DEFENDANTS TEXAS HEALTH CHOICE, L.C.'S f/k/a HMO TEXAS, L.C., THE MEDICAL GROUP OF TEXAS, P.A., TEXMED PHYSICIANS, P.A., f/k/a THE MEDICAL GROUP OF TEXAS, P.A. and SIERRA HEALTH SERVICES, INC. ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT COMES NOW, Defendants Texas Health Choice, L.C. f/k/a HMO Texas, L.C., The Medical Group of Texas, P.A., TEXMED Physicians, P.A. f/k/a The Medical Group of Texas, P.A. and Sierra Health Services, Inc. (hereinafter referred to as "Defendants"), some of the Defendants in the above-entitled and numbered cause, by and through their undersigned attorneys and file this their Answer to Plaintiff's Second Amended Complaint and will show the Court the following:
I. FIRST DEFENSE
Defendants contend that all of Plaintiff's state law causes of action are preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq.
II. SECOND DEFENSE
Defendants further allege that Plaintiff's claims for extra-contractual (mental anguish) and punitive relief, as asserted in Section K, paragraphs 26 27, and Section L, paragraph 29, respectively, of Plaintiff's Second Amended Complaint, are not recoverable under ERISA as determined by Crystal Cammack Medina v. Anthem Life Ins. Co., 983 F.2d 29 (5th Cir. 1993).
III. THIRD DEFENSE
Defendants are not liable to Plaintiff under Chapter 88 of the Texas Civil Practice and Remedies Code, entitled "Health Care Liability," because, under Decedent's health care plan, Defendants were not obligated to provide Decedent the treatment sought prior to the expiration of the one-year waiting period. See TEX. CIV. PRAC. REM. CODE ANN. § 88.002(d) (Vernon Supp. 2001).
IV. FOURTH DEFENSE
Defendants contend that none of their officers, agents, employees or representatives made any representations or warranties to Plaintiff or Decedent regarding the health plan at issue. Defendants further contend that none of their officers, agents, employees or representatives failed to disclose any material facts regarding the health plan at issue.
V. FIFTH DEFENSE
Defendants also contend that a reasonable and prudent investigation was conducted and there was a reasonable basis to deny Plaintiff's claims in accordance with the holding of Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998).
VI. SIXTH DEFENSE
Defendants assert that any and all of Plaintiff s alleged injuries or damages were wholly and completely unavoidable, and without any negligence on the part of Defendants.
VII. SEVENTH DEFENSE
Plaintiff's Second Amended Complaint fails to state any claim against Defendants that is cognizable under Texas or Federal law.
VIII. EIGHTH DEFENSE
Defendants plead the limitations of liability contained in Sections 11.01 through 11.05 of Article 4590i of the TEXAS REVISED CIVIL STATUTES as they may be amended and applicable thereto.
IX. NINTH DEFENSE
Defendants further allege that any award of punitive damages must satisfy the constraints on punitive damages established by the United States Supreme Court in BMW of North America, Inc. v. Ira Gore, Jr., 116 S.Ct. 1589, 134 L.Ed.2d 809, 64 U.S.Lw. 4335 (1996), or any cases which follow involving appropriateness or excessiveness of the application of punitive damages.
X. TENTH DEFENSE
Defendants further allege that Plaintiff's prayer for pre-judgment interest as asserted in Section P, paragraph 34, in so far as it may apply to any claim for alleged exemplary damages is barred by Section 41.007 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE and Section 304.101, et seq. of the TEXAS FINANCE CODE.
XI. ELEVENTH DEFENSE
Defendants further assert that Plaintiff's claims for exemplary or punitive damages, if any, are a violation of Defendants' rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 3 and 19 of the Texas Constitution, in that such claims as made are arbitrary, unreasonable, excessive and in violation of Defendants' rights to due process of law and equal protection of the law. Further, Plaintiff's claims for exemplary or punitive damages, if any, should be proven beyond a reasonable doubt under the Sixth Amendment of the United States Constitution, or, in the alternative, should be proven by clear and convincing evidence, as opposed to a mere preponderance of the evidence. Defendants deny that Plaintiff is entitled to recover exemplary or punitive damages.
XII. TWELFTH DEFENSE
Defendants further assert the defenses of waiver anticipatory repudiation, equitable estoppel, accord and satisfaction and promissory estoppel.
XIII. THIRTEENTH DEFENSE
Defendants further allege that it is not liable to Plaintiff because they complied with their fiduciary duties in that they complied with Texas state law and at all times handled Plaintiff s claims fairly and equitably.
