Joe Oliver v. Magnolia Clinic

• Court: Louisiana Court of Appeal
• Decided: August 31, 2011
• 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. 2005-3709 HONORABLE CLAYTON DAVIS, PRESIDING **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, James T. Genovese, Shannon J. Gremillion and Phyllis M. Keaty, Judges.

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

Saunders, J., concurs in the result and assigns written reasons.

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

Amy, J., dissents and assigns written reasons.

Gremillion, J., dissents for the reasons assigned by Amy, J. and also assigns additional reasons.

Decuir, J., dissents for reasons assigned by Amy, J. And Gremillion, J.

Todd A. Townsley Marcus P. LaCombe The Townsley Law Firm, L.L.P. 3102 Enterprise Blvd. Lake Charles, LA 70601 (337) 478-1400 COUNSEL FOR PLAINTIFFS/APPELLANTS: Joe and Helena Oliver, individually and on behalf of their minor child, Taylor Oliver Richard B. Cappe1 Raggio, Cappel, Chozen & Berniard P.O. Box 820 Lake Charles, LA 70602 (337) 436-9481 COUNSEL FOR DEFENDANTS/APPELLEES: Susan Duhon d/b/a the Magnolia Clinic and St. Paul Marine Ins. Co.

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 Houssaye Jones, Walker, Weechter, Poitevant, Carriere & Denegre, L.L.P. P.O. Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 COUNSEL FOR INTERVENOR/APPELLANT: Louisiana Patient’s Compensation Fund

Guice Anthony Giambrone, III Kelly A. Dugas Blue Williams, L.L.P. 3421 N. Causeway, Suite 900 Metairie, LA 70002 (504) 891-4091 AMICUS CURIAE: Louisiana Association of Nurse Practitioners COOKS, Judge.

This matter is on remand from the Louisiana Supreme Court for en banc

consideration the majority of judges voted with instruction that we render a decree

“reflecting a majority vote on each of the issues presented.” Oliver v. Magnolia

Clinic, 10-2766, 10-2782,10-2785 (La. 3/25/11), 57 So.3d 307. After en banc

consideration, a majority of the judges voted to adopt the original opinion released in

this case with additional reasons as follows.

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 jury’s $6,233,000.00 general damage award in their

favor to the cap of $500,000.00 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 Patient’s Compensation Fund (PCF)

also appeals the judgment and alleges the trial 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 positions of the PCF and Nurse Duhon and find, as the supreme

court similarly held in Sibley v. Board of Supervisors of Louisiana State University,

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

-1- of Taylor’s physical condition when compared to other malpractice victims who

receive full recovery for their injuries. We 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 “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 MMA’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 and the right to an adequate remedy guaranteed in Article I, Section 22

of the Louisiana Constitution. We, therefore, are constitutionally mandated in this

case to refuse enforcement of the cap to insulate these nurse 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.

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

-2- “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

Marine Insurance Company.1 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. Louisiana Revised Statutes

40:1299.41(A)(10) also provides that “hospitals” are qualified healthcare providers

under the MMA. Louisiana Revised Statutes 40:1299.41(A)(11) defines “hospital”

to include any “clinics containing facilities for the examination, diagnosis, treatment

or care of human illnesses.” Thus, under the MMA, the Magnolia Clinic is a qualified

health care provider.

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 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

1 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 $125,000.00 in cash or other security with the PCF. La.R.S. 40:1299.42.

-3- thirty 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.

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 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 percent chance of an event-free survival. However, Taylor’s

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

diagnosed.

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,

-4- 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 awarded Ms. Oliver $200,000.00 for loss of

consortium.

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

La.Const. art. 1, § 22; (2) precludes any remedy for Mr. and Ms. Oliver, again in

violation of La.Const. art. 1, § 22; (3) violates the separation of powers provision of

La.Const. art. 5, § 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 La.Const. art. 3, § 12(7); and

(5) denies equal protection to severely injured patients in violation of La.Const. art.

1, § 3. They prayed that the court declare the cap unconstitutional.

The State of Louisiana and the 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 [MMA] 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

-5- MMA was adopted) for doctors and hospitals, extension of the MMA 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

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 MMA.

The Olivers appealed this judgment, arguing the trial court erred in finding the

MMA’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

-6- as error the trial court’s award of past medical expenses and the award of interest

thereon.2

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

jury’s verdict is final. We disagree.

