This is the first case to come before this Court testing various provisions of Louisiana's Medical Malpractice Act first passed in 1975. La. R.S. 40:1299.41 et seq.
We granted a writ of review on application of defendant Daniel W. Goldman, M.D. who complained of the trial court ruling by which four provisions of the Medical Malpractice Act were declared unconstitutional.
The litigation was prompted by the purported negligence of three medical doctors
Louisiana Revised Statute 40:1299.41(E) provides that "No dollar amount or figure shall be included in the demand in any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises." Revised Statute 40:1299.47 provides that "No action against a health care provider covered by this Part, or his insuror, may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel," unless waived by agreement of the parties. R.S. 40:1299.47(B). Relying upon these statutory provisions, and contending that the plaintiff had not presented her complaint to a medical review panel, one of the defendants, Dr. Goldman, filed an exception of prematurity and an alternative motion to strike the provisions of plaintiff's petition by which a specific dollar amount was sought.
After dismissal of the exceptions for reasons not here pertinent, and reinstitution of same, and following the submission of argument and briefs, among which was plaintiff's contention that the exceptions were baseless because the medical malpractice act was unconstitutional, the trial judge dismissed both exceptions, and in so doing expressly declared unconstitutional four provisions of the medical malpractice statute: R.S. 40:1299.41(E) (no dollar amount allowed in demand) and R.S. 40:1299.47 (pre-suit medical review panel), the two provisions raised by defendant's exceptions; and R.S. 40:1299.42(B)(1) (absolute limit of recovery of $500,000) and R.S. 40:1299.44 (patients' compensation fund), two provisions not at issue in connection with defendant's exceptions.
PROVISIONS OF MEDICAL MALPRACTICE ACT
Prior to 1975, medical malpractice claims whether asserted in tort or contract were treated under our law much like other tort or contract claims. In that year, however, reacting to what it considered a crisis in the delivery of medical services to the people of this state, a crisis ostensibly prompted by prohibitive costs in connection with medical malpractice insurance, the state legislature passed several statutes which for simplicity we will refer to as the Medical Malpractice Act of 1975.
The most significant provisions of the act fit generally in the following scheme. A
The health care provider who chooses to qualify may do so by filing with the Commissioner of Insurance proof of financial responsibility. R.S. 40:1299.42(A)(1). This proof can be a policy of malpractice liability insurance in the amount of at least $100,000.00 per claim or, in the event the health care provider is self insured, proof of financial responsibility in excess of $100,000.00. R.S. 40:1299.42(E). The provider must also pay a surcharge which is an amount determined by the Louisiana Insurance Rating Commission based upon actuarial principles; that sum cannot exceed twenty percent of the costs to each health care provider for maintenance of financial responsibility (his $100,000.00 policy, etc.). R.S. 40:1299.42(A)(2).
The health care provider who qualifies under the act gets the advantage of the provisions thereof, one of which is that the total amount recoverable from all defendants for any injury or death of a patient may not exceed $500,000.00 plus interest and costs, R.S. 40:1299.42(B)(1); and a particular health care provider is not exposed to an amount in excess of $100,000.00 for all claims of malpractice because of injury to or death of any one person, R.S. 40:1299.42(B)(2). Thus, the act allows a subscriber to limit directly the maximum amount of his total liability for any malpractice claim which arises after he enters the program.
Under the act, the $500,000 limits are structured in the following way. The single claimant can get no more than $500,000 including $100,000 from each liable doctor and the balance from the patients' compensation fund. R.S. 1299.42(B). The patients' compensation fund which is made up of the annual surcharges is administered by a risk manager, an insurance company chosen by the Commissioner of Insurance for this purpose in accordance with the public bid laws of the state. See R.S. 40:1299.44; R.S. 40:1299.41(A)(10). Thus, while the malpractice victim with a meritorious legal claim who is a patient of a qualified health care provider is limited to recovery of not more than $500,000, he is presumably assured of recovery of at least $100,000 by virtue of the liability insurance and/or other financial responsibility security. Moreover, he may receive an additional $400,000 from the patients' compensation fund, but only to the extent that there is enough in the fund to honor all claims.
