Jah-I-Dah Gumbs v. Schneider Regional Medical Center, Maria C. Juelle, P.A., James W. Freeman, M.D., John Dow and Jane Doe

• Court: Superior Court of The Virgin Islands
• Decided: October 19, 2020
• Docket: ST-17-CV-272
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

JAH I DAH GUMBS ) ) CASE NO ST 17 CV 272 Plaintiff ) ) v ) ACTION FOR DAMAGES ) SCHNEIDER REGIONAL MEDICAL ) CENTER MARIA C JUELLE P A JAMES W ) JURX TRIAL DEMANDED FREEMAN M D JOHN DOE AND JANE DOE ) ) Defendants ) Cite as 2020 VI Super 87 )

JULIE GERMAN EVERT Esq E MICHAEL BREZINA III Esq Law Offices of Julie German Evert V I Department of Justice 5143 Palm Passage, Suite 10A 34 38 Kronprindsens Gade St Thomas V1 00802 St Thomas V1 00802 julieevert555(q gmail com michael brezina@doj vi gov Attorneyfor Plaintiff Attorneyfor Defendants

LEE J ROHN Esq ROYETTE RUSSELL Esq Lee J Rohn and Associates, LLC V I Department of Justice 1108 King Street Suite 3 #213 Estate LaReine Christiansted St Croix V1 00820 Kingshill St Croix V100850 lee(g rohnlaw com royette russell@doj vi gov A ttorneyfor Plaintiff Attorneyfor Defendants

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

1| 1 PENDING BEFORE THIS COURT is Plaintiff‘s Motion for Ruling that the Virgin

Islands Medical Malpractice Act Damages Cap Violates the Virgin Islands Revised Organic Act,”

filed on January 17, 2020 Defendants filed their “Opposition to Plaintiff’s Motion for Ruling that

the Virgin Islands Medical Malpractice Act Damages Cap Violates the Revised Organic Act on

February 21 2020 Plaintiff filed her Reply on March 6 2020 For the reasons set forth below this Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

Court holds that the statutory cap on recoverable damages does not violate the Virgin Islands

Revised Organic Act

I BACKGROUND ‘1 2 On July 8, 2015, Plaintiff Jab I Dah Gumbs (“Plaintiff or Gumbs”) was involved in a

motor vehicle accident and sustained severe injuries She was transported by ambulance to the Roy

Lester Schneider Regional Medical Center ( SRMC ) in St Thomas, Virgin Islands At the

hospital emergency room, Marie C Juelle, a physician’s assistant, and Dr James Freeman

( Defendants”) treated Gumbs Gumbs alleges that she complained about pain in her left leg and

hip but Defendant Juelle only examined her left knee laceration and the associated swelling Juelle

ordered an x ray of Gumbs’ left knee to detennine if it was fractured The x ray results did not

show bone damage, so Juelie sutured Gumbs’ knee, provided her with crutches, and discharged

her on the same day Dr Freeman signed off on the records but never actually saw or treated

Gumbs during the visit

‘3 In her motion, Gumbs explains how she remained in excruciating pain and was bedridden

after being discharged Due to the pain, she was not able to walk, and had to use a bedpan as her

pelvis was not stabilized and was severely broken and dislocated ’ Pl 5 Mot 2 Five days later,

on July 13, 2015, Gumbs returned to the hospital where she again complained of lower extremity

pain in her left leg This time, Defendants ordered an x ray of her left femur and pelvis which

revealed a pelvic fracture and a dislocated femoral head Dr Freeman personally treated Gumbs

and recommended she travel to the mainland for surgery Gumbs underwent a hip surgery at

Jackson Memorial Hospital and rehabilitative care in Miami, Florida Dr Stephen Quinnan

predicted that Gumbs will suffer from chronic pain in her left hip and leg for the rest of her life

and will need additional surgeries in the years to come Gumbs alleges that the ongoing chronic

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pain and the need for fiJture medical care resulted from the Defendants’ failure to initially diagnose

her fractured pelvis She claims this delayed diagnosis led to a significantly worse outcome that

could have been mitigated by proper care during her first visit to SRMC after the accident

1] 4 Gumbs initiated this case on June 19 2017, alleging three counts of negligence against Dr

Freeman, Maria C Juelle, P A , and SRMC for failing to properly diagnose, treat, and perform the

minimally acceptable care while treating Gumbs She seeks compensatory damages in the amount

of $2 million

11 DISCUSSION 15 Gumbs challenges 27 V I C § 166b as unconstitutional so that she may attempt to recover

the full cost of her injuries As it stands, even if a jury concluded Gumbs was entitled to her claimed

damages, this Court would be required to reduce the award to $250,000 because of the damages

limitations found in section 166b The discussion section sets out the legal background and the

standards of judicial scrutiny for Gumbs three constitutional challenges In the analysis section,

the Court applies these standards to the merits of her claims, concluding that section 166b

withstands the three constitutional challenges and should be upheld

A Virgin Islands Medical Malpractice Act

1| 6 The Virgin Islands Health Care Provider Malpractice Act (referred to as the MMA or

‘ the Act ’), codified at 27 V I C § 166 et seq , was enacted on November 18, 1975 It sets up a

comprehensive scheme for the regulation of health care providers and the compensation of

malpractice victims Kock v Gov (of 1 I 744 F 2d 997 1003 (3d Cir 1984) The MMA expands

the Virgin Islands Govemment’s waiver of sovereign immunity beyond the limits prescribed by

the Virgin Islands Tort Claims Act Id at 999' 33 V I C § 3411 Section 166b limits the amount

of damages recoverable in a medical malpractice action It reads in fuil

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(a) The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($250,000) per occurrence (b) The only damages which may be awarded in an action under this subchapter are the following (1) economic damages and (2) noneconomic damages (0) The total amount awarded for noneconomic damages for any injury to a patient as a result of a single occurrence in an action under this subchapter may not exceed seventy five thousand dollars ($75 000) (d) No punitive damages may be awarded in an action filed under this subchapter (e) The maximum amounts specified in this section are inclusive of (1) actual expenses up to the time of trial paid or payable or reimbursed or reimbursable from any other source for reasonable and necessary (A) medical care, (B) custodial care, and (C) rehabilitation services, (2) estimated future expenses reimbursable or payable from any other sources for reasonable and necessary (A) medical care; (B) custodial care, and (C) rehabilitation services, and (3) lost earnings paid or payable from any other source

27 V I C § l66b (2020) This section caps medical malpractice plaintiffs total recovery, of

economic and non economic damages, at $250,000, further capping non economic damages at

$75,000 It also requires the plaintiff to join the Government of the Virgin Islands as a party

defendant 27 V I C Ch 1 Subch IX Note (c)(2) Section l66e(a) sets up a scheme of

government subsidized malpractice insurance for healthcare professionals, directing the

Commissioner of Health “to procure a group insurance policy which shall cover the cost of

Professional Liability Insurance for health care providers ” § l66e(a) The government pays

the entire premium for public health care providers, while private practitioners reimburse the

government for their premiums and practitioners working part time for public health facilities

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reimburse the government for half of their premiums See Id If the Commissioner of Health does

not procure a group policy, the Act authorizes him “to self insure health care providers against

claims arising out of the rendering of or failure to render, medical care or services, or against

claims for injury or death to patients § l66e(a)

‘l 7 The legislative history of the MMA is now unavailable,l however earlier courts with access

to the archives shed light on the legislative objectives See e g , Richardson v KnudHansen Mem 1

Hosp 744 F 2d 1007 1012 (3d Cir 1984) ( The Medical Malpractice Act was enacted in large

part to reduce the exposure of health care providers to malpractice liability, see Leg Debate on

Bill 6773 11th Leg Sess of V I Oct 28 29 1974 ) Notably the Third Circuit found that

the “historical purpose of the statute is to provide continuing medical care in the face of rising

malpractice insurance costs and the unavailability of professional liability insurance resulting in

the limitation and fear of cessation of medical practice in the islands ” Davis v Omztow01u, 883

F 2d 1 155 l 158 (3d Cir I989) The Virgin Islands Supreme Court endorsed this finding in Brady

v Cmtron 55 VI 802 816 (V I 2011) Moreover the MMA s preamble calls attention to

the need for health care, the increased cost of insurance the discouragement of health care providers by reason of escalating insurance premiums and concludes that “the public interest requires that insurance premium levels, for health care professionals be retained in order to maintain high quality medical services for the Virgin Islands ”

Davis 883 F 2d at 1158 n 5 (quoting 1986 V I Sess Laws 170)

1] 8 The purpose of section l66b is to reduce awards in actions arising out of medical

malpractice If a jury returns an award for the plaintiff of economic and non economic damages

' The parties and the Court have been unable to obtain any records from the legislative archives regarding the initial enactment of the MMA and the later amendments According to legislative services the records were destroyed due to natural occurrences See Pl 5 Mot Ex 3 (email correspondence from Legislative Archives explaining the loss of legislative history for the MMA)

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exceeding $250,000, the court is required to reduce the award to that amount Gumbs believes this

limitation on her potential damages violates equal protection, due process, and the right to trial by

jury, and should therefore be invalidated by this Court

B Judicial Review of Constitutional Challenges to Legislative Acts

1! 9 First, the Court notes that Gumbs is bringing a facial challenge to the constitutionality of

the MMA based on provisions of the Virgin Islands Revised Organic Act and the United States

