Joe Oliver v. Magnolia Clinic

• Court: Louisiana Court of Appeal
• Decided: November 17, 2010
• Docket: CA-0009-0439
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-439

JOE OLIVER, ET AL.

VERSUS

MAGNOLIA CLINIC, ET AL.

********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2005-3907 HONORABLE CLAYTON DAVIS, PRESIDING **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, J. David Painter, and Shannon J. Gremillion, Judges.

AFFIRMED IN PART; REVERSED IN PART; EXCEPTION OF RES JUDICATA DENIED.

Saunders, J., concurs in the result with written reasons.

Painter, J., concurs in the result for the reasons assigned by Saunders, J.

Gremillion, J., dissents and assigns written reasons.

Todd A. Townsley Marcus P. LaCombe The Townsley Law Firm 3102 Enterprise Blvd. Lake Charles, LA 70601 (337) 478-1400 COUNSEL FOR PLAINTIFFS/APPELLANTS: Joe and Helena Oliver Richard B. Cappe1 Raggio, Cappel, et al. P.O. Box 820 Lake Charles, LA 70602 (337) 436-9481 COUNSEL FOR DEFENDANTS/APPELLEES: Magnolia Clinic and Susan Duhon

John Elliott Baker 321 N. Vermont Street #208 Covington, LA 70433 (985) 867-9068 COUNSEL FOR INTERVENOR/APPELLEE: State of Louisiana

Nadia Marie de la Houissaye Longman Russo P.O. Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 COUNSEL FOR INTERVENOR/APPELLANT: Louisiana Patients Compensation Fund

Guice Anthony Giambrone, III Kelly A. Dugas 3421 N. Causeway, 9th Floor Metairie, LA 70002 (504) 891-4091 AMICUS CURIAE: Louisiana Association of Nurse Practitioners COOKS, Judge.

Joe and Helena Oliver (Plaintiffs), individually and on behalf of their minor

child, Taylor Oliver, appeal the trial court’s judgment applying the Louisiana Medical

Malpractice Act’s cap, reducing a six million, two hundred and thirty-three thousand

dollar ($6,233,000) jury general damage award in their favor to five hundred

thousand dollars ($500,000) and denying their petition seeking to have the Medical

Malpractice Act’s (MMA) limitation, La.R.S. 40:1299.42(B), as applied to their

claims, declared unconstitutional. The Louisiana Patients’ Compensation Fund (PCF)

also appeals the judgment and alleges the court committed error in awarding the

Olivers past medical expenses and judicial interest on these expenses. Susan Duhon,

the nurse practitioner whom the Medical Review Panel and jury found committed

malpractice, filed a peremptory exception of res judicata challenging the Olivers’

right to appeal the trial court’s judgment reducing the jury’s general damage award

because, as she alleges, the Olivers only appealed the denial of the declaratory

judgment and not the judgment on the underlying tort claim.

We reject the position of the PCF and Nurse Duhon for reasons that follow. We

also find, as the Supreme Court similarly held in Sibley v. Board of Sup’vrs of

Louisiana State Univ., 477 So.2d 1094 (La.1985) (commonly referred to as Sibley

II), that the MMA’s cap on general damage awards unconstitutionally disadvantages

and discriminates against Taylor and her parents, victims of nurse Duhon’s

malpractice, because of the severity of Taylor’s physical condition when compared

to other malpractice victims who receive full recovery for their injuries. We further

find the State failed to present sufficient evidence to show that any reasonable basis

exists today to continue such discrimination by expanding the MMA’s limitation on

general tort liability to include Nurse Practitioners, some of whom are

-1- “grandfathered” from having to complete the academic studies and degree

requirements found in La.R.S. 37:913(3)(a) and who choose to own and operate

private healthcare clinics in the State of Louisiana. We must declare the Act’s cap,

when used to limit this group of healthcare providers’ general liability for damages

caused to severely or catastrophically injured victims, not only discriminatory as

declared in Sibley II; but that its application, in these instances, violates the Equal

Protection Clause of Article I, Section 3 of the Louisiana Constitution. See Sibley II,

477 So.2d at 1103. We, therefore, are constitutionally mandated in this case to refuse

enforcement of the cap to insulate these practitioners from full liability for the harm

they cause without a reasonable basis having been advanced by the State or other

advocates as explained hereinafter.1

FACTS AND PROCEDURAL HISTORY

Susan Duhon, a registered nurse practitioner, opened The Magnolia Clinic to

provide primary care to pediatric patients in Southwest Louisiana. In 1974, Ms.

Duhon obtained a diploma in nursing from a hospital which later certified her as a

pediatric nurse practitioner in 1977. Currently, to qualify as a nurse practitioner, a

nurse is required to obtain a baccalaureate of science and a masters of science in

nursing. La. R.S. 37:913(3)(a). Although Ms. Duhon did not obtain any degree in

nursing from an institution of higher learning, she was allowed to escape the more

rigorous requirements enacted by statute with only a high school degree, under

the“grandfathered” exception.

Ms. Duhon became a qualified health care provider for purposes of the MMA

by purchasing the requisite malpractice insurance coverage from St. Paul Fire and

1 We note, while a majority agrees that the cap’s limitation should not be imposed in this case, and the judgment must be reversed in part, two members assign constitutional reasons and two members assign statutory reasons for rejecting the application of the cap. The matter was submitted to the Court following a request for en banc consideration of the case. The request was denied. We now elect to release the case “as is” and to await instruction from the Louisiana Supreme Court.

-2- Marine Insurance Company.2 Nurse Practitioners are required by La.R.S. 37:913 to

collaborate with a physician. Dr. Jennette Bergstedt, M.D. was the physician Ms.

Duhon selected and agreed to collaborate with when providing primary care from the

Magnolia Clinic which she operated as sole owner.

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor

began experiencing health problems. Her mother brought her to the Magnolia Clinic,

where she was treated exclusively by Ms. Duhon. The record indicates Taylor

presented several times per month with various complaints, including: Repeat

infections, persistent abdominal pain, nausea, vomiting, diarrhea, and anemia.

Taylor’s mother reported to Ms. Duhon that the child occasionally awakened at night

screaming from abdominal pain. During Taylor’s first year of life, she was treated

at the Magnolia Clinic on thirty-two (32) occasions.

Despite her statutory duty to consult with a physician when needed, Ms. Duhon

did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she

repeatedly offered only verbal reassurances to Taylor’s mother and prescribed over

thirty (30) medications, including antibiotics, to treat the child’s multiple complaints

and observable symptoms. Taylor’s mother testified when she asked to see Dr.

Bergstedt, she was told by Ms. Duhon the only time Taylor needed to see Dr.

Bergstedt was in connection with admission to a hospital.

On November 7, 2001, after no progress was made in Taylor’s health, her

mother brought her to Women & Children’s Hospital in Lake Charles, where Taylor

was treated for the first time by Dr. Bergstedt. Multiple tests were ordered by the

doctor, and she referred Taylor to Texas Children’s Hospital for specialized care.

2 The MMA limits the damages that may be awarded against health care providers who become “qualified” by presenting proof of the purchase of malpractice insurance or who deposit $125,000 in cash or other security with the PCF. La.R.S. 40:1299.42.

-3- Eventually, Taylor’s condition was diagnosed as neuroblastoma, a form of

childhood cancer originating in the nerve tissue. The scant medical records

maintained by the Magnolia Clinic revealed at approximately six (6) months of age,

Taylor developed severe bruising around the eyes–one of the telltale signs of

childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life,

a child has a ninety (90) percent chance of an event free survival. However, Taylor’s

opportunity to live a normal life was lost when her condition was not timely

identified.

Taylor has survived the cancer, but the quality of her life has been severely

diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine.

Her head is abnormally large and misshapen. Her eyes are abnormally large,

bulbous, and opaque with cataracts, rendering her legally blind. Her bones have

become weakened and brittle, such that she cannot participate in common youth

activities, and she struggles each day to overcome learning disabilities.

The Olivers pursued medical malpractice claims against Ms. Duhon and Dr.

Bergstedt. Ultimately, Dr. Bergstedt was dismissed from the suit. The matter was

tried before a jury, which returned a verdict against Ms. Duhon in favor of the

Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in

past medical expenses, and $3,358,828.00 in future medical expenses. The jury

awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00.

Attempting to avoid the harsh consequence of the MMA, which limits Taylor

and her parents recoverable general damages to $500,000.00 (one-twelfth of the

jury’s award), plaintiffs filed a Petition for Declaratory Relief asserting the MMA is

unconstitutional on several grounds. In their petition, they specifically alleged the

MMA: (1) Establishes an inadequate remedy in violation of Taylor’s right under Art.