The judgment limiting Ms. Duhon’s liability to $100,000.00 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 $6,000,000.00 to $100,000.00 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. Ms.

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 $6,000,000.00 to $100,000.00 based on La.R.S. 40:1299.42(B). We also note

the Uniform Rules–Courts of Appeal, Rule 2-12.4 requires that an appellant attach a

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

-7- 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.

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.

-8- (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.

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 La.Code Civ.P. art. 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. 1, § 22; (2) the “separation of powers” provision of La.Const. art. 2, §

2; (3) the provisions of La.Const. art. 3, §§ 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. 5, § 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. 1, § 3.

A. Equal Protection Challenge.

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

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

constitutionality of the MMA 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, 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 $500,000.00 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 it 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. 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 1268-69. 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 $500,000.00 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

-10- 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 Supervisors of Louisiana, 462 So.2d 149

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

(emphasis added) 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 its

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 $500,000.00 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

-11- 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 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 1108-09.

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 791-92.

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

-12- 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 $500,000.00 payment, while allowing other less severely injured victims

to fully recover their general damage awards. The State maintains that 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 Hospital, 607 So.2d 517 (La.1992), that the Act’s $500,000.00

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 MMA’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 PCF. 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.

-13- 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 , 701 N.W. 2d at 448 (emphasis added),

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 MMA

does not differentiate between economic and non-economic damages. The

$500,000.00 cap, when originally enacted in 1975, applied to the “total amount

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

-14- 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 Mexico, Indiana,

Nebraska, and Virginia. Indiana, whose medical malpractice act was used as a model

by the drafters of Louisiana’s MMA, currently provides $1,250,000.00 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.

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

-15- 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 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 $2,000,000.00 or

abolished entirely. The State recites that Mr. Bickerstaff’s model was based on

information provided by the Louisiana Patient Compensation Fund and LAMMICO

-16- 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 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 $100,000.00 and $500,000.00 as provided by the current cap. If the

cap were raised to $2,000,000.00, 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 $30,000,000.00 the average provider’s premium

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

neurosurgeons and obstetricians, and gynecologists, 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 of time 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

PCF since the adoption of the MMA 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.

-17- The State asserts that Dr. Bauer’s testimony exposes the “fallacy” of Plaintiffs’

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

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

-18- 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, 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

$1,000,000.00. 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

-19- 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 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 (GAO), 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 (June 2003). 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

GAO 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

GAO could not determine whether differences among states in premiums 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

-20- GAO notes Minnesota, which has no caps on damages, has comparatively low growth

in premium rates and claims payments. Id. Further, this Court noted in Arrington,

“[t]he U.S. Department 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 GAO, 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

-21- 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 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

-22- 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-

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 or of the state in excess of sixty 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. Their lives are forever disrupted without any recompense from the

tortfeasor.

In Moore v. Mobile Infirmity Association, 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/ends 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 $875,000.00 non-economic

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

-23- 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)

where the same court found a $250,000.00 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 $1,000,000.00 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 $350,000.00 (adjusted for inflation) on non-

economic damages in medical malpractice cases.

In Ferdon, 701 N.W.2d 440, 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 $700,000.00

in non-economic damages. The trial court reduced this award to the statutory limit of

$410,322.00 (the $350,000.00 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.

-24- First, the court explored “whether a rational relationship exists between the legislative

objective of compensating victims fairly and the classification 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 costs 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.

-25- Finally, the court in Ferdon examined the issue of physician flight. The court

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 $550,000.00 on non-economic

damages for victims under eighteen years of age and $450,000.00 for adults.

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

legislature passed a $750,000.00 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 GAO 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 its $500,000.00 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’s 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 thirty-four 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

-26- cap to one quarter of its value in 1975. Dr. Kurth testified that the purchasing power

of the $500,000.00 cap has dwindled to only $125,000.00 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

-27- by Dr. Kurth and the GAO, there are no definitive studies 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.