Constitution See People ofthel I v Rosario 62VI 429 434 (VI Super Ct 2015)( [A] facial

challenge tests a law’s constitutionality based on its text alone and does not consider the facts or

circumstances of a particular case ) Trial has not been held, and although Gumbs alleges

damages greater than the MMA would allow, she has not yet been awarded anything See Balbom

v RangerAm alike VI Inc No ST 14 CV 366 2018 VI LEXIS 4 at *6 n 29 (VI Super Ct

Jan 24, 2018) (noting that an as applied challenge would not be ripe for adjudication because it

would “require the factual determination of whether [the plaintiff] is awarded non economic

damages and, if so, how much ”), rev d on other grounds, 70 V I 1048 (V I 2019) When

making a facial challenge, the challenger bears the burden of proving the statute could never be

constitutionally applied I mted States v Salerno 481 U S 739 745 (1987) ( A facial challenge

to a legislative Act is, of course, the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists under which the Act would be valid ”)

As explained Infra, Gumbs has not shown that section 166b is unconstitutional on its face

1] 10 This Court is mindful of its role in our tripartite system of government and the deference

owed to the Legislature when making policy decisions Smith v Magras, [24 F 3d 457, 465 (3d

Cir 1997) (‘ [T]he doctrine of separation of powers applies with respect to the coordinate branches

of government in the Virgin Islands ) The Court emphasizes that [t]he people of the Virgin

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Islands speak through the voice of [the] Legislature ’ and the judiciary does not sit to second guess

its informed judgment Azdle v People of the V1 59 V I 215 228 (V I 2012)‘ see also Denms

v Untied States, 341 U S 494, 539—40 (1951) ( How best to reconcile competing interests is the

business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but

to be respected unless outside the pale of fair judgment ”) In the Virgin Islands, duly enacted

legislation enjoys a “presumption of constitutionality ” Kell v Dawes, 63 V I 462, 472 (V I Super

Ct 2015) With these general principles in mind, the Court turns to the appropriate standard of

judicial scrutiny for each claim

1] ll Gumbs raises three constitutional challenges to the MMA 3 $250,000 damages cap Her

first claim is that the Act violates the equal protection provision of the 1954 Virgin Islands Revised

Organic Act 5 ( ROA ) Bill of Rights V I C Rev Org Act of 1954 § 3 (codified 48 U S C §

1561 (2018)) see Fawkes v Sarauw 66 V I 237 247 (V I 2017) (noting that the ROA functions

as a de facto constitution for the territory) Second, she claims the Act violates the due process

provision of the ROA Gumbs does not allege that the MMA violates the analogous provisions in

the United States Constitution Her first two arguments are primarily based on the Virgin Islands

Supreme Court’s recent decision in Balbom v Ranger Am 0f the VI Inc , 70 VI 1048 (V I

20l9) (summarized below) cert dented 140 S Ct 651 Finally Gumbs alleges that the Act

violates the right to trial by jury contained in the Seventh Amendment to the United States

Constitution and made applicable to the Virgin Islands through the ROA The legal landscape is

complex, so the Court first orients the claims

1] 12 When evaluating whether a legislative act violates the due process or equal protection

provisions of the federal Constitution, the United States Supreme Court employs a tiered

framework of scrutiny See United States v Carolene Prods Co 304 U S 144 152 n 4 (193 8) If

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the legislative act burdens a fundamental right or discriminates between classes of people based

on race, national origin, or alienage status, the United States Supreme Courts applies strict scrutiny

to evaluate the constitutionality Plyler v Doe 457 U S 202 217 (1982) This is the most

demanding standard under which a law will be upheld only if it is narrowly tailored to timber

compelling governmental interests ” Grutter v Bollmger, 539 U S 306, 326 (2003) If a legislative

act discriminates on the basis of gender or against non marital children, intermediate scrutiny

applies MISS Umv for Women v Hogan, 458 U S 718, 724 (1982) To survive intermediate

scrutiny, the law must be substantially related to an important governmental interest Id If a

legislative act does not burden a fundamental right or classify people based on suspect traits, it is

subject to the least demanding level of judicial scrutiny, rational basis review F C C v Beach

Commc ms, 508 U S 307, 313 (1993) Laws evaluated under rational basis review are generally

upheld and need only be rationally related to a legitimate state interest to survive Belle Terre v

Boraas, 416 U S l, 2 (1974) (holding that lines drawn by legislatures in economic and social

legislation will be respected by courts against the charge of violation of the equal protection clause

if the law is reasonable, not arbitrary, and bears a rational relationship to a permissible state

objective) Most state supreme courts have adopted analogous frameworks for evaluating

challenges to legislative acts premised on equal protection or due process provisions of state

constitutions See e g Lujan v (010 State Bd of Educ 649 P 2d 1005 1014 (Colo 1982)

'| 13 The Virgin Islands Supreme Court has endeavored to adopt a similar framework for

interpreting the equal protection and due process provisions of the RCA See Balbom, 70 V I at

1089 90 Acting pursuant to its Article IV power, Congress extended certain protections of the

United States Constitution to citizens of the Virgin Islands as well as additional, and sometimes

parallel, guarantees set out in section 3 of the ROA, known as the Virgin Islands Bill of Rights

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Recently, the Virgin Islands Supreme Court held that it has the authority to interpret the Bill of

Rights provisions in the ROA as affording greater protections than the analogous provisions of the

United States Constitution Balbom 70 V I at 1089 90 ( [W]e conclude that this Court has the

power to interpret the equal protection and due process clauses found in the Bill of Rights to the

Revised Organic Act in accordance with how those provisions have been interpreted by state courts

of last resort interpreting their state bills of rights ”) In this case, the Court is faced exclusively

with the lowest tier of equal protection and due process claims

1] 14 Before proceeding further. a briefoverview of the Balbom decision is in order In that case,

the Virgin Islands Supreme Court struck down 20 V I C § 555, which capped non economic

damages in actions arising out of motor vehicle accidents at $100,000 The plaintiff, Frederic

Balboni, claimed damages in excess of $100,000 and argued that the cap violated his rights to

equal protection, due process, and trial by jury Balboni, 70 V I at 1052 The Court interpreted

Balboni’s claims as raising challenges to section 555 s compliance with the ROA’s Bill of Rights,

rather than the United States Constitution Id at 1060 The Court then found that Congress intended

the Virgin Islands judiciary to have the same authority to interpret the Bill of Rights provisions of

the ROA as a state court of last resort interpreting its own state constitution Id at 1089 90 Having

found this authority, the Court analyzed Balboni’s claims, ultimately holding that section 555

violated the ROA s guarantee of equal protection Id at l 105 The Court did not reach Balboni 5

due process or trial by jury arguments Id

‘ 15 In evaluating the equal protection challenge, the Court decided against wholesale adoption

of the United States Supreme Court 5 tiered framework of judicial scrutiny Id at 1096 With

respect to the lowest tier, rational basis review, the Court found that it had been widely criticized

as a virtual rubber stamp of truly minimal review 1d at 1094 (quoting LAURENCE H TRIBE,

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AMERK AN CONSTITUTIONAL LAW § 16 32 at 1610 (2d ed 1988)) Instead of adopting the United

States Supreme Court’s form of rational basis review, the Balboni court looked to approaches used

by state courts of last resort finding that many employed a heightened level of review, even when

evaluating legislative classifications based on economic or social status Id The Balbom court then

adopted heightened rational basis review, or “rational basis with bite,” as the appropriate standard

for evaluating equal protection claims premised on the RCA Id at 1096

1| 16 The Court proceeded to strike down section 555 on equal protection grounds, finding that

the damages cap did not serve its alleged purpose and was based on impermissible governmental

objectives Id at 1 105 Section 555 contained no legislative findings to support the amount of the

cap, leaving the Court to speculate as to why it was enacted Id at 1098 99 The defendants argued

that the purpose of the cap was to stabilize the car insurance market, but the Court rejected this

justification because there were no legislative findings to that effect 1d at [099 l 102

Moreover, the record suggested the “Legislature endorsed the cap out of an animus for personal

injury attorneys and plaintiffs Id Because the cap was not reasonably related to a legitimate

legislative purpose, it failed heightened rational basis review and violated the ROA’s equal

protection guarantee 1d at 1105

i The Virgin Islands Bill of Rights Equal Protection Provision

1| 17 The Fourteenth Amendment protects individuals from unfair and unequal treatment by

governmental actors U S Const amend XIV The parallel provision in the Virgin Islands Bill of

Rights, guarantees that [n]o law shall be enacted in the Virgin Islands which shall deny to any

person therein equal protection of the laws ” V I C Rev Org Act of 1954, § 3 When a law is

challenged on equal protection grounds, the challenging party must demonstrate that it

differentiates between classes of people on an arbitrary or impermissible basis See e g , City of

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Cleburne v Cleburne ang (tr , 473 U S 432, 440 (1985) ( The general rule is that legislation

is presumed to be valid and will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest ”)

Y 18 When the classification is based on economic or social status, rather than a protected trait,

the United States Supreme Court employs its least stringent standard of scrutiny, rational basis

review To survive this level of judicial scrutiny, the action must only ‘ bear some rational

relationship to legitimate state purposes ” San Antonio Indep Sch Dist v Rodriguez, 411 U S l,

40 (1973) If the reviewing court can hypothesize a legitimate purpose for the classification, and

the government action is rationally related to that purpose, the statute will be upheld F C C v

Beach Commc ns, 508 U S 307 313 (1993) (‘ [I]n areas of social and economic policy, a statutory

classification that neither proceeds along suspect lines nor infringes fundamental constitutional

rights must be upheld against [an] equal protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the classification ) Heightened rational basis

review, on the other hand, requires “a court to analyze the actual justification for the statute, rather

than engage in speculation by considering any and all possible reasons for its enactment ’ Balbom,

70 V I at 1094-95

f 19 In evaluating Gumbs equal protection challenge, this Court is bound by Balbom Gumbs

challenges section 166b as denying her, and other medical malpractice victims with severe inj uries,

equal protection of the law She does not allege that section 166b involves any suspect

classifications therefore her claim is subject to the lowest tier of scrutiny As instructed by the