-4- I, §22; (2) precludes any remedy for Mr. and Ms. Oliver, again in violation of Art. I,

§22; (3) violates the separation of powers provision of Art. V, §16 in that it

constitutes a prejudgment of the compensation award in medical malpractice cases,

which is the province of a district court; (4) creates an immunity in favor of health

care providers in violation of Art. III, §12(7); and (5) denies equal protection to

severely injured patients in violation of Art. 1, §3. They prayed that the court declare

the cap unconstitutional.

The State of Louisiana and the Louisiana Patients Compensation Fund (PCF)

intervened in the suit to challenge Plaintiffs’ attack on the constitutionality of the

MMA. The trial court rendered written reasons for judgment after conducting a full

Sibley II hearing. Initially, the trial court declared the cap constitutional in all

respects except its inclusion of nurse practitioners as qualified providers. The trial

court found there was no evidence demonstrating that there “was a crisis in the field

of nurse practitioners either at the time of the passage of the Act or today.” Further,

he observed the State offered no evidence to show a need for including nurse

practitioners in the class of healthcare providers protected by the MMA. He

concluded, while the cap was arguably necessary in 1975 (when the MMA was

adopted) for doctors and hospitals, extension of the Act to include nurse practitioners

does not logically follow without evidence to show “a reasonable basis” exists for

limiting their liability.

Ms. Duhon and the State filed a Motion for New Trial/Reconsideration on the

Issue of Constitutionality, alleging the trial court erred in declaring “the Louisiana

Medical Malpractice Act, La.R.S. 40:1299.41, unconstitutional even though the

Plaintiffs had only pled the unconstitutionality of La.R.S. 40:1299.42(B).” They

maintained there simply was no allegation that La.R.S. 40:1299.41(A)(1) (the listing

-5- of who are qualified healthcare workers) is overly inclusive. Thus, Ms. Duhon and

the State argued, since Plaintiffs never pled the unconstitutionality of La.R.S.

40:1299.41(A)(1), any constitutional challenge based on that ground was not properly

before the trial court. The trial court agreed, setting forth the following reasons:

The State’s main argument regarding this motion is that Plaintiffs did not properly raise the constitutional issue in the pleadings. A constitutional challenge must be specifically pled. The Plaintiffs never raised the issue of whether the Louisiana Medical Malpractice Act is overly broad due to its inclusion of nurse practitioners cap. As a result, the Plaintiffs’ argument fails on its face due to procedural insufficiency. The Court agrees with the State that the issue was not pled specifically. As a result the Court GRANTS the Motion for New Trial/Reconsideration on the Issue of Constitutionality and reverses its decision on the issue of constitutionality ruling the Medical Malpractice Act constitutional.

The trial judge then signed a judgment reducing the jury’s award to conform with the

limitation on general damage recovery and other restrictions of the Louisiana Medical

Malpractice Act. The Olivers appealed this judgment, arguing the trial court erred in

finding the Medical Malpractice Act’s limitation on recovery (the cap), La.R.S.

40:1299.42(B), is constitutional as applied to Ms. Duhon and Taylor in this case. Ms.

Duhon has raised a peremptory exception of res judicata, asserting the Olivers only

appealed the declaratory judgment and not the judgment on the verdict in the

underlying tort claim. The PCF also assigns as error the trial court’s award of past

medical expenses and the award of interest thereon.3

ANALYSIS

I. Peremptory Exception of Res Judicata.

Ms. Duhon filed a peremptory exception of res judicata alleging that the

Olivers did not appeal the judgment entered in the tort claim, but rather only the

judgment in their declaratory judgment action. Thus, she argues, the judgment on the

3 We further note, Ms. Duhon has not requested that we address the general damage amounts awarded by the jury.

-6- jury’s verdict is final. We disagree.

The judgment limiting Ms. Duhon’s liability to $100,000 was rendered on

December 30, 2008. The relevant portion of the trial court’s judgment read as

follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the challenge of the limitation on recovery imposed by the Louisiana Medical Malpractice Act La. R.S. 40:1299.42(B) is constitutional.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the amount of damages set forth in the original verdict of June 8, 2007 will be adjusted and reduced to the limitations imposed by the Medical Malpractice Act.

The trial court then reduced Ms. Duhon’s liability as the healthcare provider

from $6,000,000 to $100,000 pursuant to La.R.S. 40:1299.42(B). In their timely

appeal, the Olivers listed four separate errors committed by the trial court, all of

which clearly maintain that the MMA’s limitation on their recovery is

unconstitutional. Defendant Duhon contends in her exception that the Olivers

appealed “only” the judgment associated with the Declaratory Judgment action. The

Olivers note there are no other final judgments in this matter, other than the judgment

reducing Ms. Duhon’s liability from $6,000,000 to $100,000 based on La.R.S.

40:1299.42(B). We also note the Uniform Rules- Courts of Appeal 2-12.4 requires

that an appellant attach a copy of the complained of judgment. The Olivers attached

a copy of the December 30, 2008 judgment reducing their recovery to the amount of

the cap. An appeal from this judgment, therefore, was timely perfected by the

Olivers. We find no merit in Ms. Duhon’s peremptory exception of res judicata, and

it is denied.

II. The PCF’s Assignments of Error.

The PCF assigns two errors in the underlying tort judgment: The award of

Taylor’s past medical expenses and interest on these expenses.

-7- A. Medical Expenses.

The jury awarded Taylor past medical expenses of $629,728.24. The trial court

assessed these expenses against the PCF. The PCF complains that the judgment twice

references past medical expenses. The first is the specific recognition of the award

in the judgment. The second, the PCF argues, is contained in the succeeding

paragraph, in which the judgment provides, “[Taylor] is a patient in need of future

medical care and related benefits . . . . and is thus entitled to receive compensation

from The Louisiana Patients Compensation Fund and Oversight Board for all past,

present, and future medical and related services.”

The obligation of the PCF to pay “future medical care and related expenses”

is governed by La.R.S. 40:1299.43, which reads, in pertinent part:

B. (1) Future medical care and related benefits for the purpose of this Section means all of the following:

(a) All reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, incurred after the date of the injury up to the date of the settlement, judgment, or arbitration award.

(b) All reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provisions of such services, after the date of the injury that will be incurred after the date of the settlement, judgment, or arbitration award.

(2) Future medical care and benefits as used in this Section shall not be construed to mean non-essential specialty items or devices of convenience.

The plain wording of the statute is clear. Future medical care and related expenses

include all related reasonable medical expenses incurred from the date of injury up

to the date of judgment, and all such expenses that will be incurred after the date of

judgment. Accordingly, this assignment of error is without merit.

B. Judicial Interest.

-8- The PCF also assigns as error the award of judicial interest on the past medical

expenses. It cites no legal authority for its proposition, other than the fact that a lien

for medical expenses in favor of the Department of Health and Hospitals exists. We

note, neither the Code of Civil Procedure article 1921, nor our jurisprudence, allow

any discretion in the assessment of judicial interest. See Odom v. City of Lake

Charles, 00-1050 (La.App. 3 Cir. 1/31/01), 790 So.2d 51, writ denied, 01-1198 (La.

6/22/01), 794 So.2d 787. We affirm the award of judicial interest.

III. The Olivers’ Assignments of Error.

The Olivers assert the cap violates a number of provisions of the Louisiana

Constitution of 1974: (1) the “due process” and “adequate remedy” provisions of

La.Const. art. I, § 22; (2) the “separation of powers” provision of La.Const. art. 2, §

2; (3) the provisions of La.Const. art. III, §§ 2 and 12, in that it is a “special law”

granting privileges and immunities and changes the method of collecting debts and

enforcing judgments; (4) the provisions of La.Const. art. V, § 16, in that no

amendment to the constitution was ever adopted changing the original jurisdiction of

the district courts; and (5) the equal protection guarantee of La.Const. art. I, § 3.

Because we find the Olivers’ “equal protection” argument has merit, we elect not to

address the other constitutional challenges raised by them.

A. Equal Protection Challenge.

As can be seen in Arrington v. ER Physicians Group, APMC, 04-1235 (La.App.

