John Smelik Prevails Against Goliath Humana

Landmark case: Attorney Jon Powell, Plaintiff John Smelik prevail against Goliath Humana HMO in Wrongful Death Case after 19 law firms refused to take the case.

“A four week trial was just about over. The jury was on its ways into the courtroom to deliver its verdict. All of a sudden the lawyers for Humana, an HMO and the defendant in a wrongful death case, leaned over to the table with the surviving husband, John Smelik, and his trial lawyers, Jon Powell and Brant Mittler, and offered $1 million to settle the case and avoid hearing the jury’s verdict. The answer from Mr. Smelik was clear and resounding – “Humana is responsible for my wife’s death and I want whatever the jury tells me I am entitled to – nothing more and nothing less.” The jury then announced its verdict – Humana was legally responsible for the death of Joan Smelik by not allowing her to see a kidney doctor and by approving drugs that caused her kidneys to fail – and the damages amounted to $9 million. What led up to this dramatic conclusion of the trial follows…”

Humana hired the biggest defense lawyers in the country. Jon Powell is a San Antonio-based attorney with a small dedicated legal team. John Smelik is an elderly, bereaved, retired U.S. Marine. This is truly a David vs. Goliath story. Jon and his team won a 9 million dollar jury verdict for the Smeliks against the biggest HMO in the country. But this case wasn’t about the money. It really was about the principle and standing up for the little guy.

John Smelik knew that mismanaged medical care of his wife Joan cost her her life. He also learned that neither the Hospital, nor the HMO, nor any of her doctors would take responsibly for the misdiagnosis and mistreatment that caused her death. Through his grief, when John saw the T.V ads and billboards promising justice, he had a glimmer of hope that if he pursued legal channels they could perhaps get some answers and prevent this from happening to someone else.

“My wife died needlessly and no one would take our case. We went to all the big lawyers. You know, the one’s that advertise on TV. We even went up to Dallas and Houston, everywhere. They all said the same thing, It would cost too much, take too long and we probably couldn’t win up against the big HMO’s. sometimes they wouldn’t even take or return our calls,” explained John, “19 law firms turned us down. We were getting pretty beat up.”

You’ll never get to talk to the guy in the ad. That super confident, super successful lawyer with the Rolls-Royce, or Lear Jet, or cowboy hat. Someone in a call center reviews your complaint. If they think there’s money in it, you get to talk to a junior lawyer right out of law school. Then, if they take you as a client, your file sits there and nobody processes anything for months. It’s a long frustrating process.

“Then we heard about Jon (Powell) from a friend, recalls Mr. Smelik,”so we went to see him. “He kind of agreed with the other lawyers about how long and expensive it would be and that our chances weren’t very good, but the more he learned about us and got to know us, and the more he and Dr. Linda Peeno learned about my wife’s treatment…well he decided to take our case and he promised us he would be there every step of the way. He knew he was taking a risk, but that’s the kind of guy he is.”

Just a year prior to this case being filed the Supreme Court ruled that employees could not sue HMO’s for refusing claims which would protect HMO’s from costly lawsuits. Also, The New York Times reported that in the State of Texas, tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting and capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000. Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it. Jon Powell was quoted in the New York Times commenting about this is near-impossible threshold to meet, “You’d have to be a Nazi death camp guard to meet this standard.” Attorneys like Jon believe, as complex as the laws may be they exist to protect the wellbeing of people and our society, and he was therefore resolved to find a way to help Joan and John Smelik.
Through careful study, it turns out, the Supreme Court did not rule that HMO’s would be protected from violating their own rules for providing managed care under the law and their own member handbooks guidelines, policies and procedures. Court documents show that instead of providing Joan Smeilk with the kidney specialist she needed, Humana allowed for her treatment to include Vioxx, which is lethal for those suffering from kidney ailments. They were in breach of their own contract with the insured. Proving it in court would be another matter.

“When I had my heart attack everyone thought I was a goner. Jon came and visited me in the hospital and said he wasn’t sure he could win this case without me around so I’d better get better. We really did want to win this for Joan and others like her.

In the end, the Jury awarded $7.4 million in actual damages and another $1.6 million in punitive damages.

“My wife fought a very painful death those last 19 days in the hospital. I thought, we couldn’t bring my wife back but at least we could prevent them from doing this others,” said John when he learned they had had prevailed.”

John Smeilk shared some personal moments recently, “I visit her grave and put flowers down twice a week. There’s another grave site on her row with three children buried there. I don’t see flowers there very often, so I bring some for them too, so someone will know they’re being thought of too. If I get sick and can’t get around, my son-in-law and daughter, they make sure we don’t’ miss a visit. I’ll tell them not to forget the children.” Like John, his son-in-law Travis Briggs is also a military career man and they share a strong Christian faith. When asked whether Travis has been a rock and a means of support through this ordeal Smelik responded stoically and with a glint of love and deep appreciation, “Well, he’s finally starting to get a sense of humor” Travis’ son and John’s grandson earned the Distinguished Service Cross, the second highest military award that can be given to a member of the United States Army for extreme gallantry and risk of life in actual combat with an armed enemy force.

The Smeliks are a very proud, humble close knit family. While justice may have been served and the family has now been compensated for their pain and suffering, after speaking with them it is clear all they really wanted to has Joan Smelik healthy, happy, together, and at home.