Virgin Islands Supreme Court, “heightened rational basis review represents the appropriate

standard for determining the validity of a Virgin Islands statute under the equal protection clause

of the Virgin Islands Bill of Rights ” Balbom, 70 VI at 1096 Therefore, the first question this

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Court will address is whether section 166b 5 $250,000 cap on combined economic and non

economic damages withstands heightened scrutiny, or rational basis with bite, against Gumbs

equal protection challenge

ii The Virgin Islands Bill of Rights Due Process Provision

1] 20 The Fifth and Fourteenth Amendments guarantee that no person shall be deprived of “life,

liberty, or property, without due process of law ” U S Const amends V, XIV Again, the

Virgin Islands Bill of Rights contains a parallel provision which reads [n]o law shall be enacted

in the Virgin Islands which shall deprive any person of life, liberty, or property without due process

of law V I C Rev Org Act of 1954, § 3 Due process consists of procedural and substantive

components Procedural due process generally guarantees an individual the right to notice, fair

procedures, and a hearing before a neutral decisionmaker Mathews v Eldridge, 424 U S 319, 334

(1976) Procedural due process ‘is flexible and calls for such procedural protections as the

particular situation demands” Id (quoting Morrzssey v Brewer, 408 U S 471, 481 (1972))

Substantive due process “provides heightened protection against government interference with

certain fundamental rights and liberty interests Washington v Glucksberg 521 U S 702, 720

(1997) When evaluating a substantive due process claim, courts ask whether the government has

infringed upon a protected liberty Id at 721 If a fundamental right is at stake, courts apply strict

scrutiny, if no fundamental right is at stake, courts apply rational basis review Thus, the due

process analysis proceeds much like the equal protection analysis Mayo v WIS Injured Patients

& Families Comp Fund 914 N W 2d 678 691 (Wis 2018) ( While equal protection and due

process challenges may have different implications, the analysis under both the due process and

equal protection clauses is largely the same ’)

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' 21 The Virgin Islands Supreme Court has not expressly decided whether heightened rational

basis review applies to claims that a statute violates the due process provision of the RDA See

Balbom, 70 VI at 1096 However, this Court has not found support for applying heightened

rational basis review to equal protection claims and traditional rational basis review to substantive

due process claims, nor did Defendants provide any authority for such an approach 2 In fact, forty

six of the fifty states and the federal courts apply the same standard for due process claims not

implicating fundamental rights as they do for equal protection claims not based on suspect

classifications 3 Recognizing that this is an issue of first impression for the Virgin Islands, this

2 South Dakota appears to be the only state that applies a higher standard of scrutiny to the lowest tier of due process claims State v 09139, 656 N W 2d 30 40 (S D 2002) (applying rational basis for equal protection claim) Lyons v Lederle Labs DIV of Am Cyanamia’ Co 440 N W 2d 769 771 (S D 1989) (same) Knowles ex rel Knowles v United States (In re Certification of Questions of Law) 544 N W 2d 183 189 (S D 1996) (applying real and substantial relationship test for due process claim) The only other state applying different standards across the lowest tier of due process and equal protection claims is New Hampshire, which uses the converse approach Dow v Town ofEfingham 803 A 2d 1059 1063 (N H 2002) (stating that New Hampshire applies rational basis to substantive due process claims and “fair and substantial relationship” test to equal protection claims) Delaware does not have an equal protection clause or principle in its constitution See Hughes v State 654 A 2d 241 (Del 1994) The Mississippi Supreme Court has occasionally signaled that an implied equal protection principle exists in the Mississippi Constitution 3 due process clause, but it generally evaluates equal protection claims using the federal approach See Miller v State 740 So 2d 858 865 (Miss 1999) Mississippi 8d of Nursing v Belk 481 So 2d 826 830 (Miss [985) 3 See Beach Commc ns 508 U S at 313 Gideon v Ala State Ethtcs Com 379 So 2d 570 573 74 (Ala 1980)( Since the instant case involves neither a ‘suspect class nor a fundamental right, the rational basis test is the proper test to apply to either a substantive due process challenge or an equal protection challenge )' Hilbeis v Anchorage, 61 1 P 2d 31 40 (Alaska 1980) Valley Nat I Bank v Glover 159 P 2d 292 299 (Ariz 1945) Eller Media Co v City ofTucson 7 P 3d 136, 139 (Ariz Ct App 2000) ( ‘[T]he correct standard for reviewing both constitutional claims is the rational basis test ) Howard v F0)! Smith 845 S W 2d 497 499 500 (Ark 1993) ( [T]he due process analysis is the same as the equal protection analysis )' Johnson v Dep I ofJustice 341 P3d 1075 1082 (Cal 2015) ( [F]ederal due process and equal protection principles are persuasive for purposes of the state Constitution ) State by Colo Stale Claims 3d ofDIV ofRIsk Mgm! v DeFoor 824 P 2d 783 787 (Colo 1992) Bloomer v 3d ofCounty Comm rs of Boulder County 799 P 2d 942 948 (Colo 1990) Ramos v Town of Vernon 76] A 2d 705 729 (Conn 2000)( Equal protection rational basis review is for all material purposes indistinguishable from the analysis in which we would engage pursuant to a due process claim ) Lane v Chiles 698 So 2d 260 263 (Fla [997), State v Holland 841 S E 2d 723 728 (Ga 2020) Daoang v Dep tofEduc 630 P 2d 629 633 (Haw 1981) Bin! v Creative Forest Prods 697 P 2d 818 823 (Idaho 1985) ( The applicable standard of analysis under a due process challenge is the same as under an equal protection challenge whether the challenged law bears a rational relationship to a legitimate legislative purpose )' People v Hollms 971 N E 2d 504 516 (III 2012) Pulliam v State 345 N E 2d 229 241 (Ind 1976) Behm v City of Cedar Rapids 922 N W 2d 524 540—41 (Iowa 2019)‘ Peterson v Garvey Elevators Inc 850 P 2d 893, 897 (Kan 1993) ( ‘The test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors ”), Commonwealth Nat Res & Emil Pro! Cabinet v Kentec Coal Co , 177 S W 3d 718 724-26 (Ky 2005) Progresswe Sec Ins Co v Foster 71] So 2d 675 685 88 (La 1998) Aseptic Packaging Counczl v State 637 A 2d 457 459—461 (Me 1994) (applying slightly different articulations of a rational basis

13 Gumbs v Schneider Regional Medical Center, et aI Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

Court is guided by Balbom, which emphatically rejected traditional rational basis review when

considering an equal protection challenge Id at 1094 (‘[S]tate courts of last resort have

overwhelmingly rejected rational basis review ”) The reasoning in Balbom, combined with

the approaches taken by the federal courts and forty six states, convinces this Court that analogous

standards should apply across the lowest tier of equal protection and due process claims Moreover,

a statute that survives heightened review necessarily survives the more forgiving traditional

rational basis review Thus, in finding that section 166b survives heightened rational basis review,

this Court need not definitively resolve which standard should apply to due process claims Murrell

v People ofthe VI 54 V I 338 347 (V I 2010)( [C]ourts possess an obligation to avoid deciding

constitutional issues needlessly ’) (quotations omitted)

1122 Gumbs challenges the damages cap on the grounds that it deprives her of due process of

law by impeding her full and fair access to the courts and the jury Gumbs does not assert that any

of her fimdamental rights arising under substantive due process have been abridged, so this Court

will employ the heightened rational basis review standard enunciated in Balbom in considering

standard to due process and equal protection claims) Tyler v City ofColl Park 3 A 3d 421 435 (Md 2010)( [T]he test for determining whether a statute violates the equal protection component of Article 24 is nearly identical to the due process examination )' Goodrzdge v Dep (ofPub Health 798 N E 2d 941 960 (Mass 2003) Phillips v Mime Inc 685 N W 2d 174 178 (Mich 2004) ( ‘[T]he tests for due process and equal protection are essentially the same ) Fletcher Flops v City ofMinneapolis No A18 1271 2020 Minn LEXIS 360 at *3 (July 29 2020) 0 Neil v Bame 568 S W 2d 761 767 (Mo 1978)’ Mon! Cannabis Indus Ass n v State 368 P 3d 1131 1148 (Mont 2016) Cm ens 0f Decatw for Equal Educ v Lyons Decatur Sch Dist 739 N W 2d 742 763 (Neb 2007) Martinez v Marus.c.ak 168 P 3d 720 731 (Nev 2007) Drew Assacs ofN J Ltd P Shlp v Travtsano 584 A 2d 807 812 (N J 1991) Cummingsv X RayAssocs ofNM P C 9l8P 2d 1321 1332 (N M 1996) Hernande v Robles 855 N E 2d 1 20 (N Y 2006) Rhyne v K Mart Corp 594 S E 2d 1 15 (N C 2004)‘ Hoots v K B (In the Interest afA B) 663 N W 2d 625 636 (N D 2003) Simpkms v Grace Bl ethren Church ofDel 75 N E 3d 122 135 (Ohio 2016) Ross v Peters 846 P 2d 1 107 11 18 (Okla 1993) Urton v Hudson 790 P 2d 12 16 (Or Ct App 1990) Vail v Bandan 630P2d 1339 1342 (Or Ct App 1981) Driscollv Corbett 69A 3d 197 215 (Pa 2013) Fed HI” Capital LLCV City ofPr owdeme 227 A 3d 980 991 (R I 2020) Denene Inc v City ofCharleston 596 S E 2d 917 920 923 (S C 2004) Riggs v Bursar: 941 S W 2d 44 48 (Tenn 1997)‘ Mayhew v Town ofSunnyvale 964 S W 2d 922 939 (Tex 1998) State v Candedo 232 P 3d 1008 1014 (Utah 2010)’ State v Dre] 233 P 3d 476 486 87 (Utah 2010) Parker v Gore'yk 744A 2d410 419 (Vt 1999) Statev Stewart 438 A 2d 671 677 (Vt 1981) Willlsv Mullett 561 S E 2d 705 709 (Va 2002)’ Chang Yzm v City ofSeattle 451 P 3d 694 698 (Wash 2019)‘ State v Alfonso 702 P 2d 1218 1221 (Wash Ct App 1985)’ Gibson v W Va Dep t ofHIghways 406 S E 2d 440 444 n 8 (W Va 1991)‘ Mayo 914 N W 2d at 691 White v State 784 P 2d 1313 1315 (Wyo 1989)

