We granted rehearing to consider plaintiff's arguments that: (1) the statutory prohibition of a medical malpractice judgment exceeding 500,000 dollars does not apply to a state hospital governing board's independent liability for its own negligence, as opposed to its vicarious liability for the medical malpractice of its health care employees; (2) Jane Sibley's injuries were caused by the LSU Board's independent
We also take judicial notice of Act No. 239 of the 1985 regular session of the Legislature, which retroactively repealed the statutory limitation on liability insofar as it applied to the recovery of medical expenses.
1. Background Pertinent to Rehearing
Jane Sibley, age 19, suffered permanent, devastating mental and physical injuries in 1980 while she was a psychiatric patient at the LSU Medical Center in Shreveport, a hospital under the supervision and management of the LSU Board. The LSU Medical Center is a teaching hospital staffed primarily by physicians who teach at LSU Medical School. At the time of Sibley's injuries, the hospital employed a team system to treat psychiatric patients and train interns and residents. Each team consisted of a staff psychiatrist as its leader, along with residents, interns, nurses, social workers, and psychologists. Most of a team's health care was provided by its less experienced residents, interns and auxiliary personnel, under the supervision and review of the staff psychiatrist and senior residents. A team's diagnosis and treatment of an individual patient was not subject to review by any independent committee.
Because of lack of funds, Sibley transferred to LSU Medical Center from a private psychiatric hospital where she had been treated conservatively for depression. Her LSU Medical Center team's staff psychiatrist changed her diagnosis from depression to psychosis. Members of the team administered anti-psychotic drugs to her in increasing dosages and combinations over a period of weeks. On or about September 15, 1980, Sibley developed an anticholinergic reaction which culminated in cardio-pulmonary arrest and massive brain damage. It was proven that the team's acts of malpractice caused Sibley's mental and physical debilitation which consign her to a lifetime of institutional care, that her medical expenses exceeded $423,000 at the time of trial in January 1983, and that her total damages obviously exceed the $500,000 statutory limit by a yet undetermined amount. Because they concluded that the statutory limitation is valid and applicable, the previous courts and this Court, 462 So.2d 149, in its original opinion considered that an award limited to $500,000 was required by law.
Plaintiff argues that the evidence shows that the LSU Board was negligent in permitting psychiatric treatment and administration of drugs by teams without independent patient care review, that the Board's administrative failure caused Sibley's injury, that the Board's liability for its own negligence is independent and separate from its vicarious liability for the delicts of its agents and servants, and that, even if the Board may indirectly benefit from the statute insofar as its vicarious liability is concerned, its independent liability is unaffected because the statute is not designed to protect the state or the Board, but was instead intended to afford protection to individual health care providers acting for the state by placing a ceiling on their liability and providing for the payment of judgments against them. In the event plaintiff is not entitled to judgment against the Board based on its independent negligence, he points out that we did not address all of his arguments on original hearing that the statutory limit is unconstitutional, and asks for relief on these grounds. Before we reach these questions, however, we should deal with a change in the scope of the
2. Repeal of Limitation on Recovery of Medical Expenses
By Act No. 239 of 1985, the Legislature amended the limitation of liability for the acts of persons who provide health care services on behalf of the state, La.R.S. 40:1299.39, to provide that the limitation shall not apply to "all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, including drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services," but not including "nonessential specialty items or devices of convenience." The Act also provides for the creation of a fund for the payment of these expenses, for the effect and means of satisfying a judgment or compromise, including an award of such expenses, and for other related matters. The provisions of the act are expressly made applicable to pending litigation and pending claims. Accordingly, even if plaintiff should fail in his attempts to avoid or invalidate the statutory limitation, plaintiff is at least entitled to an amendment of the judgment awarding medical expenses in accordance with this act.
3. Statutory Construction
Every person who causes damage to another by his fault is obliged to repair the damage. C.C. art. 2315. Every person is responsible, not only for the damage occasioned by his own act, but also for that which is caused by the act of persons for whom he is answerable. C.C. art. 2317. Every person who is a master or employer is answerable for the damage occasioned by his servants and employees in the exercise of the functions in which they are employed. C.C. art. 2320.