Linked to these limitations on awards is the act's prohibition against ad damnum clauses. By this legislation Louisiana has statutorily precluded a prayer for a specific amount of damages in an action for negligent health care. In his petition the malpractice victim of a qualified provider may ask only for "such damages as are reasonable in the premises," not a specific dollar amount. R.S. 40:1299.41(E). This provision assertedly is beneficial to health care providers because it prevents the possibility of a jury's being unduly impressed by the quantum of damages sought in the petition. It is intended to prevent the implementation in the public consciousness of inflated ideas of what claims are worth. 50 Tul.L. Rev. 655, 669-70 (1976); 1975 Duke L.J. 1417, 1451-53 (1976). It is hoped by the act's proponents that by countering these psychological causes of large awards the size of malpractice judgments will gradually shrink to "acceptable" levels. 50 Tul.L. Rev. at 670. The consequent reduction in total dollar recoveries would assertedly ease the insurance premium burden and encourage continued medical care by a great number of practitioners.
A second advantage to a health care provider who has qualified under the act is that his patient must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law. R.S. 40:1299.47. Although this requirement can be waived by the agreement of both parties, it is assumed that most malpractice cases against health care providers will be filtered through such a panel.
Under the Louisiana act the medical review panel is made up of three physicians and a nonvoting attorney-chairman. R.S. 40:1299.47(C). Two of the physicians are selected by the plaintiff and defendant respectively, and these two choose a third, all of whom are required to serve. Evidence is presented to the panel only in writing by such means as medical charts, laboratory tests, depositions, and the like. Any party can cause to issue subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence. Either party may question the panel regarding any matters relevant to issues to be decided by the panel. Under certain conditions the panel may consult with medical authorities.
The sole duty of the panel is to express its expert opinion(s). Within thirty days but in all events within one hundred and eighty days after selection of the last member of the panel, the panel shall render signed and in writing one or more of the following expert opinions:
No findings are made by the panel as to damages.
Pretrial screening through a medical review panel is designed to weed out frivolous claims without the delay or expense of a court trial. It is thought that the use of such panels will encourage settlement because both parties will be given a preliminary view of the merits of the case. 1975 Duke L.J. 1417, 1456-63. If a claim is found by the panel to be without merit it is thought that the claimant will be likely to abandon his claim or agree to a nominal settlement. Martin H. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759 (1977); 50 Tul.L.Rev. supra at 681; U.S. Dept. of Health, Education & Welfare, Pub.No. (OS) 73-88, Medical Malpractice: Report of the Secretary's Commission on Medical Malpractice, p. 91 (1973). Moreover, a plaintiff who gains a favorable opinion from the panel may be able to negotiate a favorable settlement with his defendants, a procedure which also avoids much of the time and expense of a trial. HEW Report, supra at 91; Mallor, A Cure for the Plaintiff's Ills?, 51 Ind.L.J. 103, 106-07 (1975). See Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970). Thus, to the extent that the use of medical review panels encourages settlement of suits before trial, litigation costs will probably be reduced. Because out of court settlements usually do not garner the publicity of jury verdicts it is also hoped by proponents of the legislation that publicity concerning the award figure will be minimal and that this fact will gradually reduce awards granted by juries. Redish, supra at 767. Additionally since jury awards are believed generally to be larger than settlements, the increase in prevalence of the latter should serve to reduce the overall payment of claims. Thus, litigation costs and actual awards are expected to be lessened by virtue of the employment of pre-suit medical review panels.
The provisions of the medical malpractice act are statutorily declared severable. Acts 1975, No. 817 § 2; Acts 1976, No. 183 § 8; Acts 1977, No. 143 § 2.
LIMITATION OF LIABILITY AND PATIENTS' COMPENSATION FUND PROVISIONS
The four provisions of the medical malpractice act which the trial judge in this case declared unconstitutional form the principal means by which health care providers in the private sector are to be treated differently from other tort perpetrators in an effort to solve the feared medical malpractice crisis. The absolute limit on recovery to $500,000 as provided for in R.S. 40:1299.42(B)(1) and the structure of the patients' compensation fund as set out in R.S. 40:1299.44 together form part of the mechanism by which qualified health care providers limit their liability. The medical review panel procedure set up through R.S. 40:1299.47 is intended to insulate health care providers from fighting frivolous claims through expensive and tedious court procedures, and to encourage settlement of clearly meritorious claims. The ad damnum proscription of R.S. 40:1299.41(E), while of
In its judgment, the trial court declared unconstitutional each of these four provisions. Only two of them, however, were raised by the pleadings. The need for plaintiff to convene a medical review panel before filing suit and the failure of plaintiff to comply with the ad damnum proscription were raised by defendant Goldman's exception of prematurity and his alternative motion to strike. The plaintiff filed no further pleadings in response to defendant's exceptions and motion, but in a memorandum she attacked the constitutionality of the entire statute.