3 Cir. 9/27/06), 940 So. 2d. 777, Plaintiffs in this case are not the first to attack the

constitutionality of the Medical Malpractice Act as applied to severely or

catastrophically injured victims based on the Equal Protection guarantee found in

Article 1, §3 of the Louisiana Constitution which provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs,

-9- or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

Although Plaintiffs in this case, like other litigants before them, assert that

applying the $500,000 MMA cap to reduce the jury’s general damage award will

result in them receiving an inadequate remedy for the severe harm occasioned by Ms.

Duhon’s negligence, this legislated consequence alone does not necessarily constitute

a violation of Louisiana’s constitutional guarantees. The Supreme Court made clear

in Everett v. Goldman, 359 So. 2d 1256 (La.1978), unless a fundamental right is

impacted or a separate or suspect classification is created, the legislature is

constitutionally free to limit damage recoveries or to grant immunities from suit so

long as it articulates a rational basis for the discriminatory treatment reasonably

related to the governmental interest sought to be advanced. Id. at 1266. The Supreme

Court has also held that “[t]he right of malpractice victims to sue for damages caused

them by medical professionals does not involve a fundamental constitutional right.

Thus, it is to be tested by the lesser standard of rational basis.” Id. at 1268-1269. The

rational basis offered by the State for applying the cap in this case is the same echoed

by it in all the prior cases addressing the limitation on recovery issue. The State

maintains the legislative purpose underlying enactment of the MMA’s $500,000 cap

in Louisiana was to assure available and affordable malpractice insurance for

healthcare providers, and to prevent flight of these professionals from this State. This

purpose, the State insists, is still the cap’s goal; and, it points out, Louisiana courts,

since the cap’s enactment, have found it rational and reasonably related to advance

the government’s interest in assuring accessible healthcare and lower healthcare costs

generally for citizens of this State. Sibley v. Board of Sup’rs of Louisiana, 462 So.2d

149 (La. 1985), (commonly referred to as Sibley I); Everett, 359 So. 2d 1256; Armand

-10- v. State, 00-1457 (La. App. 1 Cir. 6/21/02), 822 So. 2d 671, writ denied, 02-2036 (La.

11/1/02), 828 so. 2d 583; Ruiz v. Oniate, 00-2105 (La. App. 4 Cir. 12/27/01), 806 So.

2d 81; LaMark v. NME Hospitals, Inc. 542 so. 2d 753 (La. App. 4 Circ. 1989), writ

denied, 551 So. 2d 1334 (La. 1989).

But the “rational basis” offered by the State to ward off constitutional

challenges to the cap’s application in most cases has not been accepted without more

in cases involving severely or catastrophically injured victims. This is because the

equal protection right all citizens in Louisiana share, guaranteed in Art. 1, §3 of this

state’s constitution, limits the legislature’s authority to infringe upon not only

fundamental rights; but, it also limits the legislature’s power to enact laws that

“arbitrarily, capriciously, or unreasonably discriminate” against it citizens by creating

separate or suspect classifications “because of birth, age, sex, culture, physical

condition, or political ideas or affiliation.” When the State chooses to provide an

“adequate remedy” to some members of a class of victims and denies an “adequate

remedy” to other members of the same class because of their physical condition, it

creates a separate or suspect classification. Legislation that allows some medical

malpractice victims to receive full recovery for the injuries they sustained, but limits

the recovery of other victims whose injuries exceed $500,000 clearly creates two

classes of victims. In Sibley II, the Louisiana Supreme Court held the MMA’s

limitation in operation “classifies individuals because of their physical condition.”

It explained:

The law on its face is designed to impose different burdens on different classes of persons according to the magnitude of damage to their physical condition. The statute creates two classes: One, a group of malpractice victims each of whom have suffered damage that would oblige a defendant under our basic law to repair it by paying in excess of $500,000 dollars; another, a class consisting of victims whose damage would not require an award over this amount to make individual reparation. Victims in the former class are prevented from recovering

-11- the allowed full recovery. Damage to the physical condition of each malpractice victim is the primary element of his being assigned to one of the two classes. Thus, the statutory classification disadvantages or discriminates against one class of individuals by reason of or because of their physical condition.

Id. at 1108-1109.

This Court further noted in Arrington:

Moreover, not only does the MMA’s cap discriminate between victims in the same class, it also creates subclasses of catastrophically or severely injured victims of malpractice by limiting recovery to one award of $500,000. The subclasses are created depending on whether the catastrophically or severely injured patient has a spouse, minor children or parent. For example, as recognized in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, 446 (2005), a single patient may recover in Louisiana the entire $500,000 while a married catastrophically injured victim must share the cap with his or her spouse and children.

Arrington, 940 So.2d at 791-792.

Thus, the Louisiana Supreme Court held in Sibley II that the State must

articulate more than a “rational basis” for the cap in cases involving severely or

catastrophically injured victims of malpractice to avoid Article 1, §3’s constitutional

bar to its enforcement. It must also “show that the law does not arbitrarily,

capriciously, or unreasonably discriminate against [this] disadvantaged class by

demonstrating that the legislative classification substantially furthers a legitimate

state objective.” Sibley II, 477 So.2d at 1104.

Taylor is a severely injured victim of malpractice. Her injuries occurred when

she was only a baby and will last a lifetime with devastating and debilitating effects

upon her capacity to perform even the most basic human functions. The State

offered no evidence in this case, as in the cases prior, to refute the fact that the cap

discriminates against Taylor and her parents by limiting their general damage

recovery to a single $500,000 payment, while allowing other less severely injured

victims to fully recover their general damage awards. But, the State maintains that

-12- applying the cap to reduce Taylor’s and her parents’ general damage awards not only

serves the State’s purpose in lowering malpractice insurance costs for healthcare

providers; but, it thereby furthers the State’s legitimate objective in assuring

accessible and affordable healthcare for its citizens generally. The State also argues,

just as it did in Butler v. Flint Goodrich Hosp., 607 So. 2d 517 (La. 1992), that the

Act’s $500,000 limitation provides three benefits to the severely injured medical

malpractice victim which serves as a quid pro quo–a reasonable alternative

remedy–to offset the Act’s discriminatory impact on the general damage claims of

these victims and their families. The State recites in brief that it presented expert

testimony by Mr. Bickerstaff, a consulting actuary, showing–just as the Supreme

Court found in Butler–the cap benefits this group in three ways: (1) A greater

likelihood exists that the offending physician or other healthcare provider will have

malpractice insurance; (2) it fulfills the State’s legitimate objective of assuring that

this group’s future medicals will be satisfied; and (3) it assures their claims will be

paid from a solvent Patient Compensation Fund. In sum, the State argues, “the very

quid pro quo that was determinative of the constitutionality of the cap in 1992 [when

the Supreme Court decided the equal protection claim raised by this group in Butler]

continues to exist today.” We therefore are obliged, the State urges, to follow the

Butler holding. We do not believe that holding precludes us from revisiting the equal

protection issue plaintiffs’ advance based on present day realities and the evidence

actually presented in this case.

The Supreme Court’s holding, nearly eighteen years ago in Butler, was based

on evidence presented in that case at a time long past. We noted in Arrington, the

Wisconsin Supreme Court in Ferdon v. Wisconsin Patients Compensation Fund, 2005

WI 125, 284 Wis. 2d 573, 701 N.W. 2d 440, 448 (2005) (emphasis added)

-13- recognized:

[A] statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crises does not forever render a law valid. Over a period of time social, political, and economic changes may render a statute obsolete. . . . Where changed conditions have rendered a statue unconstitutional, the basis for its abrogation by court action is clear. It is well settled that the continued existence of facts upon which the constitutionality of legislation depends remains at all times open to judicial inquiry.

Prior to and since Ferdon, many courts in states across this country–including

Alabama, New Hampshire, Texas, Georgia, Illinois, North Dakota, and Florida–have

not felt so constrained to follow precedence and have refused enforcement of medical

malpractice caps based on state constitutional guarantees.

We note further, most states’ Medical Malpractice Acts distinguish between

economic and non-economic damages; and these states’ caps limit only non-economic

damages. Generally, non-economic damages include pain and suffering, physical

impairment, inconvenience, anguish and disfigurement. These damages are more

difficult to determine and have often been criticized because juries are left to assign

values without much constraints, which in some states have resulted in “run-away

awards” and million dollar judgments for minor injuries. Economic damages include

lost wages, past medical expenses and future medical expenses. These damages are

easier to determine and are subject to mathematical calculation. Louisiana’s Medical

Malpractice Act does not differentiate between economic and non-economic

damages. The $500,000 cap, when originally enacted in 1975, applied to the “total

amount recoverable,” including economic and non-economic damages. The cap was

amended in1984 to exclude the cost of “future medical care and related benefits” and

these costs are no longer limited but are subject to administrative approval and

reviews. There are only four other states with all inclusive caps like Louisiana: New

-14- Mexico, Indiana, Nebraska, and Virginia. Indiana, whose medical malpractice act

was used as a model by the drafters of Louisiana’s MMA, currently provides

$1,250,000 in recoverable general damages. See Ind. Code Ann. 34-18-14-3(a)(3).