In accordance with Civil Code article 2315, our courts have formulated duties of care under the circumstances of individual cases to determine when a hospital's governing body is responsible for its own acts or omissions which cause injury to a patient or other person. See Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). For example, the governing board of a hospital owes a duty to select its employees with reasonable care, Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), a duty to furnish the hospital with reasonably adequate supplies, equipment, appliances and facilities for use in the diagnosis and treatment of patients, Snipes v. So. Baptist Hospital, 243 So.2d 298 (La.App. 4th Cir.1971); Lauro v. Travelers Ins. Co., 261 So.2d 261 (La.App. 4th Cir.1972); Hernandez v. Smith, 552 F.2d 142 (5th Cir.1977); and a duty to provide adequate procedures for the maintenance of safety and sanitation in its grounds and buildings, Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3d Cir.1982); Roark v. St. Paul Fire & Marine Ins. Co., 415 So.2d 295 (La.App. 2d Cir.1982). A breach of one of these duties or a similar duty of care which causes injury to a patient or other person may constitute independent negligence by a hospital's governing board, resulting in the hospital's liability even in the absence of any finding of negligent conduct by an employee.
Conversely, a hospital may be answerable for damage caused by its employees' negligence despite the fact that no negligent act or omission of its governing board is proved. Garlington v. Kingsley, 289 So.2d 88 (La.1974); Charouleau v. Charity Hospital of La., 319 So.2d 464 (La.App. 4th Cir.1975); Albritton v. Bossier City Hosp. Com., 271 So.2d 353 (La. App. 2d Cir.1972); Norton v. Argonaut Ins. Co., 144 So.2d 249 (La.App. 1st Cir. 1962); Ulmer v. Baton Rouge General Hospital, 361 So.2d 1238 (La.App. 1st Cir. 1978); Meynier v. DePaul Hospital, 218 So.2d 98 (La.App. 4th Cir.1969); Suhor v. Medina, 421 So.2d 271 (La.App. 4th Cir. 1982); see also Loescher v. Parr, 324 So.2d 441 (La.1975).
These are the fundamental precepts of tort responsibility in Louisiana with which we must start in determining whether the Legislature intended that the statutory limitation on a malpractice judgment
According to the general popular use of its words, the statute in question, La.R.S. 40:1299.39, is clear in its objects and meaning. The statute's primary purpose appears to be to insure an adequate supply of physicians and other professionals providing medical and related health care services on behalf of the state (1) by prohibiting judgments in excess of $500,000, exclusive of medical expenses, based on such a person's malpractice, and (2) by providing that the state shall pay the judgments and costs of defense associated with alleged medical malpractice committed by such a person while providing health care services on behalf of the state. Protecting the state and its institutions from other types of judgments is not the object of the legislation. The act clearly does not prohibit or affect judgments based on the negligence of anyone except physicians and other professionals providing medical and related health care services.
That the legislative aim was so limited is clear from the careful definition and connection of terms in the statute. The limitation of liability prohibits a statutorily excessive judgment based on malpractice.
In summary, the statute imposes a ceiling of 500,000 dollars on the state's liability for "malpractice," other than liability for medical expenses; provides a procedure for payment of unlimited medical expenses; defines "malpractice" as the torts of "health care providers"; equates "health care providers" with "persons"; defines "person" as an individual acting in a professional capacity to provide health care services; and extends its coverage only where a "health care provider" acts within the scope of his employment, or within his prescribed training if the "health care provider" is a student, resident or intern.
The legislative goal to protect only physicians and other professionals engaged in learning or practicing healing arts or skills is evident from the selection of terms and the obvious alternative choices of words rejected. "Malpractice," "professional," "specialty," "community standard of care," and other terms used to define the protected class commonly refer to natural persons engaged in a learned medical art, the degree of professional skill or learning expected of its members, and derelictions from this standard resulting in injury or death to a patient. If the legislature had intended to protect persons or entities outside this class against unlimited judgments based on grounds other than medical malpractice, it easily could have done so by specifically including within the protected class the State, its institutions, boards, or hospitals, and by prohibiting statutorily excessive judgments against them based on their negligence, strict liability, or other fault. Instead, the statute adheres to the usual meaning of malpractice and the professional class with which it is commonly associated, except that the law restricts its protection and benefit to those physicians and other professional persons who provide medical and related health care services to patients on behalf of the state, rather than in private practice.