It is our rule of long standing to refrain from considering constitutional issues unless such a determination is necessary to a resolution of the present rights of the litigants in the case. Aucoin v. Dunn, supra; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660 (1942).
Undoubtedly, many aspects of the medical malpractice act will be subjected to judicial scrutiny before it becomes settled to what extent the legislature's remedial effort is consistent with constitutional restraints. However, each provision is entitled to judicial evaluation in the context of a justiciable issue the resolution of which requires its application. The case at bar in its present posture properly presents for consideration but two facets of the medical malpractice act: (1) the requirement that the plaintiff first submit her complaint to a medical review panel, the composition of which is provided by R.S. 40:1299.47(B), and (2) the prohibition against the traditional ad damnum clause praying for damages in a specific dollar amount, as provided by R.S. 40:1299.41(E), second clause. These were the only two provisions of the act pertinent to defendant's objections, see C.Civ.P. art. 852, in the present posture of the case.
Thus, we determine that only the constitutionality of R.S. 40:1299.47(B) and R.S. 40:1299.41(E) are before us. We will therefore make no determination relative to the constitutionality of R.S. 40:1299.42(B)(1) (the $500,000 limitation) or R.S. 40:1299.44 (the patients' compensation fund). For this reason, we will vacate the trial court's judgment holding unconstitutional R.S. 40:1299.42(B)(1) and R.S. 40:1299.44.
CONSTITUTIONAL CHALLENGES: EQUAL PROTECTION
We now turn to an examination of the constitutionality of the provisions of the act which require claims screening through a medical review panel and proscribe use of an ad damnum clause.
The court below found that the medical review panel provision was unconstitutional because various portions of it violated the equal protection clauses of the state and federal constitutions, the due process clauses of the state and federal constitutions, the state constitutional right to open access to the courts, and the state constitutional prohibition against special laws. Because we feel the equal protection challenge to be the most significant, we will deal with it first. The basis of the equal protection attack is that it is only malpractice victims treated by qualified health care providers who must convene the review panel and who may not set out in their petitions a specific amount of damages. Malpractice victims of those who are treated by non-qualifying health care providers are free to file suit without convening a medical review panel and may pray for a specified amount of damages just as in any other lawsuit. Correspondingly, plaintiff argues that the medical malpractice act confers benefits on the medical malpractice defendant who has qualified under the act which are unavailable to other defendants in tort cases. She emphasizes that this differing treatment results from a voluntary action on the part of the doctor, who may choose to qualify under the act or not, and that his action can be taken without notice to his patients.
Both the federal constitution and the Louisiana constitution mandate equal
Certainly in the present case we are faced with a situation where parties similarly situated (victims of malpractice) are treated differently, the malpractice victims of qualified health care providers must convene a presuit medical review panel and are prohibited from praying for a specified sum of money, while victims of health care providers who have chosen not to qualify under the act are not governed by these provisions.
But the statute does not affect fundamental rights or create a suspect classification. Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. See Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); compare San Antonio Independent School District v. Rodriguez, supra. Suspect classifications are those involving such unalterable traits as race, alienage and religion. Chabert v. Louisiana High School Athletic Ass'n, 323 So.2d 774 (La.1975). The right to immediate commencement of a malpractice lawsuit without panel determination, and the right to state the total of sought damages in a petition are not fundamental rights jealously protected by the highest standard of the equal protection clause. Moreover, patients of qualified health care providers do not comprise a suspect classification. Thus, because the "compelling state interest" test is not appropriate in this case, a lesser standard must be utilized. Under this lesser standard, the thrust of our inquiry becomes this: what valid state purpose is reasonably furthered by this legislative classification.
The valid state purpose said to be served by the two provisions of the medical malpractice act before us is the lowering of the cost of health care generally and the assuring of available medical care for the citizens of the state. We cannot say that the two challenged provisions of the act adopted by the legislature represent an unreasonable response to the medical malpractice problem. Nor are the provisions especially far reaching.
