct, Ms. Flower was obligated to retain attorneys to represent her interests in this matter, to whom she has agreed to pay reasonable attorneys’ fees and costs.
    
    
68. Any and all conditions precedent to bringing this action have been met or waived.

    WHEREFORE, Plaintiff, Linda R. Flower, demands judgment for compensatory damages and costs, plus prejudgment interest on all out-of-pocket economic damages against Defendants, Humana, Inc., Humana Medical Plan, Inc. and Bill Torres and for whatever and further relief this Court deems appropriate. Further, Plaintiff, Linda R. Flower, demands an award of attorneys’ fees under Sections 57.105(1) and (6), Fla. Stat. Finally, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant to the requirements of Section 768.72, Fla. Stat.

    COUNT IV
    BREACH OF FIDUCIARY DUTY AGAINST HUMANA, INC.
    AND HUMANA MEDICAL PLAN

69. Plaintiff re-alleges paragraphs 1 through 22, 24 through 37, and 46 through 68 as though fully set forth herein.
    
    
70. Humana owed Ms. Flower a fiduciary duty by virtue its exclusive ability to authorize or deny coverage for her prescribed medical treatment, and to institute same under conditions in accordance with the recommendations or opinions of Ms. Flower’s treating physicians. This duty required Humana to authorize coverage for Ms. Flower in good faith and to protect her health and well-being.
    
    
71. Humana breached its fiduciary duty by failing to authorize coverage for Ms. Flower’s treatment with Dr. Sheramata, failing to otherwise ensure that coverage for prescribed medical treatment was authorized, acting in a way that was meant to induce Ms. Flower to waive or eliminate available administrative appeal processes, and in failing to ensure or enable Ms. Flower to undergo prescribed therapies in accordance with the instructions of the prescribing physicians. Humana did so even though it knew or should have known that without coverage for the prescribed treatments and therapies, or without the treatments and therapies being provided under the conditions prescribed by her treating physicians, Ms. Flower could suffer serious complications or exacerbations of her MS, which she in fact did suffer.
    
    
72. As a direct and proximate result of Humana’s breach of its fiduciary duty, Ms. Flower suffered bodily injury and resulting pain and suffering, disability, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, and loss of ability to earn money.
    
    
73. As a result of this conspiracy, Ms. Flower has suffered severe emotional distress, personal injury, damage and loss.
    
    
74. As a direct result of Humana’s conduct, Ms. Flower was obligated to retain attorneys to represent her interests in this matter, to whom she has agreed to pay reasonable attorneys’ fees and costs.
    
    
75. Any and all conditions precedent to bringing this action have been met or waived.

    WHEREFORE, Plaintiff, Linda R. Flower, demands judgment for compensatory damages and costs, plus prejudgment interest on all out-of-pocket economic damages against Defendants, Humana, Inc. and Humana Medical Plan, Inc. and for whatever and further relief this Court deems appropriate. Further, Plaintiff, Linda R. Flower, demands an award of attorneys’ fees under Sections 57.105(1) and (6), Fla. Stat. Finally, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant to the requirements of Section 768.72, Fla. Stat.

    COUNT V
    CIVIL CONSPIRACY AGAINST HUMANA, INC. AND HUMANA MEDICAL

76. Plaintiff re-alleges paragraphs 1 through 5, 12 through 22, 24 through 37, 39 through 44, 46 through 68, and 70 through 75 as though fully set forth herein.
    
    
77. This Count arises out of the common law of civil conspiracy.
    
    
78. Upon information and belief, Defendants Humana, Inc. and Humana Medical undertook and committed the above-described actions and conduct in adherence to an agreed upon approach to managed care that was formulated during and as a result of frequent meetings, discussions and planning sessions between the parties regarding the above-described fraudulent approach to marketing to Medicare eligible persons. Both Humana entities committed predicate acts which resulted in the fraudulent inducement of Ms. Flower and denial of prescribed medical care and treatment, including but not limited to: a) solicitation and/or inducement into the subject managed care agreement/contract; b) wrongful classification of Dr. Sheremata in provider booklets and misrepresentation to Ms. Flower that any care and treatment provided by Dr. Sheremata would be covered; c) providing conflicting and misleading statements and representations as to the administrative appeal process and compromise treatment plans which were less than the level of care prescribed by treating physicians.
    
    
79. As a result of this conspiracy, Ms. Flower has suffered severe emotional distress, personal injury, damage and loss.
    
    
80. As a direct result of Defendants Humana, Inc.’s and Humana Medical’s conduct, Ms. Flower was obligated to retain attorneys to represent her interests in this matter, to whom she has agreed to pay reasonable attorneys’ fees and costs.
    
    
81. Any and all conditions precedent to bringing this action have been met or waived.

    WHEREFORE, Plaintiff, Linda R. Flower, demands judgment for compensatory damages and costs, plus prejudgment interest on all out-of-pocket economic damages against Defendants, Humana, Inc. and Humana Medical Plan, Inc. and for whatever and further relief this Court deems appropriate. Further, Plaintiff, Linda R. Flower, demands an award of attorneys’ fees under Section Sections 57.105(1) and (6), Fla. Stat. Finally, Plaintiff reserves the right to amend this Complaint to add a claim for punitive damages pursuant to the requirements of Section 768.72, Fla. Stat.

DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished to all counsel on the attached service list via U.S. Mail this ____ day of January, 2003.