The history of antecedent legislation confirms this interpretation. In 1975, the legislature authorized each hospital and agency of the state which employed physicians, dentists, or professional nurses to provide them with medical malpractice insurance at public expense. Acts 1975, Nos. 477, 674. In 1976, Act 66 provided that a person performing health care services for or on behalf of the state would not be obligated to pay damages for his malpractice, but that the state assumed his liability and defense costs. However, Act 660 of 1976 superseded that act by providing that a person providing health care on behalf of the state would not be liable for damages in excess of 500,000 dollars plus interest and costs for any injury or death of a patient due to malpractice, and that any judgment rendered against a health care provider would be paid by the state. By Act 744 of 1977, the legislature provided that the state would not sue a health care provider or his malpractice insurer for reimbursement for damages or defense costs until the judgment in the malpractice action was final. House Concurrent Resolution No. 49 of 1977, however, suspended this provision. In 1978, Act 611 changed the limitation on liability to a prohibition against any judgment in excess of five hundred thousand dollars based on the malpractice of a health care provider and further provided, without mention of reimbursement, that the state would pay damages and defense costs arising from a health care provider's malpractice.
The contrast between the statute in question and the private Medical Malpractice Act, R.S. 40:1299.41 et seq., which affords protection to qualified, generally private, hospitals, physicians, and others providing health care, further confirms our interpretation. Under the Medical Malpractice Act the total amount recoverable for malpractice causing injury or death to a patient, exclusive of medical care and related benefits, shall not exceed five hundred thousand dollars plus interest and cost.
The private malpractice act gives greater protection than that afforded by the state act with respect both to the class protected and the types of judgments affected. By expanding the definition of health care provider to include corporations, facilities, or institutions providing health care as a hospital, and all officers, employees, or agents thereof, the private malpractice act covers an entire hospital, including its governing board and non-professional employees. By defining health care to include any act or omission performed by any health care provider for, to, or on behalf of a patient, the private malpractice act protects against statutorily excessive judgments based not just on malpractice, but on virtually any breach of duty or contract causing injury or damage. The legislature's strategic use of these specific terms to expand the private malpractice act's scope of protection over that of the contemporaneously adopted state act indicates that the omission of such provisions from the latter piece of legislation was intentional and should not be construed as a tacit invitation for judicial gloss. Reinforcing this conclusion is the observation that the private act excepts hospitals from the application of the community or locality standard of care used to judge the conduct of other health care providers.
On original hearing, we concluded that the prohibition of La.R.S. 40:1299.39
After considering the oral arguments and briefs of counsel and studying the statutes in the context of our basic delictual principles, we conclude that our original opinion was in error in these respects for the reasons stated earlier, and the following reasons as well: (1) R.S. 1:13 provides: "Headings to sections, source notes and cross references are given for the purpose of convenient reference and do not constitute part of the law." A heading may suggest an interpretation when the statutory language is unclear. But in this case it is the heading which is ambiguous and the statute that is clear. On examination of the statute, it becomes clear that the term "state services" in the heading can refer only to the services of individual persons acting in a professional capacity to provide health care to patients on behalf of the state.
The court of appeal, 446 So.2d 760, adopted a different view of the statute, reasoning that: (1) The statute must be given a liberal interpretation because of its purpose to insure the availability of state medical services at little or no cost; (2) The list of health care personnel covered in the act, which was expanded recently, is merely illustrative since the statute includes "but is not limited to" the health care professionals named.
In our original opinion we found the court of appeal's reasons unconvincing without stating why. Briefly, the reasons are: First, as we endeavored to explain earlier, the primary object of the statute is to attract and keep individual professionals to provide health care to patients on behalf of the state by affording them protection against malpractice judgments, not to reduce the state's financial burden of public health care. Moreover, the distinction of laws into odious laws and laws entitled to favor, with a view of narrowing or extending
Plaintiff makes clear in his brief on rehearing that he seeks a judgment for all of Sibley's damages against the LSU Board based on its own alleged acts and omissions of administrative negligence. Plaintiff refrains from disputing, without conceding, that the statutory prohibition against a malpractice judgment in excess of 500,000 dollars applies to bar his recovery against the LSU Board over this amount based on its vicarious liability for the medical malpractice of its physicians and other health care personnel. The plaintiff is correct in not disputing the issue. The statute in effect limits the LSU Board's vicarious liability because it prohibits any judgment whatsoever based on the malpractice of physicians or other health care personnel in excess of the statutory limit.
