by Andrew Walden
In a February 2, 2024 Order, 3rd Circuit Judge Robert D S Kim has voided HMSA, HMSA Medicare, and Quest ‘Participating Physician Agreements’ calling them, “oppressive, unconscionable, and unenforceable.”
Ruling in the class action, Nitta vs HMSA, Judge Kim cited examples of HMSA care denial leading to tragedy for patients and found:
…the terms and conditions of the HMSA Agreements were oppressive…. Defendant HMSA reserved the exclusive authority to determine what the physician will be paid or if the physician will be paid at all….
…as a matter of law, the excerpts of the HMSA Agreements, as presented by the Defendant, are·procedurally unconscionable.
HMSA holds the exclusive right to determine what is a "Covered Service" eligible for reimbursement. The HMSA Agreements wrongfully infringe on the practice of medicine between the physician and patient….
Plaintiffs include Dr Frederick Nitta, an OBGYN known as “Hilo’s welfare doctor". Hawaii Department of Human Services, in February, 2022, was defeated in Hawaii’s Intermediate Court of Appeals suing Nitta for having the temerity to also serve as a General Practitioner after discovering that most of his OBGYN patients couldn’t find a GP due to Hawaii’s chronic shortage of doctors.
Nitta is joined in the current class action by the Hawaii County Medical Society and medical patients Charlene Orcino and the late Adrian Scott Norton, both of whom suffered due to HMSA meddling.
Court Findings of Fact include:
Plaintiff Orcino became a patient of Plaintiff Frederick Nitta MD on or about April 28, 1999….
On January 25, 2021, Dr Nitta examined, diagnosed her and prescribed nifedipine to stop her premature labor….
Plaintiff Orcino went to two different pharmacies in East Hawaii, but was told that HMSA refused to honor Dr Nitta’s prescription….
Plaintiff Orcino then attempted to raise the needed money to pay for the prescriptions out of her own pocket…..
In the short time between Dr Nitta's diagnosis and Defendant HMSA' s refusal to make payment before she could make the "out of pocket'' payment, Plaintiff Orcino had to be medivaced to Honolulu for emergency delivery of an extremely premature baby, at twenty-five (25) weeks gestation.
Plaintiff Orcino's child is substantially disabled…..
HMSA wrongdoing also led to disaster for Norton:
In March of 2022, Plaintiff Adrian Scott Norton because the patient of Dr. R. Lee Ching in Hilo, Hawaii…
Dr. Lee-Ching recommended that Plaintiff Norton undergo MRI testing….
Defendant HMSA refused to allow Plaintiff Norton an MRI scan or referral to a specialist….
Instead, Defendant HMSA only permitted Plaintiff Norton to receive weeks of physical therapy….
Plaintiff Norton's physical condition considerably worsened and Defendant allowed him to take an MRI scan…
The result of the MRI was that Plaintiff Norton had prostate cancer which had spread to his back, spine, hip and ribs….
The cancer specialist, Dr. Wilson, told Plaintiff Norton that his condition was one of the worst he had seen in his career and that the Plaintiff had approximately four years to live. On October 31, 2020, Plaintiff Norton was flown to Honolulu and went into emergency surgery on November 2, 2020….
As a result, Plaintiff Norton was wheelchair bound, with limited walking ability, when he used to be a strong, healthy and active man….
Will the Court’s Order stop the State’s largest insurer from second-guessing physicians?
As a matter of law that the following agreements are contracts of adhesion and unconscionable and therefore unenforceable:
a. Hawaii Medical Service Association Participating Physician Agreement, dated April 3, 2021
b. Hawaii Medical Service Association Provider Agreement for Medicare Plans, dated October 26, 2009
c. Quest Participating Physician Agreement, dated March 19, 1999….
PDF: COURT RULING
HTH: Kona judge calls HMSA contracts ‘unconscionable'
HNN: Judge rules HMSA contracts are ‘unconscionable’ in lawsuit from doctors and patients (hawaiinewsnow.com)