Susan Arrington, Etc. v. Er Physician Group, Inc.

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-995 consolidated with 12-996

SUSAN ARRINGTON, ETC.

VERSUS

ER PHYSICIAN GROUP, INC., ET AL.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 1997-4329 C/W 1999-191 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED. MOTION FOR EN BANC HEARING DENIED.

Thibodeaux, Chief Judge, specially concurs.

Stephen M. Pizzo 3421 N. Causeway Boulevard, Suite 900 Metairie, LA 70002 (504) 831-4091 COUNSEL FOR DEFENDANT/APPELLEE: Galen-Med, Inc.

J. Elliott Baker Special Assistant Attorney General 321 N. Vermont Street, Suite 208 Covington, LA 70433 (985) 867-9068 COUNSEL FOR DEFENDANTS/APPELLEES: State of Louisiana Galen-Med, Inc. Nadia de la Houssaye Jones, Walker, Waechter, Poitevent, Carrѐre & Denѐgre, L.L.P. Post Office Drawer 3408 Lafayette, LA 70502-3408 (337) 593-7600 COUNSEL FOR INTERVENOR/APPELLEE: Louisiana Patient’s Compensation Fund

Oliver Jackson Schrumpf Schrumpf & Schrumpf 3801 Maplewood Drive Sulphur, LA 70663 (337) 625-9077 COUNSEL FOR PLAINTIFFS/APPELLANTS: Susan Arrington Laura Jo Arrington Joelle Lorene Arrington Sharon Taylor Charles Taylor, Jr. AMY, Judge.

The plaintiffs in these consolidated cases question whether the trial court

correctly resolved their claims regarding the constitutionality of La.R.S.

40:1299.42(B) upon remand by the Louisiana Supreme Court. See Arrington v.

Galen-Med, Inc., 12-0908 (La. 5/22/12), 89 So.3d 1159. For the following reasons,

we affirm. We further deny the plaintiffs’ motion for en banc consideration of the

appeals.

Factual and Procedural Background

These medical malpractice matters have a lengthy procedural history and have

previously been considered by this court as well as the Louisiana Supreme Court for

consideration of various issues. See, e.g., Arrington v. ER Physicians Group, 04-1235

(La.App. 3 Cir. 9/27/06), 940 So.2d 777; Arrington v. Galen-Med, Inc., 06-2923, 06-

2944, 06-2968 (La. 2/2/07), 947 So.2d 719, 724, 727; Taylor v. Clement, 04-1069

(La.App. 3 Cir. 9/27/06), 940 So.2d 796; and Taylor v. Clement, 06-2518, 06-2600,

06-2581 (La. 2/2/07), 947 So.2d 721, 730, 732. At issue here is the plaintiffs’

assertion that the Medical Malpractice Act’s limitation of recovery, i.e., the “cap,”

contained within La.R.S. 40:1299.42(B)1 is unconstitutional.

1 The statute presently provides:

B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, and costs specifically provided for by this Paragraph for all malpractice claims because of injuries to or death of any one patient. The sole cost for which a health care provider qualified under this Part may be assessed by a trial court shall be limited to the cost incurred prior to the rendering of a final judgment against the health care provider, not as a nominal defendant, after a trial on a malpractice claim, including but not limited to, costs assessed pursuant to Code of Civil Procedure Article 970 in any instance where the board was not the offeror or offeree of the proposed settlement amount. The health care provider shall not be assessed costs in any action in which the fund intervenes or the health care provider is a nominal defendant after there has been a settlement between the health care provider and the claimant. Pursuant to Sibley v. Board of Supervisors of Louisiana State University, 477

So.2d 1094 (La.1985) (on rehearing), the trial court conducted an April 2011

evidentiary hearing in order to consider the constitutional challenges posed by the

cases, now consolidated.2 The trial court determined that La.R.S. 40:1299.47(B) was

unconstitutional “as violative of the equal protection and adequate remedy guarantees

of the Louisiana constitution.” In its reasons for ruling, the trial court relied on a then-

recently released opinion of this court in Oliver v. Magnolia Clinic, 09-439, p. 36

(La.App. 3 Cir. 8/31/11), 71 So.3d 1170, 1192 (wherein a majority of the en banc

court concluded that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the

extent it includes nurse practitioners within its ambit, [and] violates the equal

protection and adequate remedy guarantees of the Louisiana Constitution and La.R.S.

40:1299.41(A)(1)[.]” ).

However, subsequent to the trial court’s ruling in the present matter, the

Louisiana Supreme Court reversed that aspect of the Third Circuit’s ruling finding the

malpractice cap unconstitutional. See Oliver v. Magnolia Clinic, 11-2132 (La.