For the reasons assigned, we conclude that, although the statute would apply to bar a judgment for damages in excess of the statutory maximum based on either the malpractice of an individual health care provider or the vicarious liability of the LSU Board as his employer, it does not bar more complete recovery based directly upon the Board's own negligence. Accordingly, since the previous courts pretermitted the issue of the Board's primary or independent liability, and since it appears that there is substantial evidence in the record on this question, we will follow our established procedure in such cases by remanding the case to the court of appeal for its findings of fact and judgment based on the record. Gonzales v. Xerox, 320 So.2d 163 (La.1975).
4. Equal Protection
In our original opinion we upheld the statutory malpractice judgment limitation against an attack based on the guarantee of equal protection. In doing so, we employed the three-level system of scrutiny developed by the United States Supreme Court. Our opinion did not state whether the statutory provision was consistent with our state constitution's declaration of right to individual dignity, as well as being consistent with the Fourteenth Amendment's equal protection clause, or whether this court had elected to use the federal three level system of scrutiny in state constitutional adjudication. We are now called upon to decide these questions.
Upon considering the arguments of the parties, the respective constitutional provisions, our constitutional convention debates, United States Supreme Court decisions, and evaluation and criticism of the three-level system of scrutiny, we conclude that (1) the federal multi-level system is not an appropriate model for interpreting and applying the protection of equal laws pledged by our state constitution; (2) when a law classifying individuals on the basis of physical condition is attacked, the proponent of the legislation must show that the law does not arbitrarily, capriciously, or unreasonably discriminate against the disadvantaged class by demonstrating that the legislative classification substantially furthers a legitimate state objective; (3) the statutory provision prohibiting a malpractice judgment in favor of a severely injured and disabled person in excess of 500,000 dollars classifies individuals based on their physical condition; (4) the LSU Board did not attempt to show that the legislative classification substantially furthered a legitimate state end. However, because this is the first time we have interpreted the constitutional provision with regard to the parties' burdens, in the interest of justice the case will be remanded
A. The Federal Three-Level System Is An Inappropriate Model for Equal Protection Analysis Under the Louisiana Constitution
An important feature of the United States Supreme Court's current equal protection analysis is an elaborate system of judicial review composed of three levels of scrutiny, commonly referred to as strict, intermediate, and minimal scrutiny. This system arose out of the constitutional crisis caused by the Court's clash with the Roosevelt administration and its New Deal legislation. After the collision, the Court's prestige plummeted, and the Court renounced much of its power by adopting a posture of extreme deference to the other branches of government. Governmental actions were presumed to be constitutional, forcing a challenging party to prove the challenged action to be completely unrelated to any legitimate governmental objective. However, to provide adequate protection for express constitutional rights, such as freedom of speech, to protect implicit fundamental rights, such as the right of privacy, or to protect against governmental action based on an invidious suspect classification, such as race or ethnic origin, the Court has retained a more exacting mode of judicial review that requires strict scrutiny of such governmental conduct. Under strict scrutiny, government action is not presumed to be constitutional, and will not be upheld by the Court unless shown to be necessarily related to a compelling state interest. See J. Nowak, R. Rotunda, & J. Young, Handbook on Constitutional Law 524-525 (1978); L. Tribe, American Constitutional Law 1000-02 (1978).
The Warren court brought into focus a "sharp difference" between strict and minimal scrutiny. Scrutiny that was strict in theory turned out to be fatal in practice, while scrutiny that was minimal in theory turned out to be nonexistent in practice. In order to inject some flexibility, the Burger court has formulated yet a third level of judicial review, which operates as an intermediate form of scrutiny. When using intermediate scrutiny, the Court will uphold government conduct if it is substantially related to an important governmental interest. See e.g., Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
The three-level system has been the target of a growing chorus of criticism. A majority of the justices have indicated various degrees of dissatisfaction with the three-tiered approach in both words and actions. In some difficult cases the Court has simply abandoned the system by deciding equal protection questions without its traditional analysis. See e.g., Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Rostker v. Goldberg, 453 U.S. 57; 101 S.Ct. 2646; 69 L.Ed.2d 478 (1981); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758; 65 L.Ed.2d 902 (1980). More subtle departures from the system have occurred when the Court has exercised the degree of scrutiny reserved for a particular level to decide cases logically falling within a different level. In this way the court has on an ad hoc basis carved out exceptions to strict scrutiny,
Commentators have diagnosed several underlying causes for the disorder in the three-level system.