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this claim Accordingly, the second question before this Court is whether the $250,000 cap on

combined economic and non economic damages complies with procedural due process and

withstands heightened scrutiny against a substantive due process challenge

iii The United States Constitution Right to Trial by Jug

1123 The Seventh Amendment provides that “in suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re examined in any Court of the United States, than according

to the rules of the common law ’ U S Const amend VII The Seventh Amendment applies to the

Virgin Islands through section 3 of the RCA, which states

[T]he following provisions of and amendments to the Constitution of the United States are hereby extended to the Virgin Islands to the extent that they have not been previously extended to the territory and shall have the same force and effect there as in the United States or in any State of the United States the first to ninth amendments inclusive

VIC Rev Org Act of [954 §3 see also Antilles Sch Inc v Lembach 64 VI 400 433 n 21

(V I 2016) (explaining that the Seventh Amendment was extended to the Virgin Islands by the

1968 amendments to the ROA) In Antzlles School, the Virgin Islands Supreme Court declined to

address whether the Seventh Amendment’s reference to “common law should be interpreted

according to common law principles in 1791 the original date of enactment, or 1968, the date of

application to the Virgin Islands 64 V I at 433 11 2| cf. Caron v First Pa Bank N A 16 V I

169, 173 (V I Terr Ct [979) (assessing 3 Seventh Amendment argument by looking to common

law practices in 1791) The Court did note, however, that it was “likely bound by the United States

Supreme Court 3” Seventh Amendment jurisprudence Id

T; 24 This Court agrees and believes it is bound by United States Supreme Court precedent

interpreting the Seventh Amendment The United States Supreme Court uses a historical test to

15 Gumbs v Schneider Regional Medical Center, et a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

determine whether the Seventh Amendment 5 guarantee has been abrogated Markman v

Westview Instruments 517 U S 370 376 (1996) Under this approach courts ask (1 )whether the

cause of action was tried at law at the time of the founding or is at least analogous to one that was;

and (2 ) if the action in question belongs in the law category, whether the particular trial decision

must fall to the jury in order to preserve the substance of the common law right as it existed in

1791 Id Gumbs insists that the medical malpractice damages cap infringes upon the jury s fact

finding role when determining damages, which is protected by the Seventh Amendment Gumbs

claim is clearly one that was historically tried at law and not in equity, Ross v Bernhard, 396 U S

531, 533 (1970), so this Court need only inquire as to whether section 166b’s $250,000 cap on

combined economic and non economic damages preserves “the substance of the common law

right to trial by jury

[II ANALYSIS

1] 25 Having settled on the appr0priate standards ofjudicial scrutiny, the Court now turns to the

merits of Gumbs challenges The Court also evaluates precedent from state courts faced with

similar challenges, finding that the weight of authority supports upholding section l66b In short,

this Court is convinced that the Virgin Islands Legislature acted on an informed and legitimate

basis when enacting section l66b The Virgin Islands has unique difficultly obtaining quality

medical care and the Legislature s decision to limit medical malpractice awards in order to reduce

government spending and increase the availability of services for residents is one that must be

respected Absent a showing that the Legislature acted improperly or arbitrarily in enacting section

166b, the Court will not interfere with its reasoned judgment While in certain cases the cap will

leave victims undercompensated, the Legislature has determined limiting malpractice awards is in

the best interest of the general public and the government treasury

l6 Gumbs v Sclmeuler Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

A Gumbs’ Equal Protection Claim Fails

1126 The Court first finds that section 166b’s $250,000 damages cap implicates the equal

protection clause of the Virgin Islands Bill of Rights On its face, section l66b distinguishes

between medical malpractice victims and other classes of personal injury victims Balbom, 70 V I

at 1093 It also categorizes medical malpractice victims and precludes those with total damages

greater than $250,000 from obtaining full compensation for their injuries 1d Last, it treats victims

with greater than $75,000 of non economic damages differently than other victims, again by

precluding them from obtaining full relief Thus, section 166b contains facial classifications

treating certain categories of plaintiffs differently than others

1] 27 Having decided that the equal protection clause is implicated by section 166b, the Court

turns to the standard of judicial scrutiny Under Balbom, heightened rational basis review is the

appropriate standard, at least where no suspect classification is involved, as is the case here 1d at

1096 When applying this standard, a court must analyze the actual justification for the statute”

and ‘conduct an inquiry to determine whether the legislation has more than a speculative tendency

as the means for furthering a legislative purpose ” Id at 1095, see also Moore v Mobile Infirmary

Ass n 592 So 2d 156 166 (Ala 1991) Johnson v St Vincent Hosp Inc 404N E2d 585 597

(Ind 1980) Carson v Maurer 424 A 2d 825 830 (N H 1980) Mayo 914 N W 2d at 692 To

survive, the statute must rest on clear legislative findings and at least a ‘ modicum of evidence

that the means employed further the ends Balbom 70 V I at 1097

1| 28 The Balbom court identified the three analytical approaches to heightened rational basis

review 1 ) the ends approach where a statute is invalid if it seeks an impermissible governmental

purpose, 2) the means approach, where a statute is invalid if it lacks a sufficient connection

between the classification and the purpose and 3 ) the combination approach where a statute is

17 Gumbs v Sclmetder Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

invalid because of some impermissible governmental purpose and an insufficient relation between

the classification and other legislative purposes Id at 1095 96 If a statute fails any of the three,

it is unconstitutional Id Both the ends and combination approaches ask the Count to consider the

“actual legislative purpose as well as any inference or wanting signs of an improper purpose, such

as suspicion of improper influence, backroom dealings, discrimination, or a desire to harm a

politically unp0pular group ’ Id 1101 02 Without legislative history, the Court cannot ascertain

any signs of improper purpose or motive, and therefore focuses on the means approach

1] 29 Gumbs argues that the MMA lacks a clear purpose, which is only articulated in Davis v

Omztow 0111, 883 F 2d 1155 (3d Cir I989), and therefore it cannot withstand heightened scrutiny

Pl 5 Mot 12 In Davis the Third Circuit stated that the MMA calls attention to the need for

health care, the increased cost of insurance, the discouragement of health care providers by reason

of escalating insurance premiums and concludes that the ‘public interest requires that insurance

premium levels, for health care professionals must be retained in order to maintain high quality

medical services for the Virgin Islands ”’ Davis, 883 F 2d at 1159 n 5 (quoting 1986 VI Sess

Law 170) Gumbs alleges that this basis for enacting the damages cap is insufficient to survive

heightened scrutiny because it is based on ‘ pure speculation and [lacks a] modicum of evidence

indicating that the arbitrary cap serves the purpose of lowering premiums ” Pl 3 Mot 13 She

contends that the MMA stands in contrast to statutes that were upheld because the legislative

findings contained “actuarial studies, documentary evidence, and testimony demonstrating a

connection between a cap and that purpose See P] s Mot 13; see also Balbom, 70 V I at 1097

(citing Mayo 914 N W 2d at 693 95 Evans ex rel Kutch v State 56 P 3d 1046 1053 54 (Alaska

2002)) She also points out, correctly, that the holding in Davis is not controlling because the Third

l8 Gumbs v Sclmeuler Regumal Medical Center, et a1 Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

Circuit utilized the more deferential rational basis review rejected in Balbom Pl ’3 Mot 13 n 4,

see also Balbom 70 V I at 1096 n 45

1] 30 Gumbs found that many non economic damages caps have been held unconstitutional by

states’ highest courts See generally Pl ’5 Mot 7, see also N Broward Hosp DIS! v Kalztan, 219

So 3d 49, 59 (Fla 2017) (finding damages cap unconstitutional on state equal protection grounds);

Atlanta Ocuplasnc Surgery P C v Nestlehutt 691 S E 2d 218 223 (Ga 2010) (concluding that

the caps infringe on a party’s constitutional right, as embodied in [the Georgia Constitution], to a

jury determination as to noneconomic damages”); Lebron v Gottheb Mem 1 Hosp , 930 N E 2d

895, 914 (Ill 2010) (finding statute limiting noneconomic damages in medical malpractice cases

unconstitutional under state separation of powers clause) Non economic damages compensate

successful plaintiffs for past and future pain and suffering, loss of enjoyment of life, and other

intangible losses

‘ 31 Additionally, Gumbs demonstrated that most states do not cap economic damages, which

compensate successfiJI plaintiffs for past and future medical costs and other actual monetary losses

The few states that cap economic damages generally have caps over a million dollars, some

incrementally increasing with inflation Pl 5 Mot 6 (citing Va Code Ann § 8 01 581 15 (2020)

(sliding scale from $1 500 000 to $2 950 000 through 2031) Ind Code Ann § 34 18 14 3 (2020)

(sliding scale cap of $1 250 000 in 2017 to $1 800 000 after 2019) Colo Rev Stat 13 64 302

(2020) ($1 000,000 flat cap)) As the Virgin Islands cap is an outlier, joining only five states in

capping total damages and at a far lower amount, Gumbs argues section 166b denies the worst

injured medical malpractice victims equal protection under the law

1| 32 Gumbs also argued that the $250 000 cap should be struck down because the Legislature

failed to establish how limiting a victim’s past and future economic damages bears any rational

