San Antonio, TX - A Texas family's wrongful death suit against Humana Health Plan of Texas, Inc. is about to go to trial. At the heart of the case lies the family's discovery that the deceased should never have been prescribed the Vioxx she was taking.

The case could also have broader implications. The Smeliks also allege that Humana was negligent in caring for Joan Smelik and that it committed fraud when it promised a certain standard of care in its members handbook and then failed to deliver on that promise by opting instead for cost savings.

The lawsuit, if it succeeds, may be among the first of a new wave of legal cases alleging that HMOs engage in fraud when they promise health insurance coverage based on medical need, but instead dispense health care according to strategies that put cost savings first. Humana Health Plan of Texas is one of San Antonio's largest managed care health companies, serving 246,000 members throughout South Texas.

The trial against Humana is the latest chapter in a lawsuit that also targeted Smelik's two doctors, as well as four physician groups, all of whom have already settled out of court. "We have great sympathy for Mr. Smelik and his family over their loss," said Ross McLerran, spokesman for Humana. "Because of our desire to respect the privacy of all our members, we will not comment specifically on the allegations outside the courtroom and will limit our response to the legal proceedings. However, we believe that Humana acted appropriately at all times, and we are prepared to defend the case," McLerran added. The medical malpractice case recently got under way with jury selection before 224th District Judge Ren? D’az.

According to the lawsuit, Smelik's family accuses Humana of failure to exercise ordinary standards of care as prescribed by the Texas Insurance Code, laws governing health maintenance organizations in Texas and the Humana plan. In addition to the role Vioxx played in her death, the suit claims she should have been monitored more closely for kidney failure and should have been given access to disease management programs offered by her health insurer.

When Joan Smelik died June 1, 2001, in a North Side hospital, her husband of 47 years John Smelik, a retired business executive, knew something wasn't right. The first clue came when she was admitted to North Central Baptist Hospital 19 days earlier and the emergency room doctor wanted to know the name of her kidney doctor. "She didn't have one," said John Smelik, a retired business executive, recalling his wife's last trip to the hospital.

After his wife's funeral, Smelik took the advice of an attorney and began collecting copies of all her medical records. The couple's two grown children, Janice Ann and John Andrew, began to write down all that they remembered about the doctor visits and hospital stays they endured with their mother.

"I kept wondering, if they said she died of a heart attack, why does it say on her death certificate that she died of septicemia?" Smelik asked, referring to what is more commonly known as blood poisoning. "We didn't know she had deadly kidney disease," Smelik said. After a while, during the family's informal inquiries, the caregivers at Humana stopped talking to them, Smelik said.

"It was just a horrible, horrible death," said the Smelik's lead attorney, who was the 20th lawyer John Smelik approached to consider the case. Other lawyers have been reluctant to take on such cases since a 2004 U.S. Supreme Court ruling making it more difficult for patients to sue HMOs. "When he agreed to take the case, I said, `Thank God, someone is finally going to get me some answers,"' Smelik said.

Dr. Linda Peeno will be among the first of the Smeliks' expert witnesses to testify. She is a physician and ethicist who in 1987 worked as an adviser for Humana, approving and denying hospital admissions for Humana patients. Peeno, of Louisville, Ky., later became an outspoken critic of the managed care health insurance industry, and her story as an industry whistle-blower became the 2002 made-for-television movie "Damaged Care."