Louisiana’s all inclusive cap remains the lowest in the nation. See Allison B. Lewis,

Unreasonable and Imperfect: Constitutionality of the Louisiana Medical Malpractice

Act’s Limit on Recovery, 69 La. L.Rev. 417, 439.

Plaintiffs contend, during the Sibley II hearing in this case, “the State did not

meet its burden of proof in showing the MMA cap on damages [does] not arbitrarily,

capriciously or unreasonably discriminate nor did the State demonstrate that the

legislative classification substantially [furthers] a legitimate state objective.”

Plaintiffs point out there are several empirical studies showing the cap in Louisiana

and caps generally across this country have not had their intended effect; and,

Louisiana’s cap is not furthering a legitimate state objective sufficient to infringe

upon Taylor’s and her parents’ constitutional right to recovery in parity with those

malpractice victims who suffer less harm. Plaintiffs also urge the “quid pro quo” or

alternative remedy theory used by the Butler court to balance the unequal general

damage recoveries for these victims against those less injured is no longer viable for

several reasons.

The State relies on the expert testimony it adduced from two witnesses during

the Sibley II hearing and argues the evidence establishes the cap still serves a

legitimate state interest and “the very quid pro quo that was determinative of the

constitutionality of the cap in 1992 continues to exist today.” Mr. Bickerstaff

testified that the capital structure of an insurance company includes its assets and

liabilities. Under the liability column are “reserves (consisting of unpaid losses and

loss expense amounts); unearned premiums; and miscellaneous expenses.” He

-15- pointed out the reserves “take up by far the greatest portion” of the insurer’s liabilities

but these losses are not certain and “can range all over the place.” The State notes he

testified “that the biggest factor in how wide the range of estimates will be is the

policy limit, i.e., the maximum liability of the insurance company under the policy,

with a lower policy limit resulting in less variability and therefore less uncertainty in

the estimate of the unpaid losses.” Thus, in his expert opinion, caps enable insurance

companies to more accurately estimate reserves, more precisely charge premiums, and

remain solvent to pay losses. In addition to reserves, insurance companies keep

“surplus funds” in the event reserves are insufficient to cover its liabilities due to

underestimation of losses. Mr. Bickerstaff “explained in the mid to late 1990's the

National Association of Insurance Commissioners adopted standardized formulas,

called risk-based capital, for determining the minimum surplus a particular insurance

company should maintain based on its level of exposure writing various lines of

insurance.” He also testified because medical malpractice insurance is one of the

riskiest lines of insurance, the formula requires significantly more surplus than other

insurers offering different lines of coverage are required to withhold. Again, in this

expert’s opinion, caps enable insurance companies to keep less surplus, to lower

premiums, or to increase the insurance company’s dividends.

Mr. Bickerstaff also created a model which predicts how much typical medical

malpractice insurance premiums would rise if the cap was raised to two million

dollars or abolished entirely. The State recites that Mr. Bickerstaff’s model was

based on information provided by the Louisiana Patient Compensation Fund and

LAMMICO Insurance Company. The State acknowledges that the LAMMICO data

relied upon by Mr. Bickerstaff is not in the record of this proceeding; and, we have

been unable to locate any data in the record from the Louisiana Patient Compensation

-16- Fund supporting Mr. Bickerstaff’s estimations or otherwise used by him in creating

the model. In constructing the model, Mr. Bickerstaff assumed that the Louisiana

Patient’s Compensation Fund would cover all future medical expenses and damage

awards between $100,000 and $500,000 as provided by the current cap. If the cap

were raised to two million dollars, Mr. Bickerstaff estimated for the excess coverage

the average healthcare provider’s premium would increase from $10,272.00 to

$28,369.00. If the cap was raised to thirty million dollars the average provider’s

premium would escalate to $40,761.00. The premium increases were predictably

higher for neurosurgeons and OBGYN–the higher risk specialties.

Mr. Bickerstaff’s model also estimates that 182 claims would exceed the cap

leaving the healthcare providers liable for the excess. We are unable to determine

from the record or the model created by Mr. Bickerstaff how he arrived at this

number, what period it covers–years or decades--and no attempt was made by him to

estimate the number of claims which might be filed by severely or catastrophically

injured victims during the same period. The PCF, though an intervenor and present

at the Sibley hearing, did not introduce any data or other information documenting the

number of severely injured victims filing claims since enactment of the MMA and the

medical costs associated with the care of these patients, which has been paid by the

Fund since the adoption of the Act or any other definable period of time. The record

is devoid of any evidence showing the number of victims who died shortly after their

injuries versus those who survived for years.

The State also elicited testimony from Dr. Bauer, an expert Medical Economist.

The State asserts that Dr. Bauer’s testimony exposes the “fallacy” of Plaintiff’s

argument which asserts that any increase in medical malpractice insurance premiums

can easily be passed on by doctors to the consumer. It claims Dr. Bauer’s testimony

-17- could not be clearer that doctors do not have the option to pass on these increased

costs. The real “fallacy” of reasoning, however, is demonstrated in examining Dr.

Bauer’s expert testimony, and the basis, or rather lack thereof, for his conclusions.

Dr. Bauer bases his expert opinion on a comparison of the increase in medical

costs from 1975 to 2006 and the increase in “non-medical” costs. From what we are

able to surmise from the record, non-medical costs is a very broad category and Dr.

Bauer does not aid us in evaluating the strength of his testimony by disclosing what

“non-medical” costs he is using as a comparison i.e, whether it includes increases in

the price of airline tickets, vegetables at the local superette, or tea from China.

Experience teaches us that statistics are notoriously prone to manipulation when

based on ill-defined categories. Dr. Bauer eventually concludes that a medical

malpractice plaintiff was better off economically when recovering damages under the

cap in 2006 than in 1975 because, he says, he determined the cost of medical care

increased 1.97 times faster than “non-medical” costs. This number, however, is

meaningless to us without knowing what “non-medical” costs Dr. Bauer used as a

comparison. Even if we were to assume this number is correct, it does not lead us to

the conclusion suggested by the State. As the State points out, Dr. Bauer also claims,

using his comparison to “non-medical” costs, the differential between 1992 and 2006

was only 1.25, with medical costs increasing at the faster rate. But faster than what?

Dr. Bauer relies on national averages for physicians and surgeons incomes

based on peer-reviewed articles. No mention is made of the figures for physicians

and surgeons in Louisiana; yet, based on national average information, Dr. Bauer

posits that Louisiana doctors simply could not afford an estimated $34,000.00

increase in premiums if the cap was entirely eliminated and asserts that they just

cannot pass this cost on to consumers. Dr. Bauer testified physicians incomes,

-18- presumably nationally, have not increased, but one cannot help but wonder what part

did physicians’ incomes play in the 1.97 and 1.25 increase in medical costs over the

years since 1976. Averaged information based on national data is not very helpful

in determining the questions before us and assessing the impact, if any, an increase

in the cap might have on Louisiana’s healthcare system. Dr. Bauer’s conclusions are

premised on disconnected leaps in reasoning based on ill-defined data and

generalized information. His conclusions are unpersuasive and of little use in

determining whether a plaintiff in Louisiana, compensated under the medical

malpractice cap, is indeed better off in 2006 than in 1975. Likewise, his conclusions

are also unpersuasive and of no use in determining whether doctors could in fact pass

along an increase in the cost of medical malpractice insurance premiums, particularly

considering they have through the years passed on other increases in overhead

perhaps some of which account for the 1.97 and/or 1.25 increase in medical costs

when compared to whatever “non-medical” costs Dr. Bauer employed in his analysis.

None of the State’s experts took the time to project the premium increase an

average healthcare provider would pay if the current cap was maintained, but severely

or catastrophically injured victims and their qualifying family members also were

allowed to recover economic losses up to a fixed amount–for example, up to one

million dollars. In Arrington we attempted to encourage the PCF, because of its

unique position and statutory duty to “collect, accumulate, and maintain claims

experience data from enrolled healthcare providers and insurance companies,” to

provide us with sufficient documentation in the future to aid us in intelligently

reviewing the record and determining whether the current cap, as applied to limit the

general damage claims of severely or catastrophically injured victims, continues to

serve a legitimate state interest without trampling on these victims’ constitutional

-19- right to parity recovery and protection from discrimination.