19 Gumbs v Sclmetder Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

connection to insurance premiums for healthcare professionals in the Virgin Islands Id at 14 She

claims that irrespective of the cap, the territory is experiencing a healthcare crisis and there is no

evidence of lower insurance premiums Id at 14 Consequently, the lack of an evidentiary

connection between the cap on economic damages and the malpractice premiums means that

section l66b is not rationally related to a legitimate purpose

1| 33 Here, however, Gumbs fails to recognize several pertinent factors Gumbs overlooks the

fact that medical malpractice insurance in the Virgin Islands is procured and largely paid for by

the government Gumbs relies heavily on Balbom but fails to address the significant differences

between car insurance and medical malpractice insurance With a single malpractice insurance

policy covering nearly all providers, limiting the possible payout will clearly lower the premiums

The Balbom court found that section 555 did not serve its purpose of lowering car insurance

premiums because “private market actors” could simply refuse to ‘ write an automobile insurance

policy to cover non economic damages greater than $100,000 ” Balbom, 70 V I at 1103 The

Court found that this would have the same effect as the cap and therefore no connection could be

drawn between the statute and lower premiums Car insurance, also in the Virgin Islands, is

provided by large companies who can spread their risk nationally and the government regulates

the market but it does not participate or back the coverage See 20 V I C §§ 701 713 (2020) In

contrast, medical malpractice insurance is provided and largely paid for by the Virgin Islands

government The MMA mandates providers have coverage up to the exact amount of the cap By

ensuring that liability is coextensive with coverage, the MMA ensures victims will be

compensated; and by limiting liability to $250 000 the MMA stabilizes premiums in a relatively

small and volatile insurance market

20 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

1| 34 Defendants, on the other hand, argue that Balbom is distinguishable for the following

reasons First, unlike Balbom where section 555 treated certain classes of people differently based

on their injury, section 166b only treats people differently based on the amount of recovery sought

and does not discriminate based on the type of injury suffered Defs Opp n 9 10 This argument

is without merit because section 166b treats people who have injuries from medical malpractice

differently than those with other types of injuries by limiting recovery Second, Defendants argue

that faced with the loss of legislative history, the Court should presume a proper justification for

the statute, rather than infer that it was enacted on an improper basis Id at II The Legislature

could have conducted an extensive and comprehensive analysis supported by concrete facts and

statistics, actuarial studies, or expert testimony to support the cap, and without access to legislative

history, the Court cannot infer to the contrary Id at 10 11 The Court agrees with Defendants on

this point In the absence of legislative records, this Court cannot opine that the MMA was

insufficiently supported when enacted, nor hypothesize an improper motive See generally Id at

10 ll, 15 The Court will not invalidate duly enacted legislation simply because the legislative

history is unavailable

‘ 35 In addition, Defendants argue that the available evidence surrounding the enactment of

166b demonstrates a clear and proper legislative purpose Specifically Defendants point out that

“physicians were threatening to go on strike due to medical malpractice premiums and “cease all

but emergency attention at the Knud Hansen and Charles Harwood Memorial Hospitals by

October 15 unless the medical malpractice insurance problem was resolved ” Id at 11, see also

Defs Ex (Governor Doctors To Meet on Malpractice, The Daily News, Oct 9, 1975)

‘ 36 In terms of the parties contentions, the Court agrees with Gumbs that the Virgin Islands’

$250,000 cap is an outlier when compared to states with privately backed medical malpractice

21 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

insurance schemes The Court does not agree that the lack of legislative history supports an

inference of impermissible purpose With no indication of impermissible motives and all available

evidence suppotting a legitimate purpose, the Court will presume the Legislature acted with proper

motives Moreover, as further explained below, the Court finds the legislative purpose readily

apparent from the face of the statute

1] 37 While Balbom clearly controls the analytical framework for evaluating constitutional

challenges to damages caps, it does not dictate the outcome in every case Balbom’, 70 V I at 1097

(“[C]ourts have consistently upheld damage[s] caps against equal protection challenges when the

govemment has pointed to clear legislative findings as to the purpose of the legislation—combined

with at least a modicum of evidence indicating that the cap serves that purpose ) (emphasis

added) Under Balbom, a damages cap will survive heightened rational basis review using the

means approach if there is some actual connection (other than mere speculation) between the cap

actually selected and the goal of stabilizing the market See Balbom, 70 V I at [102 Here, the

Court finds a clear legislative purpose and a modicum of evidence that the cap serves that purpose

‘l38 First, section l66b is a central feature in the larger statutory scheme governing medical

malpractice in the territory Found in Title 27, Subchapter IX, of the Virgin Islands Code, the

MMA consists of a comprehensive strategy to govern medical malpractice claims, liability, and

insurance Among other things, the MMA controls the healthcare provider group insurance policy;

sets up a health care consumer complaint review committee; permits counter claims by the insured

party; limits attorney contingency fee percentages; sets up a fund for payment of claims, and sets

the parameters for insurer liability and coverage 27 V I C §§ 166—166m Most relevant here,

section 166e provides that [t]he Commissioner of Health is hereby authonzed and directed to

procure a group insurance policy which shall cover the cost of Professional Liability Insurance for

22 Gumbs v Schneider Regional Medical Center, et a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

health care providers ’ § l66e(a) Not only does the government procure the policy, it pays most

of the premiums

(1) For said health care providers exclusively employed by the Government of the Virgin Islands on a full time basis, the entire premium shall be borne by the Government ofthe Vtrgm Islands (2) For said health care providers who, in addition to their employment with the Government of the Virgin Islands, engage on their own time in a private practice, one half of the premmm shall be patd for by sazd prowder and one half by the Government ofthe Virgin Islands

Id (emphasis added) see also Berry v Currert 837 F 2d 623 627 (3d Cir 1988) ( [T]he cost of

malpractice insurance is borne in significant amount by the Government of the Virgin

Islands ”) Full time private practitioners are covered by the policy but must reimburse the

government for their premiums Id (“Health care providers who engage in private practice and

who participate in the group insurance policy procured by the Commissioner of Health shall

reimburse the Government for their premiums ”) This section mandates that all providers

practicing in the territory obtain coverage of $250,000 per occurrence 1d It fimher establishes a

“Medical Malpractice Risk Management Trust Fund to provide coverage against professional

medical malpractice liability § l66e(g)(l)

1] 39 When examining the MMA, the legislative purpose behind the damages cap becomes

clear it reduces the cost of the insurance premiums paid by the government Further, it helps to

stabilize what would otherwise be a geographically isolated and volatile coverage area See Berry,

837 F2d at 627 (‘ [T]he $250,000 limit is an essential feature of the legislative scheme for

stabilizing the cost of malpractice insurance ’) The cap seeks to ensure the fund is not depleted

by a few large claims, thereby providing compensation to a greater number of victims Reducing

government costs while attempting to foster greater availability of healthcare services to the

territory is, of course, a permissible legislative objective

23 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

'| 40 In addition to reducing government costs and drawing healthcare providers to the Virgin

Islands the MMA seeks to ensure greater healthcare access for residents Provisions guarantee

that residents on ‘ Medicare and Medicaid and veterans of the United States Military Services ’ will

receive medical services, even through private practitioners See 27 V I C § l66e(f) The Virgin

Islands has only two hospitals and two federally qualified health centers 4 The territory struggles

to recruit and retain providers many of whom are deterred by low payment rates resulting in part

from a large percentage of uninsured patients and high operating costs 5 In fact, the Virgin Islands

has the least amount of healthcare professionals per capita of any state or territory 6 Most states

have approximately 5,000 healthcare professionals per 100,000 people, while the Virgin Islands

has only 1,210 healthcare professionals serving at least 106,977 people 7 The situation is further

complicated by the uncertainty and limits on federal Medicaid funding 8 By mitigating the cost of

medical malpractice insurance premiums for healthcare providers, the statute attempts to ensure

healthcare access for a greater number of residents in a quzdpro qua arrangement

' 41 Having found a clear and permissible legislative purpose, the only question remaining is

whether there is a “modicum of evidence” that section l66b serves its purpose While it is not

known exactly how the $250,000 limit was arrived at the Court is satisfied that the Legislature

deliberated and considered the amount of the cap In fact, the provision containing the monetary

4 Samantha Artiga et 31 Health Ca; e m Fuel to R100 and the U 8 Virgin Islands A SIX Month Check Up After the Storms KAISER FAMILY FOUNDATION (April 24 2018) https www kff org medicaid/issue brief health care in puerto rico and the u s virgin islands 3 six month check upafter the stoms report/ 5 Id 6 Total Healthcai e Employment KAISER FAMILY FOUNDATION (May 2018) https ” www kff org. other state indicator total health care employmentl?activeTab map¤tTimeframe O&selectedDistributions total health care employment&sortModel "/0739 «22colId°/o22 °022Total%20Health9/o20Care°/020Employment o«122,9 62250rt9/o22 "/022desc°/022°/o7D (compiling data from State Occupational Employment Stansncs Survey, BUREAU OF LABOR STATISTICS (May 2018) http www bls gov oes tables htm ) 7 Id 3 D Andrew Austin ECOI‘IOMIC and FIscal Conditions m the U S V1; gm Islands CONGRESSIONAL RESEARCH SERVICES (Feb 13 2020) https »fas org/sgp crs row/R45235 pdf

24 Gumbs v Schneider Regional Medical Center, et al Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

cap was amended in 1993 to make clear that it applied “per occurrence ” 1993 VI Sess Laws

5864 9 Had the Legislature felt the cap was too low, or that it should be adjusted to reflect inflation,

it could have easily increased the amount, or established a sliding scale over a set period, at that

time The Legislature’s refusal to increase the cap when revisiting section 166b, demonstrates the

intent, or at least acquiescence, that the cap remain flat at $250,000 in 1993, and into perpetuity or

until new legislation is introduced Defendants stated that the cost of malpractice premiums in the

