The Uhms enrolled in a Medicare Part D prescription drug benefit through Humana Health Plans, Inc. They enrolled, Humana took their $6.90 for two months, but apparently forgot to actually enroll them in the plan. So after weeks of trying to get Humana to make things right, the Uhms did what any red-blooded American wants to do when they are screwed over… made a Federal Case out of it and took Humana to court in the Western District of Washington. The federal court did what they do to most red-blooded Americans that take big drug companies to court… they dismissed the claim and told the Ohms (who by this time were enrolled) that they had an Administrative process for this type of action and they need to exhaust that before making a federal case out of it. The Uhms then did what a true red-blooded American should do and followed the court’s ruling and went through the administrative process….  Just kidding… they appealed, of course!

Skip ahead two and a half years and the Ninth Circuit Court of Appeals confirmed the lower court’s ruling. Circuit Judge Richard A. Paez lays out a “painstakingly” detailed opinion of why the Uhms don’t have standing in the federal courts. Although Judge Paez’s 9,000 word, 70 paragraph, twenty-page decision (along with 26 footnotes) could be a chapter in a first year Civil Procedure class, it is Judge Betty B. Fletcher’s short three-paragraph concurrence that should be the one taught to lawyers. It seems that Judge Fletcher asks a basic question of the Uhms and their counsel: “What have Uhms’ counsel accomplished for the Uhms, for justice, or for the law?”  Here’s the entire concurring opinion from Judge Fletcher:

B. FLETCHER, Circuit Judge, concurring.

I concur in the opinion, which carefully and painstakingly analyzes the claims. I add this concurrence simply to vent my frustration. What have Uhms’ counsel accomplished for the Uhms, for justice, or for the law?

The Uhms suffered a frustrating and bureaucratic “snafu” that temporarily cost them two months’ prescription costs. They filled out the forms to receive Part D prescription drug benefits from Humana. The process obviously enrolled them to the point where automatic deductions were made from their social security checks. But the other half of the process failed — their status as beneficiaries was denied and, as a consequence, the Uhms had to pay for their prescriptions. Frustrating indeed. But what to do? Make a federal case of it — start a class action where simply following the administrative appeal process would suffice? A class action all for the recovery of two months’ prescriptions?

Today the Uhms receive the prescription drug benefits to which they are entitled. But not as a result of this lawsuit. The cost to the court system and to the Uhms is unconscionable. A bit of common sense and attention to the available administrative remedies should have been applied. Instead we have an opinion with endless pages of legal analysis, months of study and delay, and a determination that no benefit can be awarded to the Uhms. Counsel particularly should take heed.

I’ve suddenly become a big fan of Judge Fletcher.

[NOTE: Big thanks to Washington DC Attorney @maggieesq for tweeting me about this case. Thanks Maggie!!]