XIV. FOURTEENTH DEFENSE
Defendants avails themselves of the limitations of liability contained in Section 33.013 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.
XV. FIFTEENTH DEFENSE
Defendants avail themselves of the limitations imposed by Section 41.001, et seq. of the TEXAS CIVIL PRACTICE AND REMEDIES CODE with regards to the recovery of exemplary damages by Plaintiff, if any.
XVI. SIXTEENTH DEFENSE
Defendants assert their rights of contribution and indemnity against third parties and reserve their rights under the TEXAS CIVIL PRACTICE AND REMEDIES CODE § 33.001, et seq., and reserve their right to receive credit against any judgment ultimately rendered in this matter for that degree of fault attributed to other parties.
XVII. SEVENTEENTH DEFENSE
With respect to the separately numbered paragraphs of Plaintiff's Second Amended Complaint, the paragraphs of which are numbered the same as the paragraphs below, Defendants state the following:
1. Defendants need neither admit nor deny Section A, paragraph 1.
2. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in Section B, paragraph 2.
3. Defendants admit the averments in Section B, paragraph 3.
4. With respect to Section B, paragraphs 4 and 5, Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments.
5. Defendants deny the averments in Section B, paragraph 6 as to the time period after November 2000, and deny the averments as they are phrased.
6. Defendants admit the averments in Section B, paragraph 7.
7. Defendants deny the averments in Section B, paragraph 8 wherein Plaintiff alleges that Sierra Health Services, Inc. does business in the State of Texas.
8. Defendants admit that this Court has jurisdiction over this lawsuit pursuant to the terms of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. in accordance with Section C, paragraph 9.
9. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in Section D, paragraph 10.
10. Defendants alleges that they are without knowledge or information sufficient to form a belief as to the truth of the averments in Section E, paragraph 11.
11. Defendants deny the averments in Section E, paragraph 12.
12. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in Section E, paragraph 13.
13. With respect to Section E, paragraph 14, Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments therein. Defendants specifically deny that there is no dispute that liver transplantation was a covered service because although liver transplantation is a covered benefit under Decedent's policy, it is subject to a one-year waiting period.
14. With respect to Section E, paragraph 15:
a. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in the first sentence;
b. Defendants deny the allegations in the second, third and fourth sentences.
15. Defendants deny the averments of Section F, paragraph 16.
16. Defendants deny the averments of Section F, paragraph 17.
17. Defendants deny the averments of Section F, paragraph 18.
18. Defendants deny the averments of Section G, paragraph 19.
19. Defendants deny the averments of Section H, paragraph 20.
20. Defendants deny the averments of Section H, paragraph 21.
21. Defendants deny the averments of Section I, paragraph 22.
22. Defendants deny the averments of Section J, paragraph 23.
23. With respect to Section K:
a. Defendants deny the averments of Paragraph 24.
b. Defendants deny the averments of Paragraph 25.
c. Defendants deny that Plaintiff is entitled to the relief requested in the unnumbered paragraph to Section K, or any other relief, and demands strict proof thereof
24. With respect to Section L, paragraph 26:
a. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in the first, second, and third sentences;
b. Defendants deny the averments of the fourth sentence.
25. Defendants deny the averments of Section M, Paragraph 27.
26. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments of Section N, Paragraph 28.
27. Defendants deny the averments of Section 0, Paragraph 29.
28. With respect to Section P:
a. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in the first and second sentences of Paragraph 30.
b. Defendants allege that they are without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 31.
c. Defendants deny the averments in Paragraph 32.
d. Defendants deny the averments in Paragraph 33; Defendants further deny that Plaintiff is entitled to the relief requested in Paragraph 33, or any other relief, and demands strict proof thereof.
e. Defendants deny that Plaintiff is entitled to the relief requested in Paragraph 34, or any other relief, and demands strict proof thereof.
29. With respect to Section L, Paragraph 35:
a. Defendants deny the averments in the first sentence;
b. Defendants deny that Plaintiff is entitled to the relief requested in the second sentence, or any other relief, and demands strict proof thereof.
30. Defendants deny that Plaintiff is entitled to the relief requested in Section I [sic], Paragraph 36, or any other relief, and demands strict proof thereof.
31. Any allegations in Plaintiff s Second Amended Complaint not otherwise addressed above, is hereby denied.
WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon final trial and hearing, Plaintiff be denied all relief herein; that Plaintiff's Second Amended Complaint be dismissed and that Plaintiff take nothing against Defendants; that Defendants recover the costs expended on their behalf; and for such other and further relief, whether at law or in equity, to which they may show themselves justly entitled.