B. Adequate Remedy

Louisiana Constitution Article 1, § 22 provides:

All courts shall be open, and every person shall have an adequate remdey by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

As noted by Chief Justice Calogero in Everett, 359 So. 2d at 1268, La.Const. art. 1,

§ 22, “like the fourteenth amendment to the United States Constitution, protects

fundamental interest to a greater extent than interests that are not considered of

fundamental constitutional importance.” But a pure dollar for dollar “adequacy test”

is not the proper constitutional calculation to determine whether Taylor’s

constitutional right to an adequate remedy in this case has been violated. As we have

noted, in many instances, other than cases involving malpractice victims, the

Louisiana legislature has acted to limit recovery of damages to all victims within a

class, such as workers’ compensation, and to provide the State’s tort liability shall not

exceed $500,000.00. Additionally, in some cases, “a Plaintiff’s right to recover

damages at all is barred by legislative grants of immunity from suit.” See La. R.S.

9:2795. Constitutional challenges to such enactments have not been successful

because courts have held that the right to recover damages for tort injuries is not

fundamental, and the legislature is only required to articulate a rational basis for

limiting or denying such recovery.

But when the legislature chooses to create a “separate or suspect” classification,

-28- as in this case, based solely on Taylor’s severe disability, and to limit her damages

while allowing other malpractice victims to recover fully, it must do more than “say

its all good for the public welfare.” Like in instances involving equal protection

infringements, it must show such monetary discrimination serves a compelling state

interest. For reasons which we have already articulated above, we find the State has

not satisfied its burden in this particular case. Therefore, enforcement of the MMA’s

cap to limit Taylor’s and her parents’ right to an adequate remedy violates Article 1,

§ 22 of the Louisiana Constitution.

C. Separation of Powers

Plaintiffs argue the MMA’s cap violates the separation of powers doctrine

established in Article 2, § 1, 2, and Article 5, § 16(A)(1) of the Louisiana Constitution.

While courts in other states have found that medical malpractice caps violate

separation of powers guarantees between the branches of government because it strips

the judiciary or juries of the authority to determine the facts and damages, we find it

unnecessary to resolve the issue at this time. Lebron v. Gottlieb Memorial Hospital,

930 N.E.2d 895 (Ill. 2010); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691

S.E.2d 218 (Ga.2010).

We also have considered the State’s reliance on the same doctrine to insist that

this court does not have the authority to declare the MMA’s cap, as applied to Taylor’s

claim, unconstitutional because: (1)the legislature has spoken; and (2) the supreme

court has already declared that the MMA is constitutional. At oral argument, the

State’s counsel could hardly contain his excitement to return to the highest court of

this State should this Court decide to meddle in a matter he openly suggested was

outside our scope of review.

Louisiana Constitution Article 2, § 1 of the provides that the three branches of

-29- state government are the executive, the legislative and the judicial. Louisiana

Constitution Article 2, § 2 provides that neither branches nor anyone holding office

in any of them may exercise power belonging to either of the others. Louisiana

Constitution Article 5, § 16 defines the constitutional role of district courts. The

power to determine the constitutionality of legislative enactments, to administer

justice, and to protect every person’s right to due process of law and an adequate

remedy in an open court is vested in the judiciary which includes the district,

appellate, and supreme courts. La.Const. art. 1., § 22.

We do not share the State’s enthusiasm for the merits of its position. We have

taken the opportunity on remand to re-examine Louisiana’s Constitution and a long

line of jurisprudence addressing separation of powers issues involving our three

branches of government, and we are unable to find any which remotely suggests we

are powerless to act in this instance. It is our duty to act whenever a litigant’s

constitutional right is infringed upon by legislative creation of a “separate or suspect”

classification; and, as in this case, the evidence is insufficient to establish a compelling

State interest giving reason for such interference.

IV. Overly Broad Procedural Objection.

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 La.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

-30- “procedural insufficiency.”

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

Plaintiffs, in their Petition for Declaratory Judgment, attacked the entire MMA,

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, p. 2 (La.App. 3 Cir.

7/6/07), 970 So.2d 540, 541-42, writs denied, 07-1614, 07-1628 (La. 12/7/07), 969

So.2d 630, 631 (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 859,] 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 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 MMA’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 Assocs., Inc. v. Hosp. Servs. Dist. No. 2 of

Parish of St. Mary, 01-2852, p. 6 (La.App. 1 Cir. 12/20/02), 836 So.2d 379, 388, 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

-31- 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 MMA to determine if all or part of it was

constitutional.