Nevertheless, there are available published studies which cause us to question

the conclusions made by the State’s experts. For years the U.S. General Accounting

Office, a non-partisan federal government arm of Congress, has gathered data from

sources across this country to evaluate and investigate the underlying factors which

contribute to increases in malpractice insurance premiums. One study prepared by

it in 2003 concludes that a number of factors affect whether medical malpractice

premiums increase or decrease, and there is no definitive correlation between caps on

non-economic damages and lower medical malpractice premiums. U.S. General

Accounting Office, Medical Malpractice Insurance: Multiple Factors Have

Contributed to Increased Premium Rates, GAO-03-702 (June2003). See also, Health

Insurance Association of America, Issue Brief: Why Do Health Insurance Premiums

Rise (Sept. 2002) (indicating that rising consumer health insurance premiums are due

to increases in the overall cost of health care and that “claims and consumer services”

account for only 0.12 cents of every dollar spent on healthcare.) In one report, the

General Accounting Office found differences in premiums and claims payments are

affected by other factors–not just caps–such as state premium rate regulations,

competition among insurers, interest rates and income returns on investments by

insurers. In the end, the General Accounting Office could not determine whether

differences among states in premium charged by insurers were attributable to the

presence or absence of damage caps or to other factors. U.S. General Accounting

Office, 03-836, Medical Malpractice: Implications of Rising Premiums on Access

to Health Care 30 (Aug. 29, 2003). For example, the Office notes Minnesota, which

has no caps on damages, has comparatively low growth in premium rates and claims

payments. Id. at 37. Further, this Court noted in Arrington, “[t]he U.S. Department

-20- of Health and Human Services found most victims of malpractice do not file a claim.

In fact, only 1.53% of those who are injured even file a claim.” Arrington, 940 So.2d

at 793. Like in Arrington, there is nothing in this record to suggest that Louisiana

malpractice victims are more litigious than the national average or that Louisiana had

a prior history of “run-away” jury awards in malpractice cases.

Plaintiffs also presented expert testimony contradicting the findings and

conclusions of the State’s experts. Dr. Michael Kurth (an economist) testified, based

on studies conducted by the U.S. General Accounting Office, that medical

malpractice premiums account for only 1% of healthcare cost in the United States.

He noted the Congressional Budget Office also found that non-economic caps do not

appear to impact a doctor’s decision to practice medicine in a particular state. He

further points out there are no studies or economic data to show: (1) That the cap has

improved healthcare in this State; (2) that it has resulted in an increased number of

healthcare providers in this State; or (3) that it has improved the quality or cost of

healthcare in this State vis a vis other states. He was not aware of any data, economic

rationale, or crisis eliminated by the continued expansion of the MMA to limit the

liability of a host of other healthcare providers since its enactment, including more

recently, nurse practitioners. The State straightforwardly admits in brief that the

legislature, in limiting the liability of nurse practitioners, did not have available any

data suggesting a crisis in healthcare would occur if the cap was not so extended. The

State simply excuses this failure by saying “unless and until there is a claim against

[a] nurse practitioner in excess of the cap,” this data is unavailable–but “at that point

in time will demonstrate the existence of a crisis for nurse practitioners.” The State

also presented no evidence to show there is a shortage of physicians in this state and

a correlating need for nurse practitioners to operate and own “walk-in” clinics to

-21- make health care more affordable or available to Louisiana citizens. Mr. Bickerstaff

indicated there was statistical data available for nurse practitioners, but he chose, or

was not asked, to provide it at the hearing. The following exchange occurred between

Mr. Bickerstaff and plaintiffs’ counsel:

Q. My point is, if you wanted to concern yourself you could have and you’re capable as an actuary of getting data to each specialty, whether it’s a podiatrist, a chiropractor, or a nurse practitioner, but the data is out there in actuarial science to figure out as it applies to those, correct?

A. Let me answer it this way.

Q. Could you answer it first whether the data is there and then you could explain it.

A. The data by specialty is available.

Q. Okay.

A. It’s available on a statewide basis, it’s available on a countrywide basis, it’s data that we refer to routinely when we’re looking at individual state’s rate filings.

...

Q. Do you have any proof that in 1975 that there was going to be a flight of nurse practitioners, if they weren’t covered under this act?

A. Again, I don’t have any specific knowledge of nurse practitioners’ plight at the time anymore than I do most any other specialty.

Q. Do you have any proof on the other side, that this act has improved and allowed there to be more nurse practitioners, or the state is attracting nurse practitioners here who would have gone to other states? Do you have any data for that?

A. I don’t myself. I think there is data available for that, though.

A review of jurisprudence across the country shows, when courts have

considered similar malpractice caps in response to state constitutional challenges by

severely or catastrophically injured victims, they have been troubled by the disparate

impact caps have on this group. As noted, victims with minor injuries or whose

claims do not exceed the cap are allowed to recover fully all their economic and non-

-22- economic damages; while those who are harmed the most recover minimal damages

in comparison. The saddest incidences, perhaps, involve the youngest victims of

malpractice who, like Taylor, will in all likelihood reach old age and remain wards

of their parents or other family members in excess of 60 plus years. Taylor’s injuries

occurred when she was an infant. The cap on the jury’s award also leaves Taylor’s

parents with no possibility of recovering any damages for the harm caused them.

There lives are forever disrupted without any recompense from the tortfeasor.

In Moore v. Mobile Infirmity Assoc., 592 So.2d 156 (Al. 1991), the Alabama

Supreme Court invalidated a $400,000.00 cap on non-economic damages based on

its finding that the link between damages caps and health care costs was remote. The

Moore court found the State failed to show a reasonable means/end fit between caps

and the asserted purpose of alleviating the effects of the alleged malpractice crisis.

That court, in reviewing available empirical data, held there was insufficient evidence

that the enactment of medical malpractice damages caps leads to a decrease in

insurance premiums or an improvement in the availability of health care services.

The Moore court was particularly concerned by the legislative attempt to balance the

“direct and palpable burden placed upon catastrophically injured victims of medical

malpractice against the indirect and speculative benefit that may be conferred on

society . . .” Id. at 170.

In Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991), the New Hampshire

Supreme Court invalidated on equal protection grounds an $875,000 non-economic

damages cap. That court held when a statute creates a classification interfering with

the right to recover for personal injuries, the classification may not be unreasonable

or arbitrary, and must have a “fair and substantial relation to the object of the

legislation.” Id. at 1234 (quoting Carson v. Maurer, 424 A.2d 825, 831 (N.H. 1980)

-23- where the same court found a $250,000 cap unconstitutional). The New Hampshire

Supreme Court in Carson, 424 A.2d 825, 837, recognized, while medical malpractice

caps serve an important societal goal, it is still “unfair” to force a class of the most

severely injured patients to support the entire medical industry through a reduction

in damage awards.

We also find particularly interesting the series of events which have occurred

in Wisconsin. In 1975, the Wisconsin legislature created the Wisconsin Patient

Compensation Fund in order to stabilize the insurance market by providing a layer

of coverage beyond that obtained from private insurers. Subsequently, in 1986, the

Wisconsin legislature adopted a cap of $1,000,000 in non-economic damages that

limited the Wisconsin PCF’s liability. That cap expired in 1991. In 1995, the

Wisconsin legislature adopted a cap of $350,000 (adjusted for inflation) on non-

economic damages in medical malpractice cases.

In Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284

Wis.2d 573, 701 N.W.2d 440, 446 (2005), Matthew Ferdon, who was injured at birth,

causing his right arm to be partially paralyzed and deformed, brought a medical

malpractice claim against the doctor and hospital. Mr. Ferdon was awarded by a jury

$700,000 in non-economic damages. The trial court reduced this award to the

statutory limit of $410,322 (the $350,000 cap adjusted for inflation). Mr. Ferdon

appealed, and the Wisconsin Court of Appeals affirmed. The Wisconsin Supreme

Court reversed, declaring the cap unconstitutional under the equal protection clause

of the Wisconsin Constitution. The opinion identified five legislative objectives of

the statutory cap, and concluded the cap was not rationally related to achieving any

of those objectives. First, the court explored “whether a rational relationship exists

between the legislative objective of compensating victims fairly and the classification

-24- of medical malpractice victims into two groups – those who suffer noneconomic

damages under $350,000 and those who suffer noneconomic damages over

$350,000.” Id. at 97. The court emphasized that, as structured, “the burden of the

cap falls entirely on the most seriously injured victims of medical malpractice,” and

accordingly, “no rational basis exists for treating the most seriously injured patients

of medical malpractice less favorably than those less seriously injured.” Id. at 98,

102.