3/13/12), 85 So.3d 39. In doing so, the Louisiana Supreme Court relied upon the

reasons it previously expressed in Butler v. Flint Goodrich Hosp. of Dillard Univ.,

607 So.2d 517 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338 (1993), and

declared that “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as

it applies to all qualified health care providers, including nurse practitioners.” Oliver,

(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient's compensation fund pursuant to the provisions of R.S. 40:1299.44(C).

(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection. 2 For decretal information in the consolidated case, see the companion ruling in Charles Taylor, Jr. v. Dr. Richard Clement, 12-996 (La.App. 3 Cir. _/_/13), _ So.3d _.

2 85 So.3d at 50. The supreme court reinstated the underlying trial court judgment in

full. Id.

Following the trial court’s ruling in the present matter, the defendants sought

direct review from the supreme court pursuant to La.Const. art. 5, § 5(D). 3 See

Arrington v. Galen-Med, Inc., 12-0908 (La. 5/22/12), 89 So.3d 1159. In a per curiam

opinion, the supreme court stated:

Pretermitting the merits, we find that at the time the district court rendered its judgment, it did not have the benefit of our recent opinion in Oliver v. Magnolia Clinic, 11-2132 (La. 3/13/12), 85 So.3d 39. In Oliver, we reinstated our holding in Butler v. Flint Goodrich Hospital, 607 So.2d 517 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), and recognized the malpractice cap was constitutional.

Accordingly, the judgment of the district court is vacated and set aside. The case is remanded to the district court to reconsider its ruling in light of Oliver v. Magnolia Clinic, 11-2132 (La. 3/13/12), 85 So.3d 39.

Id.

On remand, the trial court issued the following reasons in a June 2012 ruling:

This matter returns to this Court following the May 22, 2012 Per Curiam ruling of the Louisiana Supreme Court vacating this Court’s judgment of September 16, 2011 and directing this Court to reconsider its ruling in light of Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), [85 So.3d 39]. Oliver is crystal clear in upholding the constitutionality of La.R.S. 40:1299.42(B). Although Oliver involves nurse practitioners, the Supreme Court’s analysis begins with considering the statute’s constitutionality “as applied to any healthcare provider.” Thus, the Court maintained the constitutionality of the statute without qualification.

Accordingly, this Court finds La.R.S. 40:1299.42(B) constitutional[.]

The resulting judgment provided that:

3 Article 5, § 5(D) provides that: “In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional or (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.”

3 The above-captioned cases were consolidated to consider challenges to the constitutionality of the limitation provided at La. R.S. 40:1299.42(B). A Sibley II hearing, Sibley v. Board of Supervisors of L.S.U., 477 So.2d 1094 (on rehearing) (La. 1985), was held from April 4 through April 7, 2011 before the Honorable District Judge Clayton Davis.

On September 16, 2011, this Court entered Judgment declaring Section 1299.42(B) unconstitutional as violative of La. Const. art. I, §§ 3 and 22. The Court rejected the plaintiffs’ challenges based on any other constitutional provisions, including La.Const. art. I, §§ 1, 2, and 4; art. II, §§ 1 and 2; art. III, § 12(A)(3) and (7); and, art. V, § 16.

Appeal was taken directly to the Supreme Court of Louisiana pursuant to La. Const. art. V, § 5(D), and on May 22, 2012, the Supreme Court vacated the September 16, 2011 Judgment of this Court and remanded this case for reconsideration of the ruling of unconstitutionality in light of Oliver v. Magnolia Clinic, [11-2132 (La. 3/13/12), 85 So.3d 39].

Having reconsidered its ruling of September 16, 2011 in light of the Supreme Court’s Opinion in Oliver v. Magnolia Clinic, and for the reasons stated in this Court’s “Ruling” dated June 4, 2012.

IT IS HEREBY ADJUDGED AND DECREED that La.R.S. 40:1299.42(B) is fully constitutional.

