Initially, Mr. H was denied coverage because he did not get a referral from his primary physician to see a specialist. The original treatment to which Mr. H's primary care physician was subjecting Mr. H was 1. not effective and 2. The physician suggested a radical amputation for his condition while the second opinion Mr. H sought suggested a much less radical procedure which would allow Mr. H to retain his mobility. It could be logically argued that had Mr. H not gone 'out of network' he would have suffered substantial medical harm. Furthermore, while the HMO cited as a reason for denial of claim a provision in the plan documents that prevents referrals outside the plan's network when the network's physicians have the capability to perform the required procedure, Mr. H seems to have legitimate questions about his in-network physician's competence to perform the procedure. Unfortunately for Mr. H, however, he has far less legal ground on which to stand than he would, had he been covered under either form of government insurance. Denial of coverage by an HMO is not regarded as a medical decision. "If an HMO correctly concludes that a particular...

The proximate cause would be the plan's failure to cover the requested treatment….plaintiffs can no longer argue that HMO coverage and payment decisions are equal to medical treatment, however, and sue for tort recovery under state medical negligence laws, when the patient's sole connection with the HMO is that it determines scope of coverage and pays for benefits" under the private insurance plan (Bacon 2004).
References

Appeals of local coverage determinations. (2010). Medicare.gov. Retrieved October 31, 2010

http://www.medicare.gov/basics/lcds.asp

Bacon, David. (2004). ERISA preemption of tort suits. Metro Corp Counsel. Retrieved October

31, 2010 at http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=June&artYear=2009&EntryNo=1914

Handling Medicaid denial. (2010). Families USA. Retrieved October 31, 2010 at http://www.familiesusa.org/issues/medicaid/making-it-work-for-consumers/medicaid-denial.html