Next, the Ferdon court examined whether there was a rational relationship

between the cap and “[p]roviding reasonably priced medical malpractice insurance

for health care providers.” Id. at 106. Relying on several published studies, the court

concluded that “medical malpractice insurance premiums are not affected by caps on

noneconomic damages.” Id. at 123.

Third, the court discussed whether the cap on non-economic damages was

rationally related to the legislative function of keeping the Wisconsin PCF operating

on a sound financial basis. Finding the PCF “flourished both with and without a

cap,” the court found “the rational basis standard requires more to justify the

$350,000 cap as rationally related to the [PCF’s] fiscal condition.” Id. at 158.

Fourth, the court explored whether the cap was rationally related to the

legislative objective of lowering overall health care costs. The court pointed out that

“even assuming that a $350,000 cap affects medical malpractice insurance premiums

and the [PCF’s] assessments on health care providers, medical malpractice are an

exceedingly small portion of overall health care costs.” Id. at 162 (emphasis added).

The court concluded such a reduction, if it in fact existed, “would have no effect on

a consumer’s health care costs.” Id. at 165.

Finally, the court in Ferdon examined the issue of physician flight. The court

-25- discussed studies which indicated “that caps on noneconomic damages do not affect

doctors’ migration,” and thus, the cap was not “rationally related to the objective of

ensuring quality health care by creating an environment that health care providers are

likely to move into, or less likely to move out of, in Wisconsin.” Id. at 168, 171.

Not surprisingly, there was legislative reaction to Ferdon, and in 2005, the

Wisconsin legislature passed a bill adopting a cap of $550,000 on non-economic

damages for victims under eighteen years of age and $450,000 for adults. However,

this bill was vetoed by the Governor of Wisconsin. Subsequently, the legislature

passed a $750,000 cap on non-economic damages, and that bill was signed into law.

The interests which the State in this case insists are served by Louisiana’s cap

are the same ones many of the courts and the U.S. General Accounting Office have

found lack scientific basis to correlate with actual healthcare costs and malpractice

insurance premiums.

However, the State suggests somehow that Louisiana’s equal protection and

anti-discrimination guarantees in the Constitution offer no relief to these plaintiffs

because, as found in Butler, the MMA provides these victims with offsetting benefits

to the Act’s $500,000 limitation. The State argues any discrimination against those

with excessive injuries is accompanied by a quid pro quo: A reasonable alternative

remedy. See Bazley v.Tortorich, 397 So.2d 475 (La.1981). Since the legislature’s

statutory solution to the medical malpractice problem also furthers the state purpose

of compensating victims, the State urges, the cap is not constitutionally infirm.

Plaintiffs maintain that this purpose is not being furthered by a cap which has existed

for well over 34 years without any adjustment for inflation. They point to the

declining purchasing power of the dollar during this period and inflation which has

reduced the cap to one quarter of its value in 1975. Dr. Kurth testified that the

-26- purchasing power of the $500,000 cap has dwindled to only $125,000 from the date

of its enactment to the present. On the other hand, the State relies on Dr. Bauer’s

testimony and attempts to convince us that “because of the increasing dollar cost of

medical goods vis a vis non-medical goods and services, and because of the

increasing benefits obtained from medical care from 1975 and 1992 to the present,

a severely injured victim of malpractice is actually economically and physically better

off recovering medical malpractice damages now than in 1975 and 1992.” As we

have already noted, Dr. Bauer’s conclusions are not supported by any data introduced

as evidence in this record, leaving us to rely on common sense and our own

experiences. We find it difficult to accept that young Taylor and her parents are

better off today than they would have been if her injuries had occurred in 1974; and

we are certain if Taylor and her parents could travel back in time, they would gladly

refuse the increasing medical benefits the State alludes to in return for competent

medical care when Taylor was first examined. The medical profession will profit for

many years to come from the medical costs generated by Ms. Duhon’s malpractice.

The State believes it praiseworthy that Taylor’s medical care costs will be paid.

Taylor did not cause her injuries, a medical practitioner did, and yet, it is the medical

profession which will continue to profit from this medical malpractice while the

meager sum recoverable under the cap would steadily dwindle in value. It would be

praiseworthy if the medical profession, like other professions, provided Taylor’s

future medical care pro bono instead of at an escalating profit.

The State also claims the cap provides an alternative remedy to the severely

injured victim by assuring that healthcare providers will have malpractice insurance

and these victims will recover damages and medicals from a solvent fund. As noted

by Dr. Kurth and the U. S. General Accounting Office, there are no definitive studies

-27- or evidence supporting the State’s conclusion that malpractice caps translates into

lower premium cost for the average health care provider. Further, the PCF introduced

no data in this record to show that providing more equitable relief to the severely

injured victim would compromise the stability of the fund and health care generally

in this State.

The state also interposes a procedural objection to plaintiffs’ constitutional

challenge. The state argues, as it did below, that plaintiffs failed to specifically plead

that R.S. 40:1299.41 was “overly broad” in including and limiting the liability of

nurse practitioners. This failure, the State insists, bars plaintiffs from challenging the

cap’s constitutionality based on its application in cases involving claims lodged

against nurse practitioners owning and operating clinics in this State. Despite not

being convinced of the State’s arguments on the constitutionality issue, the trial court

accepted a belated “specificity” attack and concluded the petition was barred for

“procedural insufficiency.”

We do not agree that Plaintiffs petition was procedurally insufficient. Plaintiffs

in their Petition for Declaratory Judgment attacked the entire Malpractice Act,

specifically requesting that the court “declare the limitation on recovery imposed by

the Louisiana Medical Malpractice Act, La. R.S. 40:1299.42(B) to be

unconstitutional.” They also alleged the “unconstitutionality of La.R.S. 40:1299.41,

et seq.” As we noted in Arrington v. Galen-Med, Inc., 04-1235 (La.App. 3 Cir.

7/6/07), 970 So.2d 540, 541-42 (emphasis added), the Louisiana Supreme Court has

said:

[O]ur Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute.” [Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/20/94), 646 So.2d] at 864. The requirement that the unconstitutionality of a statute must be specially pled and the grounds for the claim particularized is a jurisprudential one designed to prompt a “contradictory hearing, wherein

-28- all parties will be afforded the opportunity to brief and argue the issue.” Arrington, 947 So.2d at 726 (quoting Vallo, 646 So.2d at 865). The ultimate purpose of this rule, as explained by the supreme court, is that “[t]he record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality.” Id.

Plaintiffs did not attack the Act’s constitutionality by alleging it was overly

broad by including nurse practitioners. A constitutionality attack for “over- breadth”

seeks to “demonstrate from the text of the challenged statute and from actual fact that

a substantial number of instances exist in which the statute cannot be applied

constitutionally.” See St. Mary Anesthesia Associates, Inc. v. Hospital Service Dist.

No. 2 of Parish of St. Mary, 01-2852 (La.App. 1 Cir. 12/20/02), 836 So.2d 379, 384,

writ denied, 03-220 (La. 3/28/03), 840 So.2d 577. The constitutional doctrine of

“substantial over-breadth,” is generally applied only in First Amendment cases, and

requires a showing of a realistic danger that the statute will compromise recognized

First Amendment protections. Over-breadth is not applicable in the instant case.

Here, Plaintiffs clearly alleged “equal protection” as grounds for finding the MMA

in its entirety unconstitutional as applied to severely injured patients. The trial court

was not prevented from reviewing the Act to determine if all or part of it was

constitutional.

The MMA has a severabilty clause in order to maintain the constitutionality of

the Act in part, even if certain provisions are found not to meet constitutional muster.

That precisely was what the trial court declared in its original ruling. It severed nurse

practitioners as a covered group from the MMA, as is statutorily allowed, in order

to maintain the constitutionality of the remainder of the Act. The pleading

requirements do not mandate that Plaintiffs cite every provision of the MMA in

attacking its constitutionality. It is the courts’ responsibility in reviewing the MMA

-29- to uphold all portions of the act wherever possible, except the portions that violate the

constitution. The test for determining the severability of a statute’s provisions is

whether an unconstitutional provision in a statute is so interrelated and connected

with the constitutional provisions that these provisions cannot be separated without

destroying the intention manifested by the Legislature in passing the act. Cobb v.