The MMA has a severabilty clause in order to maintain constitutionality 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 MMA. 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 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, 111 So.2d 126 (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

MMA’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 MMA. We are not at all convinced that the

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

-32- 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. Louisiana Revised Statutes 37:913(13)

(emphasis added) 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.” 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. . . .” La.R.S. 37:913(3)(b).

Registered nurses are not permitted to render a medical diagnosis or 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

-33- within its ambit, violates the equal protection and adequate remedy 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 thirty-two times 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 and

permanent 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

has 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 [nurse practitioner] care is compared with that

of other providers such as physicians, [nurse practitioner] patients are more satisfied

with their care and say that, in addition to providing excellent healthcare, their [nurse

practitioner] 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

-34- enforced in this case, will reward Ms. Duhon’s 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.3 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

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 $500,000.00 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

3 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, i.e., the providing of fair and adequate relief to innocent malpractice victims.

-35- 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 and other 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 and adequate remedy guarantees of the

Louisiana Constitution and La.R.S. 40:1299.41(A)(1), and, thus, is unconstitutional.4

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.

4 We note that nurse practitioners are still covered under the MMA to the extent an injured party’s damages do not exceed the cap, but that any excess liability is not covered by the MMA.

-36- STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

VERSES

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

I concur in the result for the reasons assigned in Oliver v. Magnolia Clinic, 09-

439 (La.App. 3 Cir. 11/17/10), 51 So.3d 874. NUMBER 09-439

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

AMY, J., dissenting.

I respectfully dissent from the majority opinion, as I find that an affirmation

is warranted.

This case presents the issue of whether the Medical Malpractice Act’s

limitation on recovery pursuant to La.R.S. 40:1299.42(B) is constitutional.

Chiefly, the plaintiffs question whether that cap violates the equal protection

requirements of La.Const. art. 1, § 3 and the requirement of La.Const. art. 1, § 22

that all persons shall have an adequate remedy by due process of law.

Given the factors before this court, I find no violation of these constitutional

requirements. Instead, I conclude that this matter is controlled by Butler v. Flint

Goodrich Hosp. of Dillard Univer., 607 So.2d 517, 518 (La.1992), cert. denied,

508 U.S. 909, 113 S.Ct. 2338 (1993), wherein the supreme court addressed “the

constitutionality of Louisiana’s $500,000 cap on general damages in a medical

malpractice victim’s suit against multiple defendants.” The supreme court

observed that the statutory cap on medical malpractice judgments in excess of

$500,000 distinguishes between injured parties who are fully compensated insofar

as their damages are less than $500,000 and those who have damages exceeding

$500,000. Id. While the former group receives full compensation for their

injuries, the latter group is fully compensated only for their medical expenses and

related benefits. Recognizing the disparate treatment afforded the latter group, the supreme court concluded that those with the most serious injuries received three

benefits from the cap:

(1) greater likelihood that the offending physicians or other health care provider has malpractice insurance; (2) greater assurance of collection from a solvent fund; and (3) payment of all medical care and related benefits.

Id. at 521. It noted that compensation and full medical care are legitimate social

interests furthered by malpractice legislation. Thus, the supreme court concluded

that the $500,000 cap was not constitutionally infirm and, instead, the malpractice

act was found to be “a reasonable but imperfect balance between the rights of

victims and those of health care providers.” Id.

The fact that the malpractice cap does not allow full compensation for

certain malpractice claimants remains unchanged since Butler. To the extent the

plaintiffs assert that any under-compensation necessitated by the application of the

cap has only increased since Butler, I point out that Butler did not focus on the

valuation of the cap’s limitation. The supreme court instead addressed the

constitutional permissibility of a limitation.

Both at the time of Butler and in the present day, some malpractice

claimants with serious injuries recovering under the Medical Malpractice Act have

received or will receive a larger percentage of compensation than others. For

instance, a victim sustaining damages only slightly above $500,000 would receive

proportionally far greater compensation than the victim who sustained damages

greatly in excess of that limit. Even in light of this inevitable result of the

monetary limit, the supreme court found the cap constitutional in Butler. In my

opinion, the supreme court’s determination as to constitutionality remains fully

applicable. I believe that the extent of under-compensation, whether due to

inflation or otherwise, remains a policy question outside the reach of this

2 intermediate court of appeal in light of what I believe to be controlling

jurisprudence from a superior court.