Virgin Islands has not increased since 1993 Assuming this is correct, nearly thirty years of stable

premiums is at least a modicum of evidence that the cap works Some practitioners may still be

leaving the Virgin Islands but the Court has not found support for Gumbs’ contention that there

is an ongoing “healthcare crisis Concerns about exactly how effective the cap is or whether it

should be increased are better directed to the Legislature

T 42 The MMA is also distinguishable from section 555 and most other states medical

malpractice damages caps because the legislative purpose is not solely to stabilize the insurance

market Another central purpose of section l66b’s cap is to reduce government spending Without

the cap, the government would be required to pay multi million dollar awards to medical

malpractice victims that could quickly deplete funds In Brady v Cmtron, the Virgin Islands

9 The relevant amendments read

Title 27 Chapter I Subchapter IX Section 166, Virgin Islands Code, is amended by redesignating subsections (g) through (I) as subsections (i) through (It), respectively, and adding new subsections (g) and (h) to read as follows

“(g) occurrence’ means all losses sustained as a result of the same act or omission constituting negligence, which constitutes a single occurrence, happening, or event for purposes of applying the S 250 000 coverage limitation as contained in Section l66b of this Chapter ”

(a) Subsection (a) is amended to read as follows

(a) The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($ 250,000) per occurrence ’

25 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

Supreme Court found that the MMA was enacted because ‘ the public interest requires that

insurance premium levels, for health care professionals must be retained in order to maintain high

quality medical services for the Virgin Islands 55 V I at 816 (citing 1986 V I Sess Laws 170)

If the government’s malpractice insurance scheme fails for lack of fimds, the Virgin Islands would

be forced to turn to the private market From what the Court can glean, this is exactly what the

MMA was enacted to avoid

1| 43 Based on all available information this Court holds that section 166b does not violate the

equal protection clause of the RDA The statutory scheme, subsequent amendments, and earlier

courts’ articulations of the legislative intent have satisfied this Court that section 166b was enacted

for an important and legitimate governmental purpose Moreover, the $250,000 cap appears to be

an acceptable means of serving that purpose, supported by evidence that it is working

B Gumbs’ Due Process Claim Fails

1144 Second, Gumbs alleges that l66b’s damages cap “unconstitutionally infringes upon the

due process rights of Virgin Islanders because it deprives citizens of access to the courts and a

full and fairjury trial See Pl 3 Mot 15 On the basis that her recovery will be limited to $250,000

Gumbs claims she is deprived of possible economic damages that are her property Id at 16 She

argues that section 166b constitutes “a taking and redistribution of [Gumbs’] money in favor of a

physician ” Id Meanwhile Defendants argue that because the Virgin Islands Supreme Court

never enunciate[d] any new heightened rational basis standard regarding due process, this Court

must apply traditional rational basis review Defs Opp’n 15 16 They urge that 166b should

survive because the government has a legitimate interest in “maintaining low malpractice

premiums and there is evidence that the cap is operating as intended Id It is not entirely clear

26 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

whether Gumbs is alleging a procedural due process violation or a substantive due process

violation, so this Court will evaluate both See Pl ’5 Mot 15

1| 45 The primary components of procedural due process are notice and the right to be heard

Fuentes v Shevm, 407 U S 67, 80 (1972) Procedural due process is required where a deprivation

of a constitutionally protected interest has occurred See People ofthe Virgin Islands v Rohn, 55

V I 100, 118 (V I Super Ct 201 l) (finding thata driver 5 license is a property interest that cannot

be deprived without due process of law), In re Najawzcz, 50 VI 104, 110 12 (V I Super Ct

2008) (upholding statutory seizure of financial assets as complying with procedural due process

requirements) Goodum v St (law Goodwm 23 VI 80 90 (VI Terr Ct 1987) (holding thata

ten day TRO keeping someone out of his home invoked procedural due process protections) When

considering a procedural due process claim, courts balance three factors (1 ) the private interest

(2) the risk of erroneous deprivation from the procedures in place and any probable value of

alternative procedural safeguards, and (3 ) the govemment’s interest Rohn, 55 VI at 118, see

also Mathews, 424 U S at 335 This first requires identification of the nature and weight of the

private interest affected by the official action challenged Rohn, 55 V I at 118

1] 46 Gumbs’ procedural due process argument fails at the initial step She alleges the cap on

damages constitutes a taking of her property but fails to establish a constitutionally protected

property interest in the hypothetical $2 million dollar award She cites no caselaw in support of

finding a constitutionally protected property interest in a potential jury verdict See Pl 3 Mot 16

A mere expectation of a $2 million damages award is insufficient to warrant procedural due

process protection See Garcza v Govt of (he I I 24 VI 131 135 (VI Terr Ct 1989) (holding

that procedural due process protections are not required where someone has “a mere expectation in

a property interest ) Cases within this jurisdiction clearly establish the defendant must be at risk

27 Gumbs v Schneider Regional Medical Center, et a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

of governmental deprivation of an already existing private interest Estate ofLudmgton v Jaber,

54 V I 678 684 (V I 2011) Kell 63 V I at 471' Pate v People ofIhe VI 62 V I 271 297 98

(V I Super Ct 2015) The Court has not found precedent where a potential award was a

constitutionally protected private interest” and declines to hold otherwise See Duke Power Co

t Carolina Envtl Study Grp 438 U S 59 88 n 32 (1978) Lucas v United States 807 F 2d 414

421 22 (5th Cir 1986)( [A] person has no property no vested interest, in any rule of the common

law Indeed, statutes limiting liability are relatively commonplace and have consistently been

enforced by the courts ’) The United States Supreme Court has clarified that a constitutionally

protected property interest is more than an “abstract need or desire” for a benefit, instead one must

have a legitimate claim of entitlement to it Bd 0fRegents v Roll: 408 U S 564 577 (1972)

‘ 47 Gumbs’ alleged property interest in the $2 million falls far short of the traditional property

interests protected by procedural due process Even if Gumbs could demonstrate a property

interest, she is currently being afforded the normal protections associated with procedural due

process WISCOHSII’I v Constantmeau, 400 U S 433, 436 (1971) (holding that procedural due

process requires a person to be given notice and an opportunity to be heard) Gumbs was on notice

that her recovery would be limited by section 166b, which was enacted forty five years ago

Gumbs’ argument that the cap deprives [her] of access to the court,” obviously fails because she

is currently before the Court having her grievances heard by a neutral decisionmaker There is no

identifiable property interest in a potential damages award so the $250,000 medical malpractice

damages cap does not infringe on Gumbs procedural due process rights guaranteed by the RCA

1] 48 Second, Gumbs argument that the damages cap violates her substantive due process rights

falls short for the same reasons as her equal protection claim The Balbom court found that it has

the power to interpret the RCA 5 due process provision like a state court of last resort interprets

28 Gumbs v Schneider Regional Medzcal Center, et a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

its state s constitutional provisions Balbom, 70 VI at 1089 90 But the Court never reached

Balboni 5 due process argument, and thus never ruled on what standard would apply See Id

However, as described earlier in this opinion, this Court believes heightened rational basis review

is the appropriate standard for evaluating a substantive due process claim that does not involve

fundamental rights

1| 49 Gumbs argues that the cap deprives her of access to the court and a full and fair jury trial

Again, Gumbs has been afforded all the rights and remedies available to any party, including

requesting a jury trial Ultimately, because section 166b does not implicate any identifiable life,

liberty, or property interest, nor is there an abrogation of unenumerated fundamental rights, her

claim is subject to the same heightened scrutiny analysis conducted above Having already

concluded section 166b survives heightened rational basis review, the Court holds that the

$250,000 medical malpractice damages cap does not violate the due process provision of the

Virgin Islands Bill of Rights

C Gumbs’ Trial by Jury Claim Fails

'] 50 Gumbs also argues that the damages cap unconstitutionally impedes on her right to a trial

by jury The Seventh Amendment applies to the Virgin Islands through § 3 of the RCA and states

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and n0 fact tried by a jury, shall be otherwise reexamined in any Court of the United States than according to the rules of the common law

U S Const amend VII see also Kennon v Gzlmer 131 U S 22 28 (1889) (holding that the

Seventh Amendment is “in full force” in all territories of the United States) In Murrell v People,

54 VI 338 (VI 2010) the Virgin Islands Supreme Court held that the right to a jury trial is

fundamental in criminal trials but did not extend the right to civil trials See Balbom, 70 V I at

29 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

1129 (Cabret, J , dissenting) ( [T]his court has recognized that the right to a jury trial is a

fundamental right in a criminal trial, we have never found the civil right to jury trial to be

fundamental ) The United States Supreme Court has never incorporated the right to trial by jury

in civil cases against the states and it routinely upholds federal limitations on the right Minneapolis

& S L R Co v Bombolls 241 U S 211 217 220 (1916) see eg Parklane Hoszery Co v

Shore, 439 U S 322, 336 (1979) ( The Seventh Amendment has never been interpreted in the rigid

manner advocated On the contrary, many procedural devices developed since 1791 that have

diminished the civil jury s historic domain have been found not to be inconsistent with the Seventh

Amendment ) Colgrove v Bamn, 413 U S 149, 157 (1973) ( [N]ew devices may be used to

adapt the [common law right to trial by jury] to present needs and to make of it an efficient

instrument in the administration ofjustice ”) (quoting Ex parte Peterson, 253 U S 300, 309

10 (1920))

!| 51 Gumbs believes that section l66b “unconstitutionally impedes a jury’s fact finding ability

by limiting economic damages to $250,000 Pl s Mot 17 18 She also alleges that the cap works

as a statutory remittitur and is therefore barred by Antzlles Sch Inc v Lembach, 64 V I 400 (V I