Louisiana Bd. of Insts., 237 La. 315, 327, 111 So.2d 126, 130 (1958). In this case,

severing nurse practitioners as a group covered by the cap will not destroy the

protection afforded the principal group, namely doctors, that the legislature was

attempting to protect at the time of the Act’s adoption.

Still, the State argues, when the MMA was enacted the legislature intended to

include within its protection nurse practitioners because registered nurses were

included from the inception of the Act. We are not at all convinced that the

legislature, in including registered nurses in the MMA from inception in 1975, ever

intended to include nurse practitioners as qualified healthcare providers. The State

argues since nurse practitioners are registered nurses, and registered nurses have

always been listed as qualified health care providers, then it follows the legislature

always intended to apply the cap to nurse practitioners. Although it is true nurse

practitioners must be registered nurses, the statutes clearly indicate their job

responsibilities are significantly different. La.R.S. 37:913(13) specifically provides

that “[t]he practice of nursing or registered nursing shall not be deemed to include

acts of medical diagnosis or medical prescriptions of therapeutic or corrective

nature.” (Emphasis added.) However, that statute was amended in 1996 and now

provides that “[a]dvanced practice registered nursing may include certain acts of

medical diagnosis, in accordance with R.S. 37:913(8) and (9), or medical

prescriptions of therapeutic or corrective nature. . .” Registered nurses are not

-30- permitted to render medical diagnosis and prescribe medications.

CONCLUSION

In Arrington, this Court instructed the State that it must do more than simply

rely on prior jurisprudence upholding the constitutionality of the MMA’s cap. It must

present readily available evidence to show the cap continues to serve a legitimate

public purpose and that a reasonable basis still exists for maintaining the

discriminatory classification affecting a plaintiff’s right to full recovery in medical

malpractice cases. This burden, as was clearly set forth in Sibley, rests with the State.

The State simply did not meet its burden of establishing that the cap on

damages, as it applies to nurse practitioners, is rationally related to any of the

enunciated objectives set forth by the legislature when creating the cap. For the

reasons set forth, we conclude the cap, to the extent it includes nurse practitioners

within its ambit, violates the equal protection guarantees of the Louisiana

Constitution. Benefit to the public may be a rational basis for a discriminatory

classification, but the more speculative and remote the benefit, the more arbitrary is

the discrimination. In this case, any correlation between the protection of nurse

practitioners by including them under the purview of the cap and any corresponding

benefits to the health care system has not been established. The State has not set

forth any legitimate basis, under whatever level of scrutiny the constitutional issue

before us is examined, for discriminating against severely and catastrophically injured

victims by forcing them to shoulder the economic burden for yet another group of

healthcare providers who cause them harm. Ms. Duhon owned and operated a clinic

and provided medical care to the unsuspecting public without consulting with a

physician and without the years of formal study required to become one; yet she held

herself out as fully capable of caring for Taylor who appeared ill and in pain 32 times

-31- at her clinic–not once did she pause to question her skills or seek advice from a

physician. Her decision not to do so has caused severe harm to Taylor. She now

complains a judgment against her in excess of the cap will “put her out of business.”

The Louisiana Association of Nurse Practitioners have also filed an Amicus brief in

her defense, specifically noting “the scope of practice for Nurse Practitioners

continues to expand and develop nationally and under Louisiana law.” The brief

recites “when NP care is compared with that of other providers such as physicians,

NP patients are more satisfied with their care and say that, in addition to providing

excellent healthcare, their NP excels in giving health advice” Ms. Duhon did not

attend any institution of higher learning; and, her gross negligence and incompetence

has caused Taylor severe harm and burdened her parents for the duration of their

lives. The cap, if enforced in this case, will reward her wilful failure to follow the

professional rule of her own sub-specialty which requires that she provide patient

care in consultation with a physician, and she will be free to open her doors and

repeat her failures in caring for another child.4 We do not believe a rational basis

exists in fact to warrant insulating her from full liability for the severe harm she has

caused; and, the State has failed to provide any evidence or otherwise to convince us

that a legitimate state interest is furthered by allowing Nurse Practitioners as a group

to hang their shingles and to operate clinics across this state without direct

supervision by a physician.

This case presents a compelling example of the most pernicious consequence

of capping the liability of malpractice tortfeasors. Taylor is unfortunately a member

4 Many have argued the presence of a cap serves to negate the deterrent effects of tort law. There is little incentive, if any, for healthcare providers to decrease the occurrence of malpractice incidents, because the cap serves to decrease the real value of a provider’s liability, and, as such, provides extensive protection and shields negligent healthcare providers from even their grossly negligent acts. This effectively thwarts one of the key purposes the MMA was designed to achieve, the providing of fair and adequate relief to innocent malpractice victims.

-32- of the two classes which are most discriminated against by a cap on recoverable

damages: the severely injured plaintiff, and one who is also young and will have to

live with her injuries and disabilities for the remainder of her life. Spread out over

the expected lifetime of a young child such as Taylor, the award of $500,000 shrinks

to relative insignificance, and will continue to decrease as inflation erodes the value

of the allowable award. There simply is no rational reason why the most severely

injured malpractice victims should be singled out to pay for special relief for a nurse

practitioner who operated in derogation of her statutorily mandated duties.

The legislature, when it decided in 2009 to expand the MMA’s cap to limit the

liability of Nurse Practitioners, did not articulate any basis for their inclusion and the

state has offered little more as evidence in this record. We will not supply this

evidence for them nor remand this case for another Sibley II hearing. We are satisfied

all the interested parties were fully apprised and aware of the constitutional issues

presented—this is not the first case challenging the continued application of the cap

in cases involving severely or catastrophically injured victims based on equal

protection grounds.

DECREE

For the reasons set forth above, the judgment of the trial court awarding the

Olivers past medical expenses and judicial interest to be paid by the PCF on those

past medical expenses is affirmed. The trial court award of future medical costs to

be paid by the PCF is also affirmed. We deny Susan Duhon’s peremptory exception

of res judicata. Lastly, we conclude the cap, to the extent it includes nurse

practitioners within its ambit, violates the equal protection guarantees of the

Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.5

5 We note that Nurse Practitioners are still covered under the Act to the extent an injured party’s damages do not exceed the cap, but that any excess liability is not covered by the Act.

-33- Therefore, the jury’s award of damages is reinstated. Costs of this appeal are assessed

to Defendants.

AFFIRMED IN PART; REVERSED IN PART; EXCEPTION OF RES JUDICATA DENIED.

-34- STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

VERSES

SAUNDERS, Judge, concurs in the result and assigns written reasons.

In my view, nurse practitioners are not the same as registered nurses, and, thus,

were not covered by the Medical Malpractice Act prior to its amendment in 2009 to

specifically include them. It is clear that while a nurse practitioner can perform all

the activities of a registered nurse, as in order to be a nurse practitioner one must first

be a registered nurse, a registered nurse cannot perform the same activities as a nurse

practitioner. Examples include diagnoses of some maladies and prescriptions of some

medications.

Should one to look at the language of La.R.S. 40: 1299.41, it is clear that who

is covered by the act is listed specifically rather than casting a general umbrella. For

example, prior to the 2009 amendment, La.R.S. 40: 1299.41 listed certified registered

nurse anesthetists and registered nurses separately. Like nurse practitioners, a

certified nurse anesthetist must also be a registered nurse for one year prior to

application for this licensing.

In my view, there is no need to address whether the medical malpractice act is

constitutional, as nurse practitioners were not covered by the act when this

unfortunate incident transpired. The writing judge addresses the constitutionality of

the MMA when addressing nurse practitioners, and reaches the same result of my

view regarding the seminal issue of this case, whether the MMA applies.

Moreover, I note that the MMA could not have contemplated inclusion of nurse practitioners in its language providing coverage to registered nurses when it was

created in 1975. Nurse practitioners were not licensed in Louisiana until legislation

was passed in 1995, effective January 1, 1996. As such, I concur in the result of the

writing judge’s opinion per the written reasons as stated above.

2 CA 09-439

GREMILLION, Judge, dissents and assigns written reasons.

Two appeals of separate judgments form the controversies at issue. Joe and

Helena Oliver, individually and on behalf of their minor child, Taylor, appeal the trial

court’s declaratory judgment in favor of the State of Louisiana declaring the Medical

Malpractice Act’s limitation on recovery (the cap), La.R.S. 40:1299.42(B),

constitutional and the judgment entered in their underlying tort claim. The Louisiana

Patients’ Compensation Fund (PCF) appeals a judgment on the Oliver’s underlying

tort claim. Additionally, defendant/appellant, Susan Duhon, has raised in the appeal

a peremptory exception of res judicata in which she asserts that the Olivers only

appealed the declaratory judgment and not the judgment on the verdict in the

underlying tort claim.