Accordingly, I believe that an affirmation of the trial court’s judgment is

warranted.

3 STATE OF LOUISIANA

GREMILLION, Judge, dissenting.

Because I believe Butler v. Flint Goodrich Hosp., 607 So.2d 517 (La.1992), is

controlling, I subscribe to the dissent of Judge Amy.

In light of Butler, it is perplexing that our courts continue to revisit this issue

at all. This seems perplexing to the supreme court, too, if one considers its recent

pronouncements. Our colleagues on the Fourth Circuit Court of Appeal faced a

challenge to the constitutionality of the three-year prescriptive period in medical

malpractice claims. See La.R.S. 9:5628. In Russo v. Kraus, 10-178-79 (La.App. 4

Cir. 9/29/10), 49 So.3d 941, the plaintiffs asserted a claim against a pathologist for

failure to identify cancerous cells in a biopsy performed eight years before definite

malignancy was diagnosed. The plaintiffs instituted a medical malpractice action

and filed a petition for declaratory judgment holding the prescriptive period

unconstitutional on the basis of equal protection and due process.

The trial court, as did the trial court in the present matter, scheduled a Sibley

hearing. Before the hearing, the defendants filed exceptions of prescription and two

motions for summary judgment. The trial court decided to hold the hearings on the

exception and motions before holding the Sibley hearing. The motions for summary

judgment were granted and the exception of prescription was not heard. The parties

1 then entered into a stipulation that the claim was prescribed under Revised Statute

9:5628, but reserved the plaintiffs’ right to appeal. The trial court then granted the

exception of prescription. Plaintiffs then appealed, arguing, among other things,

that the trial court erred in ruling on the motions and exception without holding the

Sibley hearing.

The fourth circuit reversed the trial court. Despite the supreme court’s

rulings in Crier v. Whitecloud, 469 So.2d 304 (La.1986) that the statute did not

violate equal protection, and in Branch v. Willis-Knighten Medical Center, 92-3086

(La.4/28/94), 636 So.2d 211, overruled on other grounds, David v. Our Lady of the

Lake Hospital, 02-2675 (La. 7/2/03), 849 So.2d 38, which held that the statute

furthered a legitimate state interest, the fourth circuit held that the prescriptive

statute did not further any legitimate state interest and violated equal protection and

due process in denying plaintiffs access to the courts. It remanded the case to the

trial court to determine whether any malpractice insurance crisis existed in 1975 or

at any point at which the statute had been amended.

Writs were granted by the supreme court. Russo v. Kraus, 10-2463 (La.

1/28/11), 52 So.3d 876. The order stated (emphasis added):

Writ granted. In light of the defendants' stipulation to the latency of Janice Russo's disease and this Court's prior findings concerning the existence of a medical malpractice insurance crisis in the 1970s, the Court of Appeal erred in reversing the District Court's judgment and remanding this matter for a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), hearing on these issues. See Crier v. Whitecloud, 496 So.2d 305, 308–09 (La.1986); see also, Branch v. Willis–Knighton Medical Center, 92–3086, pp. 9–10 (La.4/28/94), 636 So.2d 211, 215, overruled on other grounds in David v. Our Lady of the Lake Hospital, 02–2675 (La.07/02/03), 849 So.2d 38. Accordingly, the judgment of the Court of Appeal is hereby reversed, and the judgment of the District Court is hereby reinstated.

Id. I wish to also address the majority’s attempt to limit the scope of its ruling. It

2 takes pains to state that its decision is limited in its application to nurse practitioners.

However, this is problematic for two reasons. First, 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 1C3 and 2C12.4.

Second, the majority=s reasoning is not limited to the circumstances of nurse

practitioners. It could apply to any health care provider. In fact, it specifically

takes aim at health insurers= Adividends,@ doctors= Aincomes,@ and the alleged

Aescalating profit@ of the entire Amedical 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. Coverage of nurse practitioners by the MMA, and

more specifically their status as qualified health care providers, was raised again in

oral argument. It was noted that 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 Ahealth 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 cap, which has gone without adjustment for 34 years, should be adjusted

by the legislature. That the amount of the cap is now worth substantially less than it

was in 1975 does not render it 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

3 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, AYes.@ Rather, the question, wrongly answered by the majority, 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

constitutional and the jury=s verdict awarding damages.