The proscription against the ad damnum clause does not set a limit on an award, nor does it restrict payment of judgment; it merely prevents a plaintiff from praying in his pleadings for a specified sum of money, usually vastly inflated. See Affect v. Milwaukee & Surburban Transp. Corp., 11 Wis.2d 604, 106 N.W.2d 274 (1960); 1975 Duke L.J. supra at 1452. The legislature believes that this proscription will have a beneficent influence in effecting reasonable jury awards, gradually causing them to be reduced to what are viewed as more appropriate levels. We find this enactment rationally related to an appropriate governmental interest, the guarantee of continued health care services for our citizens at reasonable cost.
In requiring a pre-suit medical review panel the act is not unreasonable; it has no far reaching or especially adverse effect upon the malpractice victim's or health care provider's rights. While the savings in overall cost are yet to be proven we cannot say that this legislative effort will not further the accomplishment of what is surely a plausible goal. As did the Florida Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), we hold that the medical review panel does not exceed constitutional limits.
Plaintiffs also complain that the fact that not all health care providers are required to qualify under the act unfairly allows potential malpractice defendants to control how they will be sued. We find no merit to this argument because we believe that the legislature's decision to allow doctors to decide for themselves whether to join the plan is rational. The present system does not force all doctors to qualify under the plan, but is available for those doctors, among others, who do not presently have malpractice insurance, those who cannot afford the premiums for sufficient coverage without substantially raising their fees, and those who fear future loss of coverage or higher premiums. In offering an insurance plan for such groups as these who might otherwise practice without full coverage, or give up their medical practice, the legislature has reasonably allowed health care providers to decide whether or not they wish to qualify under the act.
We hold that an appropriate governmental interest is suitably furthered by distinguishing between classes of medical malpractice victims as is done in this act and by governing patients of qualified doctors by the clauses requiring a medical review panel and proscribing an ad damnum clause. Accordingly the equal protection clauses of the state and federal constitutions are not offended.
The trial judge held that the medical review panel provision violates substantive due process in that the act bears no real and substantial relationship to promotion of the public health. He found no merit in the defendant's position that the use of the panel guaranteed availability of medical malpractice insurance at reasonable rates by encouragement of settlement of malpractice cases so as to ease the pressure placed on insurance premiums by extremely high jury verdicts.
Basically for the same reasons as those set out in our discussion of the equal protection issue above, we hold that the medical review panel requirement and the ad damnum clause proscription do not violate federal or state guarantees of substantive due process.
A statute may be held to violate substantive due process when it does not bear a real and substantial relationship to an appropriate governmental objective. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Louisiana State Bd. of Optom. Exam. v. Pearle Optical, 248 La. 1062,
The two provisions of the medical malpractice act challenged in this litigation operate to eliminate unwarranted recoveries in malpractice actions without depriving a deserving patient-plaintiff of compensation. Screening of claims through the medical review panel is expected to cause many claims to be served without trial; and the prohibition against a petition's requesting a particular dollar amount in recovery is expected to reduce the number of occasions when excessive verdicts are rendered. These influences are expected to limit indirectly the overall amounts paid out by health care providers and, consequently, to ease the insurance premium burden. It is with the goal of avoiding a crisis in medical care brought on by the inability of doctors and others to practice because they are unable to gain malpractice insurance at all, or are unable to gain malpractice insurance at tolerable rates, that the legislature has enacted these provisions. We find that the provisions do bear a real and substantial relationship to the preservation and promotion of the public welfare, i. e. the need for health care for our citizens at reasonable cost. For this reason, we hold that the medical review panel and ad damnum proscription do not violate state or federal guarantees of substantive due process.
ACCESS TO THE COURTS
The trial judge found the medical review panel provision to be an unconstitutional infringement upon a citizen's guaranteed right to access to the courts. He found that the panel causes delay and adds additional expense,
The constitutional guarantee of access to the courts is Article I, section 22 of the Constitution which reads: "All courts shall be open, and every person shall have an adequate remedy 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." This provision, 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. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954). When a claimant is asserting a right not subject to special constitutional protection, however, access to the courts may be restricted if there is a rational basis for that restriction. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (upheld appellate court filing fee requirement for litigant seeking increase in welfare payments); United States v. Kras, supra (upheld state statute which required payment of court costs and fees by bankruptcy applicant); Jones v. Union Guano Co., 264 U.S. 171, 44 S.Ct. 280, 68 L.Ed. 623 (1924) (law requiring chemical analysis by state chemist of fertilizer before institution of action for damages upheld).