Judges Cooks and Thibodeaux take pains to state that their decision is limited

in its application to nurse practitioners. Judges Saunders and Painter maintain that

nurse practitioners are not covered at all. However, these findings are problematic.

The Olivers never assigned as error the application of the cap to nurse practitioners;

rather, they want this court to declare that the cap itself, by virtue of its diminished

value, is unconstitutional. We are generally precluded from considering issues not

assigned as error. See Uniform Rules-Courts of Appeal Rules 1—3 and 2—12.4.

Additionally, Judges Cooks and Thibodeaux’s reasoning is by no means limited

to the circumstances of nurse practitioners. It could apply to any health care provider. In fact, they specifically take aim at health insurers’ “dividends,” doctors’ “incomes,”

and the alleged “escalating profits” of the entire “medical profession.”

Furthermore, if the cap applies to nurse practitioners, its unconstitutionality

necessarily affects all other qualified health care providers. I believe the cap does

apply to nurse practitioners. The legislature recently enacted Act 14 of the 2009

Regular Session, amending La.R.S. 40:1299.41 effective August 15, 2009, to include

nurse practitioners among those providers specifically listed in the definition of

“health care providers.” The significance of this amendment is that, were nurse

practitioners not already covered by the act, the cap would not apply retroactively to

Duhon.

The field of nursing has long been regulated in Louisiana, as it is in most states.

Nurse practitioners are required to be registered nurses. La.R.S. 37:913. The MMA

has long applied to registered nurses.

The legislative history of the 2009 bill persuades me that the purpose of Act

14 was simply to clarify the MMA. The original author, Representative Willmott,

testified before the House Committee on Civil Law and Procedure that the bill was

intended to clarify the law. In his view, nurse practitioners were already covered by

the MMA, as the law requires that they be registered nurses before becoming nurse

practitioners.1 He spoke in favor of the bill from the House well and stated that its

purpose was clarification.2 Similarly, Senator Heitmeier, who moved for the bill’s

final passage by the Senate, advised that body that the purpose of the bill was to

clarify the law.3 I agree. Accordingly, the MMA applies to nurse practitioners

1 http://house.louisiana.gov/marchive/Ram/RamMay09/0504_09_CLP.ram 2 http://house.louisiana.gov/marchive/Ram/RamMay09/0511_09_Day09_2009RS.ram 3 http://senate.legis.la.us/video/2009/June/060209_schramb_P2.ram

2 notwithstanding the majority’s contrary finding.

Because Judge Cooks bases her ruling on the equal protection issue alone, she

chooses to not address the other grounds upon which the Olivers claim the cap is

unconstitutional. While I would find that the cap withstands all the Olivers’ claims

of unconstitutionality, I will follow Judge Cooks’ lead and address only the equal

protection claim.

EQUAL PROTECTION

Judges Cooks and Thibodeaux find that the cap violates the equal protection

clause of the Louisiana Constitution. I disagree. The cap forms one provision of the

MMA, La.R.S. 40:1299.41, et seq., enacted by Act 817 of 1975. Its amount has not

been increased. Since 1975, according to the economic experts who testified on the

Olivers’ behalf, the value of the cap adjusted for inflation has reduced the purchasing

power of the $500,000 to the 1975 equivalent of $125,000. The Olivers argue that

the effect of inflation on the value of the cap renders it a constitutionally infirm

remedy.

Louisiana Constitution art. I, §2 provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited

Because the MMA represents a legislative classification based upon physical

condition, it is not entitled to the presumption of constitutionality normally afforded

a statute. Sibley v. Bd. of Sup’rs. of La. St. Univ., 477 So.2d 1094 (La.1985). In the

case of classifications based upon birth, age, sex, culture, physical condition or

political ideas or affiliations, the burden of proving them constitutional is shifted to

3 the proponent of the classification. Id. The classification must be proven to

substantially further an important state interest. State v. Fleury, 01-871 (La.

10/16/01), 799 So.2d 468.

The State and Duhon contend that the Louisiana Supreme Court has declared

the cap constitutional, and that ruling is binding on this court.4 See Butler v. Flint

Goodrich Hosp., 607 So.2d 517 (La.1992). Judge Cooks finds that we are not bound

by the ruling of this state’s supreme court, but is persuaded by the supreme courts of

Wisconsin, Alabama, and New Hampshire. She premises her decision to not follow

Butler on the fact that it was decided 18 years ago. The conditions that prevailed

when it was decided still exist today: severely injured patients are ensured that their

doctors will carry medical malpractice insurance; they still have access to a solvent

pool of recovery in the PCF; and, all medical care and related expenses will be paid.

Ironically, two of the three out-of-state opinions relied upon by Judges Cooks and

Thibodeaux are older than Butler.

According to the evidence at trial, while the value of the general damages

element of the cap has diminished in the intervening years, the element of recovery

of future medical care from the PCF has dramatically increased because the costs

associated with health care have risen significantly faster than inflation. My

colleagues have claimed their privilege to discount this evidence, but to say this

evidence does not exist in the record is simply incorrect.

The Butler decision involved a challenge by the patient to the cap based on the

equal protection clause and the adequate remedy component of the due process clause

of the state constitution. The patient did not argue that the amount of the cap

4 Duhon filed a brief adopting by reference the argument of the State in its brief.

4 rendered it unconstitutional, but rather its existence. The court found that the

aforementioned benefits represented a “reasonable but imperfect balance between the

rights of victims and those of health care providers.” Butler, 607 So.2d at 521. This

represented a legitimate state interest. Id. The cap, said our supreme court, did not

violate either the federal or state constitutions. Id.

The “quid pro quo” recognized in Butler still exists. The patient is guaranteed

the three aforementioned benefits: greater likelihood her health care provider will

carry, and be able to carry, malpractice insurance; the availability of additional

recovery from a solvent pool; and, the payment of all medical and related expenses.

Id. These benefits do not depend on the amount of the cap. If, then, the dollar value

of the cap has diminished, that cannot rise to the level of a constitutional infirmity.

Recourse for its adjustment lies in the legislature and not the courts.

An additional and corollary argument in the present matter is the deprivation

of the loss of consortium claims of Joe and Helena Oliver. By operation of the cap,

the Olivers’ claims for loss of consortium are also subject to the cap. They will then

recover none of the $233,000 awarded to them individually.

The cap is no less valid when applied to the Olivers’ claims than it is when

applied to Taylor’s. The same benefits exist: the Olivers will not bear Taylor’s

medical expenses into the future. The trial evidence demonstrates that this benefit

will far outweigh the value of the $233,000 they would receive in general damages.

Accordingly, it is not an arbitrary, capricious, or unreasonable classification.

The cap does, indeed, fall most heavily upon those most seriously injured.

However, the Louisiana Supreme Court has recognized that such a classification of

5 persons by physical condition is suspect, and nevertheless has held that an important

state interest is furthered by the cap. That the cap may now be seen by many as

insufficient does not negate the benefits the cap ensures all patients: greater

likelihood that all health care providers will be insured; a solvent pool from which to

collect; and, the payment of all future medical expenses arising from acts of medical

negligence, a benefit that potentially far exceeds the value of any award of general

damages.

The cap does not violate a patient’s right to access to the courts or to an

adequate remedy. It represents an imperfect but reasonable “quid pro quo” between

qualified health care providers and their patients. There exists no constitutional

guarantee of a tort victim’s recovery of a particular remedy, but merely the guarantee

of a right to pursue a remedy.

The cap, which has gone without adjustment for 34 years, should be adjusted

by the legislature. However, while the amount of the cap is now worth substantially

less than it was in 1975, it is not constitutionally infirm. Still, the legislature should

consider the burden the cap places on its injured citizens and raise it. I also would

respectfully suggest that the legislature index the cap in a responsible manner, which

would obviate cases like the one before us now.

The critical question before this court is not whether problems with the medical

malpractice cap should be addressed. The answer to that questions is clearly, “Yes.”

Rather, the question, I submit, that was wrongly answered by Judges Cooks and

Thibodeaux is who should address the problem. The answer to that question is not

this court, but the legislature.

Therefore, I would affirm the judgment of the trial court declaring the cap

6 constitutional and the jury’s verdict awarding damages.