The plaintiffs appeal from that judgment and, in their brief to this court, present

the following issues for review:

1. The Butler majority misunderstood the “cap” and violated basic rules for interpreting the constitution and statutes by failing to consider, apply or interpret the actual language of Art. I., Sec. 22: which grants plaintiffs “adequate damages by due process of law and justice”

2. The three alleged “benefits” cited in Butler either do not apply in these present cases or have not been challenged and would remain in existence even if the constitution were enforced therefore Butler is distinguishable and does not apply

3. Multiple constitutional provisions, which should be read in para materia, were not analyzed in Butler or Oliver, but make pre- determination of the adequacy of damages by legislative edict rather than by judicial due process unconstitutional

a. Art. I. Sec. 2 Due Process b. Art. I., Sec. 3 Equal Protection c. Art. I., Sec. 22 “Adequate damages by Due process of law and justice” 4 d. Art. II, Sec. 1 & 2, Separation of Powers e. Art. III., Sec. 12 A. (3) & (7) Limits on Legislative Power f. Art. V., Sec. 16 Original Jurisdiction of District Courts

4. Evidence below in the Sibley II hearing shows that there is no rational basis to believe that a statute preventing Courts from exercising their Constitutional power to determine and enforce damages under La. C.C. 2315 will effect [sic] the unfettered power of insurance companies to increase rates; in fact, 37 years of one of the lowest caps in the nation has resulted in Louisiana malpractice rates rising from 25th to 17th highest in in the nation, while Louisiana remains 50th in the nation in health care rankings according to official La. DHH reports, while 64 of 64 parishes remain medically underserved

5. The Court should reject the claims of defendants/intervenors that the provisions of the Medical Malpractice Act are not severable from the “cap” because (a) the Act specifically provides that if any provision or item or application of the act is held invalid, such invalidity shall not effect [sic] other provisions which can be given effect (Sec. 2 of Act 817 of 1975), [Arrington, Vol. 4, p. 924]; and (b) because plaintiffs have not challenged the validity of any other provisions; and defendants did not raise as an affirmative defense, and plaintiffs objected to any attempt to inject that defense at trial; and (c) the evidence shows th[a]t the other provisions of the Act, such as the PCF and Medical Review Panels are well liked by health care providers and provide favorable benefits to health care providers and can function whether or not a cap is in place; and (d) insurers have been prepared to deal with this issue since inception by selling policies for $1 million/$3 million in coverage, carving out the PCF level of liability.

6. Judges and juries that hear the contemporaneous evidence on both sides of the case, are in a better position to evaluate the damages in each individual case than the 1975 legislature is in. The Constitution recognizes this truth and requires “due process”. The Court needs to contemplate the difference between legislative power and judicial power.

7. The defendants failed to meet their burden of proof at trial to show a rational basis for placing the entire burden of the “cap” on the most seriously injured or killed victims of malpractice, Sibley II declared the standard and placed the burden on the supporters of the discriminatory legislation. No evidence in Sibley II, Butler, Oliver, Arrington, or Taylor has provided a justification why the burden of caps should be placed upon only the most disadvantaged.

5 Additionally, the plaintiffs have filed a motion for en banc hearing. Consideration of

the motion was referred to the panel on the merits.

Discussion

Louisiana Supreme Court Jurisprudence

As can be seen from the plaintiffs’ issues presented for review, as set forth

above, the plaintiffs seemingly focus on the correctness of Louisiana Supreme Court

jurisprudence. Namely, the plaintiffs question Butler, 607 So.2d 517, and whether the

1992 decision appropriately addressed the question of adequacy of damages and

whether it sufficiently considered the difficulties malpractice plaintiffs face in

recouping losses.

Given the context of the plaintiffs’ arguments, we first observe that it is

patently clear that “trial courts and courts of appeal are bound to follow the last

expression of law of the Louisiana Supreme Court.” Oliver, 85 So.2d at 44.

Significantly, in Oliver, the supreme court determined that the “court of appeal

committed error in ruling contrary to Butler.” Id. Having set forth this principle, the

supreme court revisited its “reasoning of Butler to remind courts of this State of the

last expression of law relative to the cap’s constitutionality.” Id. Ultimately, of

course, the supreme court reiterated its holding in Butler. Id.

Mindful of this pronouncement and of the court of appeal’s obligation to follow

the direction of the supreme court, we find no merit in the plaintiffs’ arguments

regarding the rationale of Butler.

Neither do we find merit in the plaintiffs’ contention that, because of its argued

limitations, Butler “should have no precedential effect” in the present consolidated

matters. For example, the plaintiffs suggest that Butler is not controlling in this matter

insofar as Butler discussed the policy benefits afforded by the Medical Malpractice

Act’s provision for future medical benefits. They note, however, the instant cases 6 involve injuries that led to the deaths of the patients. Thus, the plaintiffs argue, these

cases do not involve consideration of the benefit of the availability of future medical

benefits.