2016), which rejected the common law doctrine of remittitur On the other hand, Defendants argue

that the cap does not interfere with the jury s fact finding role, emphasizing that the judge is merely

enforcing a “consequence of those factual determinations ” Defs ’ Opp’n 17 Thus, the damages

cap does not infringe on Gumbs right to a jury trial because it merely limits the legal consequences

of a jury s findings a very much permissible scope of action for the Legislature Again, on this

point, the Court agrees with Defendants

11 52 The Court is persuaded by the Third Circuit’s reasoning in Dams v 0m1t0w01u, 883 F 2d

1155 (3d Cir 1989) Echoing Boyd v Bulala 877 F 2d 1191 (4th Cir 1989) the Third Circuit held

30 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

that “even though it is the jury’s role to determine the facts, it is not the role of the jury to determine

the legal consequences of its factual findings that is a matter for the legislature ” Dams 883

F 2d at I 161 Once the jury has made its findings of fact it has fulfilled its constitutional function,

but it cannot mandate compensation as a matter of law ’ Id , see also Phllllps, 684 N W 2d at 181

82 (explaining that the jury may only determine what happened, how, and when, but may not

resolve the law itself) In this way the civil system parallels the criminal system where the jury

determines the facts and the court determines the outcome of those facts using the guidance and

requirements set forth by the Legislature Phillips 684 N W 2d at 183 The Third Circuit further

reasoned that ‘ if the legislature could abolish a cause of action entirely without violating the

Seventh Amendment, then it could properly limit the damages that could be recovered Dams,

883 F 2d at 1161' see also Arbmo v Johnson & Johnson 880 N E 2d 420 431 (Ohio 2007) ( So

long as [the jury s] fact finding process is not intruded upon and the resulting findings of fact are

not ignored or replaced by another body’s findings, awards may be altered as a matter of law

There is no dispute that the right to trial by jury does not extend to the determination of questions

of law ) (emphasis in original) By enforcing the $250,000 damages cap, a judge is merely

applying the law to the facts already determined by the jury in accordance with statutory limitations

prescribed by the Virgin Islands Legislature

1] 53 Under the United States Supreme Court 5 approach to analyzing Seventh Amendment

claims, this Court must ask whether the damages cap preserves the substance of the common law

right” by looking for historical analogies Markman 517 U S at 376 The United States Supreme

Court has routinely upheld alterations to traditional common law jury practices so long as the

jury s fundamental function is preserved See Tull v United States, 481 U S 412, 426 (1987)

(holding that the Seventh Amendment only preserves incidents of trial deemed fundamental to the

31 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

right) Gallon ay v United States 319 U S 372 392 (1943) (same) Dimeck v SchIedt 293 U S

474, 486 (1935) (finding that the judicial practice of remittitur would not violate the Seventh

Amendment) Gasoline Prods Co v Champlm Ref. Co 283 U S 494 498 (1931) (stating that

the Seventh Amendment is concerned, not with [the] form, but with [the] substance of the right

to trial by jury) Moreover, in analyzing an application of the Seventh Amendment to New Mexico

prior to statehood, the United States Supreme Court held that an act of the territorial legislature

that restructured how questions were submitted to a jury and verdicts were rendered did not violate

the right to trial byjury Walkeri NM & S P R ( o 165 U S 593 596(1897)( So long as this

substance of right is preserved the procedure by which this result shall be reached is wholly within

the discretion of the legislature, and the courts may not set aside any legislative provision in this

respect because the form is different from that which obtained at the common law ”) The

historical practice of remittitur is most analogous to a statutory damages cap, though there are

significant differences that are explained below The United States Supreme Court has found,

albeit indirectly, that remittitur does not violate the Seventh Amendment because it leaves the

fundamental jury fianction and findings intact Dimeck, 293 U S at 486( [R]emittitur has the effect

of merely lopping off an excrescence ) As section 166b does not remove the traditional

factfinding function of the jury, nor place it in the hands of the judge, this Court believes section

166b leaves the substance of the right intact and therefore does not violate the Seventh

Amendment

1| 54 Gumbs argues that the damages cap acts as a remittitur because it ultimately vests [the

power of a jury] with a judge who is statutorily required to reduce a jury verdict higher than

$250,000 ’ P] s Mot [8 Meanwhile Defendants contend that the damages cap is not like a

remittitur because courts in this jurisdiction have previously held that the Seventh Amendment

32 Gumbs v Schneider Regional Medical Center, et a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

does not “prevent the Legislature from passing a statute that involves a predetermined limitation

based on what it believes to be sound policy for the Virgin Islands Defs Opp’n 18 (citing

Balbom 2018 V I LEXIS 4 at * 12)

1] 55 Gumbs relies on Antilles School, where the Virgin Islands Supreme Court declined to

recognize the common law doctrine of remittitur in this jurisdiction 64 V I at 437 That case held

that Virgin Islands courts do not have the judicial power of remittitur, but can alter a jury s verdict

only if it is supported by sufficient evidence in the record, or if a reduction is compelled under the

United States Constitution Id at 437 39 Remittitur is a discretionary power of the trial judge,

distinct from a damages cap, which represents a legislative judgment that removes power from the

trial judge 1d at 430; Davis, 883 F 2d at 1162 The second clause of the Seventh Amendment

speaks to the role of the court and “proscribes reexamination of any fact tried by a jury,” it does

not limit the power of the Legislature Balbom 70 V1 at 1128 (citing Dams 883 F 2d at 1162

( [I]t is significant to us that unlike the first clause of the Seventh Amendment which in broad

terms preserves the right to a trial by jury, the second clause speaks exclusively of the role of the

court The second clause makes no mention of the other branches of govemment ”)) Nothing in

the language of the Seventh Amendment restricts the Legislature from enacting recovery caps like

the one in section 166b, instead, it precludes a court from independently interfering with a jury’s

verdict Davzs, 883 F 2d at 1165 ( Where it is the legislature which has made a rational policy

decision in the public interest, as contrasted with a judicial decision which affects only the parties

before it, it cannot be said that such a legislative enactment offends either the tennS, the policy or

the purpose of the Seventh Amendment ) Therefore the issue becomes whether the Legislature

can limit the jury s remedial authority, and the Court believes it can 1d at 1160

33 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

1| 56 Complying with section l66b in no way requires the Court to violate the Seventh

Amendment This Court has preserved the right to a jury trial for fact finding purposes regarding

total damages and the $250,000 damages cap does not require the Coutt to re examine the jury s

factual determinations Rather by imposing the cap, a court is “implementing a policy decision of

the legislature Id at l 162 The Court must give substantial deference to the Virgin Islands

Legislature and apply the predetermined extent and amount of damages allowable in a malpractice

action The Seventh Amendment does not apply to the power of the legislature, it only precludes

a judicial redetermination of facts U S Const amend VII ( and no fact tried by a jury, shall be

otherwise reexamined in any Court”) It is firmly within the authority of the Legislature to modify

the nature and extent of common law causes of action Therefore, the Court finds that section 166b

does not violate the Seventh Amendment

D Analogous State and Territorial Court Rulings

11 57 In support of this ruling the Court also undertakes a comparative analysis of what state

and ten’itorial courts have done when faced with similar challenges to medical malpractice

damages caps A review of cases yields varying results, which can be attributed to both the

variation in legislation and in the constitutional standards applied In terms of statutory damages

caps, seventeen of the fifty states have no cap on economic or non economic damages in the

medical malpractice context The remaining thirty three states all cap non economic damages, and

five within the thirty three cap economic damages as well '0 The caps on non economic damages

range from $250,000 to $815,000 and sometimes increase periodically to account for inflation

'0 Center for Justice and Democracy Caps on Compensatwy Damages State Law Summary NEW YORK LAW SCHOOL (Aug 2020), https centerjd org content/fact sheet caps compensatory damages state law summary, accord Dani Alexis Ryskamp, Medical Malpractice Damages Caps A State By State Comparison, EXPERT INSTITUTE (June 2020) https ’www expertinstitute com/resources insights medical malpractice damages caps a state by state comparison/

34 Gumbs v Schnetder Regional Medical Center, er a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

The five states that limit both economic and non economic damages have caps ranging from

$500,000 to $2 25 million again many increasing by year with inflation These five states with

“umbrella caps” Colorado, Indiana, Louisiana, Nebraska, and Virginia are the most relevant,

because section l66b similarly caps total damages, albeit at a lesser amount The Court also

examines cases where state courts addressed constitutional challenges to non economic damages

caps because much of the same reasoning holds true

1| 58 Approaches taken by other United States Territories are instructive and help explain the

rationale behind the MMA Many territories face similar challenges in recruiting quality medical

professionals and those legislatures have intervened to ensure services are available to residents

For example, Guam requires arbitration for all medical malpractice claims and limits damages in

claims against government employed healthcare providers to $300,000 10 Guam Code Ann §

10102 (2020) 5 Guam Code Ann § 6301 (2020) The rationale for the Guam limitation is that

“unlike private parties, the government has a continuing responsibility for the whole people of

Guam One or two suits cannot defeat the rationale for the government's existence by so depleting

the treasury that the government cannot function ” 5 Guam Code Ann § 6301 cmt In a wrongful

death action against the Guam Memorial Hospital Authority, the Guam Supreme Court upheld the

damages cap over equal protection, due process and right to trial by jury challenges after finding

many state courts had rejected similar challenges Newby v Government, 2010 Guam 4,11] 39-47

1] 59 Puerto Rico caps damages at $150,000 in medical malpractice actions against the

government or any healthcare provider working at a government facility P R Laws Ann tit 32,

§ 3077 (2020) (limiting damages in actions against healthcare professionals working

exclusively at public health institutions of the Commonwealth of Puerto Rico regardless of

whether said institutions are being administered or operated by a private entity ), see also P R

35 Gumbs v Schneider Regional Medical Center, er a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

Laws Ann tit 26, § 4105 (2011) (broadly defining the healthcare professionals shielded from

liability) The Puerto Rico Supreme Court upheld the damages limitations over an equal protection

and fundamental rights challenges using rational basis review Egmtdzo Defendmz Collazo v