The right of malpractice claimants to sue for damages caused them by medical professionals does not involve a fundamental constitutional right. Thus, it is to be
The act provides, at the expense of a delay in filing the suit in court, a procedure for review of the claim. The panel determines from the evidence submitted whether there is a basis for the claim, and gives its opinion accordingly. If the panel determines the claim is substantial, the claimant obviously is benefited. If the panel determines the claim is groundless, the claimant is informed of what certain medical experts think of the merits of his claim. If he disagrees with their analysis he may still sue for a vindication of his rights in a court of law. The law specifically provides that prescription does not run during the period the matter is subject to consideration by the medical review panel and for a period of ninety days following its opinion.
Moreover, the fact that the plaintiff may not pray in his petition for a specified monetary sum does not restrict the judge's or jury's setting of damages. And these provisions do not restrict plaintiff's recovery.
In all cases which go to trial the judge or jury remain the final arbiter of factual questions concerning liability and quantum. We find that these two provisions are reasonable, and that they do not unconstitutionally restrict access to the courts. See Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (2d Dept.1976).
The trial court further found that the act violated the state constitutional proscription against special laws because the classification under the act does not embrace all health care providers but only those who have chosen to qualify under the act; because the normal legal rules of evidence are statutorily altered as to proceedings before the panel; and because the non-judicial panel wrongly serves in a judicial role.
Article 3, section 12 of the 1974 Constitution prohibits certain kinds of special laws, and the plaintiff urges that the medical malpractice act violates these particular constitutional provisions:
The provisions of Article 3, sections 12(A)(7) and 12(B) are clearly inapplicable.
The issue is a bit closer with respect to Article 3, section 12(A)(3) which prohibits the passage of a special law "concerning any civil or criminal actions." Certainly it is arguable that the medical malpractice act is special legislation affecting civil actions in the sense that it applies to a group within a class of persons otherwise subject to liability for their negligent acts according to the usual codal and procedural law. However, this constitutional provision is applicable only where there is concerned
Neither of these situations prevail here. Whether considered alongside all tort feasors or alongside health care providers who do not qualify under the act, the health care providers who do qualify under the act are a distinctive class whose separate treatment, for the reasons we have recited hereinabove, does not offend the equal protection clauses of the United States and Louisiana constitutions.
Thus, there is no merit to plaintiff's complaints that the class does not embrace all health care providers and that the nornal legal rules of evidence are statutorily altered as to proceedings before the panel. Nor is there merit to the contention that a non-judicial panel serves in a judicial role, because the panel is not an adjudicatory body.
For these reasons we find Article 3, section 12 inapplicable here and plaintiff's arguments in support of her attack that the act is an unconstitutional special law are without merit.
QUID PRO QUO
In various sections of her brief plaintiff argues that the pertinent provisions of the medical malpractice act are invalid on a quid pro quo principle, presumably an argument that the change in the law takes from her and similarly situated litigants certain substantive and procedural rights while giving her nothing (or very little) in return.
The quid pro quo doctrine, which has been mentioned by some federal and state courts, presumably arose from a reading of dicta in New York Central Railroad v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917), which upheld the constitutionality of workmen's compensation laws. Redish, supra at 785. The Court in White, however, held that "No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit." 243 U.S. at 198, 37 S.Ct. at 250.
Even were we to assume the correctness of the plaintiff's underlying argument that the medical malpractice act abrogates a previously existing right while offering no substantial benefit in return, we are aware of no constitutional principle which would be offended by that fact. For this reason, we find no merit in plaintiff's argument that the medical malpractice act shall be invalidated because it fails to offer a quid pro quo.
Legislative enactments are clothed with the presumption of constitutionality and regularity. Johnson v. Welsh, 334 So.2d 395 (La.1976). This presumption continues until the party challenging the act's constitutionality establishes that it contravenes some provision of the state or federal constitution. Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1968). We have reviewed the many contentions urged by the plaintiff in her attack upon the two pertinent statutory provisions. We find that she has not established that these provisions of the medical malpractice act are unconstitutional. Courts do not rule on the social wisdom of statutes, nor on their workability in practice. Imperfections in legislation are not in themselves grounds for judicial intervention unless those imperfections result in denial of constitutional rights or infringement on paramount statutory rights. James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). We are satisfied that the two provisions of the act now before us, institution of the medical review panel and prohibition of ad damnum clauses, are not constitutionally invalid.
For the foregoing reasons the ruling of the trial judge overruling the exception of
REVERSED AND REMANDED.