Date: 08-24-2006

Case Style: Collins v. Pacificare of Oklahoma, Inc.

Case Number: 102990

Judge: Keith Rapp

Court: Oklahoma Court of Civil Appeals on appeal from the District Court of Oklahoma County, Oklahoma.

Plaintiff's Attorney:

Bill Cathcart, Virginia Cathcart Holleman, CATHCART & DOOLEY, Oklahoma City, Oklahoma, for Plaintiff/Appellant

Defendant's Attorney:

J. John Hager, Jr., THE LAW OFFICE OF J. JOHN HAGER, P.C., Edmond, Oklahoma, for Defendant/Appellee

Description:

The trial court plaintiff, John Collins (Personal Representative), personal representative of the Estate of Ruby F. Collins (Collins), deceased, appeals an order granting summary judgment to the defendant, Pacificare of Oklahoma, Inc. d/b/a Secure Horizons (Pacificare).1 This appeal proceeds under the accelerated appeal provisions of Okla. Sup. Ct. R. 1.36, 12 O.S. Supp. 2005, ch. 15, app.

BACKGROUND

Pacificare provides a health service plan to persons eligible for Medicare benefits and uses the business name Secure Horizons. Pacificare provides benefits in addition to Medicare coverage. Pacificare, under the name Secure Horizons, operates under a contract with the Health Care Financing Administration (HCFA) of the United States Department of Health and Human Services. The contract was entered into pursuant to the Social Security Act, 42 U.S.C.A. § 1395 (West 2003 and Supp. 2005)(Act) and following, as amended.2

Collins, an eligible person, enrolled with Pacificare to receive the health insurance coverages provided. She was provided with a handbook containing explanations of coverages, disclosures, procedures for obtaining benefits, and review of benefit decisions. As a part of the agreement with Pacificare, Collins had to agree that all of her health care would be provided by medical providers under contract with Pacificare. She also had to agree that she would have a primary care physician (PCP) and be required to obtain prior authorization and referrals for specialized services from her PCP. Collins' PCP was a member of a group that contracted with Pacificare.

Collins alleged in her petition that she was a cancer survivor and underwent a routine CT scan which revealed a spot on her liver. The physician treating her for cancer recommended an MRI, which had to be approved by the PCP and Pacificare. She alleged that the PCP and Pacificare delayed approval and scheduling of the procedure resulting in growth of the tumor and surgery.

As a basis for recovery, Collins claimed that Pacificare breached its duty of good faith and fair dealing in numerous respects. She further alleged that the PCP was negligent and acted as an agent for Pacificare, thus making Pacificare liable as principal.

Pacificare answered by general denial and affirmative defenses. One of the defenses was that Pacificare is a "fiscal intermediary" for the federal government by virtue of the Social Security Act.3 As a fiscal intermediary, Pacificare claimed sovereign immunity. Collins has not disputed whether Pacificare is a fiscal intermediary.

Pacificare moved for dismissal or judgment on its defenses. The trial court denied the dismissal and treated the motion as one for judgment. After a hearing and after receiving decisions from the United States District Court for the Western District of Oklahoma providing sovereign immunity to fiscal intermediaries, the trial court concluded that Pacificare was a fiscal intermediary and, therefore, enjoyed sovereign immunity. The court ruled that the case must be dismissed on this ground and that all other summary judgment issues became moot. Collins' Personal Representative appeals.

Outcome: AFFIRMED.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: Reported by Janey Horton