In short, we reject the plaintiffs’ argument that Butler is neither persuasive nor

controlling in these matters. Both Butler and Oliver are broad constitutional

statements by the supreme court which included evaluation of a variety of policy

considerations attendant to the Medical Malpractice Act. We find no distinction in the

present iteration of this case which would suggest a departure from the

straightforward pronouncement in those cases. As set forth above, as recently as

Oliver, 85 So.3d at 44, the supreme court confirmed its ruling in Butler, reminding the

“courts of this State of the last expression of law relative to the cap’s

constitutionality.” As an intermediate court of appeal, we do not now deviate from

that expression.

These assignments lack merit.

Constitutional Considerations Beyond Equal Protection

The plaintiffs lodged a multifaceted constitutional argument in the present case.

In addition to their arguments regarding the constitutionality of La.Const. art. 1, § 3

and La.Const. art. 1, § 22, the plaintiffs questioned the constitutionality of La.R.S.

40:1299.42(B) in light of: La.Const. art. 1, § 1: La.Const. art. 1, § 2; La.Const. art. 1,

§ 4; La.Const. art. 2, § 1; La.Const. art. 2, § 2; La.Const. art. 3, § 12(A); and La.Const.

art. 5, § 16. Notwithstanding its due process and equal protection determination in its

first ruling, the trial court in this case rejected the plaintiffs’ remaining constitutional

challenges. The trial court reiterated its determination in its judgment on remand,

stating that “La.R.S. 40:1299.42(B) is fully constitutional.”

In its brief to this court, the plaintiffs again seem to assert that neither Butler

nor Oliver is applicable in this case as the supreme court did not specifically analyze 7 the above designated aspects of the constitutional argument. Admittedly, in Butler

and, subsequently, in Oliver, the supreme court squarely focused on due process and

equal protection considerations addressed in those cases. However, in both cases, the

supreme court ruled in broad constitutional terms, referring to the underlying policy

considerations of the Medical Malpractice Act and, in Butler, 607 So.2d at 521,

stating that: “Overall, the Louisiana Medical Malpractice Act represents a reasonable

but imperfect balance between the rights of victims and those of health care providers.

It does not violate the state or federal constitutions.” (Emphasis added.) Similarly in

Oliver, 85 So.3d at 45, the supreme court found “the malpractice cap constitutional as

it applies to all qualified health care providers.” Pointedly, the supreme court

explained that its “job, as a court tasked with reviewing laws, is to ensure statutes are

free of constitutional infirmities. Once satisfied that legislation does not infringe upon

constitutional rights, any other perceived infirmity is to be addressed by the

legislature.” 4 Id. at 46.

Given the breadth of the supreme court’s pronouncement in its jurisprudence,

we find no error in the trial court’s rejection of the plaintiffs’ constitutional claims in

all regards nor in its determination that “La.R.S. 40:1299.42(B) is fully

constitutional.” Rather, the trial court accurately remarked in its ruling on remand

that, in Oliver, 85 So.3d 39, the supreme court “maintained the constitutionality of the

statute without qualification.”

Accordingly, we find that the plaintiffs’ claims lack merit.

4 Additionally, we point out that the supreme court reinstated the trial court’s judgment in full. Earlier in its opinion, the supreme court reported that the trial court “rejected each of the Olivers’ challenges to the cap’s constitutionality[.]” Oliver, 85 So.3d at 42. Footnote 3 of Oliver indicates that:

The Olivers asserted the statute violated the following provisions of the Louisiana Constitution: Article I, § 2 (due process); Article I, § 3 (equal protection); Article I § 22 (adequate remedy); Article V, § 16 (original jurisdiction of the courts); Article V, § 1 (judicial power); Article II, §§ 1 and 2 (separation of powers); and Article II, § 12(3) and (7) (prohibition against special laws). 8 Motion for En Banc Hearing

Finally, the plaintiffs filed a motion with this court seeking an en banc hearing.

Finding such a hearing unnecessary given the clarity of controlling supreme court

precedent, we deny the motion.

DECREE

For the foregoing reasons, the judgment of the trial court, rendered on June 18,

2012 is affirmed. The motion for en banc hearing is denied. All costs of this

proceeding are assessed to the plaintiffs-appellants.

9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-995

(Consolidated With)

12-996

CHARLES TAYLOR, JR., ET UX.

DR. RICHARD CLEMENT, ET AL.

THIBODEAUX, Chief Judge, specially concurring.

I still maintain my position that the medical malpratice cap is

unconstitutional on the bases of equal protection, due process, and separation of

powers. However, I must sacrifice my intellectual independence and judicial

beliefs to what is the clear pronouncement of the Louisiana Supreme Court in

Oliver v. Magnolia Clinic, 11-2132 (La. 3/13/12), 85 So.3d 39.