Ninth Circuit Holds Fraud and Consumer Protection Claims Preempted by Medicare Modernization Act

Medicare: Forward NOT Backward
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The Ninth Circuit Court of Appeals in Uhm v. Humana, Inc., No. 06-35672,  — F.3d —-, 2010 WL 3385546 (9th Cir. Aug. 30, 2010) held that the trial court lacked jurisdiction to consider plaintiffs’ breach of contract and unjust enrichment claims because they were not properly exhausted through the administrative remedial scheme established under the Medicare Prescription Drug Improvement and Modernization Act of 2003.  The court further held that plaintiff’s fraud and consumer protection act claims were not subject to the Act’s exhaustion provisions, but that they are expressly preempted.

Circuit Judge Betty Fletcher wrote a pointed concurrence chastising plaintiff’s counsel for filing the class action “all for the recovery of two months’ prescriptions” where a “bit of common sense and attention to the available administrative remedies should have been applied”:

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