Puerto RICO MF R v VICIOI' M Alamo Carola 134 D P R 28 134 PR Sup LEXIS 28 (P R

1993) Likewise, the Northern Mariana Islands and American Samoa have faced issues with

malpractice claims against government healthcare providers and constrained funding to pay

awards ” In fact, American Samoa does not permit lawsuits against individual healthcare

providers, only the government can be sued for malpractice claims and damages are limited to

$500,000 See Aga v Amerzcan Samoa Government, 3 Am Samoa 2d [30 (1986) The

Commonwealth of the Northern Mariana Islands, another territory with limited providers enacted

legislation to shield healthcare providers from liability See 2006N Mar I Pub Law 15 22 With

such a small risk pool, no reputable U S insurance carrier will sell medical malpractice coverage

[to the Northem Mariana Islands] So, the private practitioners simply do without, and the

government providers are immune from suit by statute "2 The Court finds these observations

helpful to contextualize the healthcare and medical malpractice insurance landscapes in United

States Territories, where the government is heavily involved, in comparison to the mainland, where

private insurance plays a much larger role

1| 60 Turning back to the states, at least six state supreme courts have struck down medical

" Fili Sagapolutele, Ame; [can Samoa Gov I Drafting Malpractice Legislation CUNNINGHAM GROUP (Jan 3, 2008) https www cunninghamgroupins com/american samoa govt drafting malpractice legislation The Northern Mariana Islands, Guam, and American Samoa have population sizes most comparable to the Virgin Islands and all less than 200 000 The U S Census Bureau Begins to Count U S Island Areas Populations, UNITED STATES CENSUS BUREAU(Mar 2 2020) https ’www census gov newsroom/press releases 2020 2020 island areas populations html " Medical Malpractice PACIFIC BASIN TELEHEALTH RESOURCE CENTER http www pbtrc crypolicy regulations malpractice

36 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

malpractice damages caps on constitutional grounds, including Alabama,” Florida,‘4 Georgia,IS

Illinois,'6 New Hampshire,'7 and Washington '3 Numerous state courts have upheld damages caps

against constitutional challenges as well See e g , Evans v State, 56 P 3d 1046, 1051 (Alaska

2002) (finding $400,000 non economic damages cap did not violate right to trial by jury), Mayo

914 N W 2d at 697 (upholding $750,000 non economic damages cap on heightened rational basis

review) Notably, courts in all five states with combined economic and noneconomic damages

caps have upheld those caps over constitutional objections See Scholz v Metro Pathologists P C ,

851 P 2d 901 907 (Colo 1993) Johnson 404 N E 2d at 601' Oliver v Magnolia Clmzc 85 So

3d 39 44 (La 2012) (reaffirming constitutionality) Gourley v Nebraska Methodist Health Sys

663 N W 2d 43 65 (Neb 2003) Pulltam 509 S E 2d 307 310 (Va 1999) (reaffirming

constitutionality)

1] 61 Courts have been especially willing to uphold combined caps where the government plays

a role in backing the insurance scheme or paying the awards See e g , Packard v Jam! Sch Dzst ,

661 P 2d 770 775 (Idaho Ct App 1983) (upholding $100 000 cap in actions against government

on heightened rational basis review), Johnson, 404 N E 2d at 601 (upholding $500,000 combined

cap over multiple constitutional objections); Estate of Carglll v Rochester, 406 A 2d 704, 708

(N H 1979) (upholding $50,000 cap because it was reasonable that the legislature limited the

'3 Moore, 592 So 2d at 171 (striking $400 000 non economic damages cap on state equal protection grounds using heightened scrutiny) "' N Bioward Hosp DIS! , 219 So 3d at 50 (striking $500,000 non economic damages cap on state equal protection grounds using rational basis review) '5 Atlanta Oculoplastlc Surgery, 691 S E 2d at 221 (striking $350,000 non economic damages cap for violating state constitution’s right to trial by jury) '6 Lebron, 930 N E 2d at 908 (striking $500,000 non economic damages cap for violating state constitution 5 separation of powers provision) '7 Branmgan v UsHalo 587 A 2d 1232 1235 (N H 1991) (striking $875,000 non economic damages cap on state equal protection grounds using heightened scrutiny) '8 Sofie v FIbrebaard Corp , 771 P 2d 711 728 (Wash 1989) (striking formulaic non economic damages cap for violating state constitution’s right to trial by jury)

37 Gumbs v Schneider Regional Medical Center, e! a! Cite as 2020 V! Super 87 Case No ST 17 CV 272 Memorandum Opinion

financial strain to be imposed on certain governmental units by large judgments or high insurance

premiums ’) In upholding Indiana 5 combined cap, the state 3 highest court was persuaded the cap

served an integral purpose in the government backed malpractice insurance scheme Johnson, 404

N E 2d at 601 It reasoned that

The Legislature responded [to a healthcare crisis} by creating the patient compensation fluid and the residual malpractice insurance authority, thereby providing a government sponsored risk spreading mechanism as an alternative to insurance strictly from private sources In so doing it set the limitations upon recovery The mechanism cannot operate without the voluntary participation of health care providers The limitation may well provide health care providers with the incentive to participate

[d Similarly in Butleri Flint Goodrich Hosp ofDlllardl mv 607 So 2d 517 521 (La 1992)

the Louisiana Supreme Court upheld a $500,000 combined cap over an equal protection challenge

largely because it found the legislature had made a reasoned judgment that the cap and state backed

insurance scheme would draw more healthcare professionals to the state Accord Oliver, 85 So 3d

at 44 (reaffinning Butler) It found that the cap was a reasonable means of ensuring more

professionals had malpractice insurance and guaranteed a solvent fund to pay judgments Butler,

607 So 2d at 522 Balanced against the competing concern that the worst injured victims would

not receive full compensation the court could not say that the legislature had made an

unreasonable or arbitrary judgment Id

‘l 62 This Court is persuaded by the reasoning of the Indiana and Louisiana Supreme Courts,

which addressed situations most closely resembling that of the Virgin Islands See Brady, 55 V I

at 815 (noting that the MMA uses language almost identical to the Indiana Medical Malpractice

Act) Like both Indiana and Louisiana, the Virgin Islands has a relatively low combined economic

and non economic damages cap While this type ofcap appears most vulnerable to a constitutional

challenge because it leaves certain victims seriously undercompensated, legislatures enacting these

38 Gumbs v Sclmetder Regional Medical Center, e! a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

caps have had good reason These state governments have taken over the malpractice insurance

systems in an effort to reduce premiums and ensure the availability of healthcare to the general

public This has required legislatures to make the difficult decision to leave some victims

undercompensated to protect the malpractice payment fimds from depletion Striking a balance

that compensates the greatest number of victims through a solvent fund, while ensuring the

availability of healthcare is exactly the type of decision entrusted to the representative branch of

government and this Court will not second guess the Legislature s judgment of where the public

interest lies Dennis v United States 341 US 494 539—40 (195 l) ( How best to

reconcile competing interests is the business of legislatures, and the balance they strike is a

judgment not to be displaced by ours, but to be respected unless outside the pale of fair

judgment ) Ime GrandJury Proceedings 103 F 3d 1140 1154 (3d Cir 1997)( The legislature

not the judiciary, is institutionally better equipped to perform the balancing of the competing policy

issues ) In re Estate of George 59 V I 913 924 (V I 2013) ( [I]t is not the function of this

Court to substitute its judgment for that of the Legislature ”) (quoting Brady v Gov? of the V I ,

57 V I 433, 443 (VI 2012)) Like courts in Colorado, Indiana Louisiana, Nebraska, Virginia,

Guam, and Puerto Rico, this Court upholds the Legislature s judgment that a damages cap is a

necessary component of the Virgin Islands healthcare landscape

IV CONCLUSION

‘ 63 The MMA 5 $250 000 cap on total damages represents a legislative decision to limit

awards in order to lower the government paid malpractice insurance premiums and judgments

From the record, it appears the Legislature acted with proper motives and the best interest of Virgin

Islands citizens in mind The limitation on damages is a rational means of minimizing government

costs and ensuring the availability of healthcare, supported by evidence that it is working On these

39 Gumbs v Schneider Regumal Medical Center, er a! Cite as 2020 VI Super 87 Case No ST 17 CV 272 Memorandum Opinion

grounds, the Court finds that section l66b does not infringe on Gumbs’ equal protection, due

process, or trial by jury rights guaranteed by the ROA and the United States Constitution, therefore

the motion will be denied An order of even date follows

/ '\ / E J 2 Dated October Z 2, 2020 [g am ax Renee G Carty ATTEST Judge of the S etior Court T mara Charla of the Virgin Is ends 1 C1 the Cou {

By Lo 1 Boynes Tys '0 C ief Deputy Cl rk / I/

40 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

JAH I DAH GUMBS ) ) CASE NO ST 17 CV 272 Plaintiff ) ) v ) ACTION FOR DAMAGES ) SCHNEIDER REGIONAL MEDICAL ) CENTER MARIA C JUELLE P A JAMES W ) JURY TRIAL DEMANDED FREEMAN M D JOHN DOE AND JANE DOE ) ) Defendants ) Cite as 2020 VI Super 87 )

ORDER

AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it

is hereby

ORDERED that Plaintiff’s motion is DENIED and it is further

ORDERED that copies of this Order shall be distributed to Julie German Evert,

Esquire, Lee! Rohn, Esquire, E Michael Brezina, III, Esquire, and Royette Russell,

Esquire fl ‘ / “‘1 y /

Dated October ( 2 2020 (LI2 Q 21/ ( d/ Renée Cu bs Carty A EST Judge of th uperior Court Ta ra Charles of the Vi Islands Cle the Court

By ”a Lori oynes Tyson Chi? Deputy Clerk “9 M