For example, Professor Shaman observes:
We conclude that the federal jurisprudence should not be used as a model for the interpretation or application of that part of the Louisiana Declaration of Rights dealing with individual dignity which is at issue in this case. The federal three level system is in disarray and has failed to provide a theoretically sound framework for constitutional adjudication. Also, as we will endeavor to demonstrate, the state constitution calls for more than minimal scrutiny of certain types of classifications, and assigns the state the burden of showing that such legislation is not arbitrary, capricious or unreasonable.
B. State Equal Protection and Classification
Article I, Section 3 of the 1974 Louisiana Constitution, the Declaration of Right to Individual Dignity, 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."
Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely;
The Declaration of Rights committee of the 1973 Constitutional Convention proposed an article raising the threshold of equal protection by prohibiting discrimination because "of birth, race, age, sex, social origin, physical condition, or political or religious ideas." As explained by the committee spokesman, because the federal courts had failed to afford real or substantial protection by applying the Fourteenth Amendment to legislation based on all of these classifications, the proposed article would require judicial examination when any such classification was challenged and would assign to the State the burden of showing that the classification reasonably furthers a legitimate purpose.
The constitutional convention, in amending the article before its adoption, varied its emphasis but not its fundamental thrust toward greater protection against arbitrary discrimination. First, a major effort to reduce the article's level of protection to that afforded by the Fourteenth Amendment was decisively rejected.
The statutory prohibition against a malpractice judgment in excess of 500,000 dollars classifies individuals because of their physical condition. 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 has 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 damages would not require an award over this amount to make individual reparation. Victims in the former class are prevented from recovering for all their damage, while those in the latter class are allowed full recovery. Damage to the physical condition of each malpractice victim is the primary element
During the convention debates the delegates made clear that among the reasons physical condition was included in the specific categories was to prevent a legislative classification disadvantaging physically handicapped and crippled persons unless it substantially furthered a legitimate state purpose. See proceedings, Aug. 29-30, 1973, pp. 1017, 1021 and 1029. Catastrophically injured persons such as Jane Sibley are physically handicapped and crippled persons disadvantaged by the statutory classification at issue in this case; they are at least as handicapped, crippled, helpless and in need of the protection of equal laws classifying persons because of physical condition as the persons whom the delegates contemplated in drafting the constitution.
Jane Sibley clearly fits within the class of individuals disadvantaged by the statutory classification. Accordingly, the state or the LSU Board is obliged to show that there is a good reason for the statutory classification, that is, that the legislative classification substantially furthers a legitimate state purpose.
The LSU Board did not make such a showing in the record presented for our review. However, because this is the first case in which we have explored in depth the state constitution's pledge of the protection of equal laws, we will not penalize the defendant for its failure to anticipate our interpretation — although the convention debates clearly reflect the framers' intention. Instead, in the event the case must be remanded to the trial court, it will be instructed to decide whether the statute is constitutional after permitting the parties to introduce evidence and to argue the question.
5. Sovereign Immunity
Plaintiff argued that the statutory restriction on a medical malpractice judgment was invalid because it conflicted with the constitutional prohibition of state immunity from suit or liability for personal injury. La. Const. 1974, art. 12 § 10(A). At the time this case was briefed and argued there was a discrepancy between the treatment of medical expenses under the statute affecting health care providers acting on behalf of the state, La.R.S. 40:1299.39, and that under the private statute affecting qualified health care providers, La.R.S. 40:1299.41. The judgment ceiling of the former statute, which is at issue in the present case, formerly applied to medical expenses as well as to other damages, whereas the judgment limitation of the private statute did not apply to medical expenses. Accordingly, plaintiff argued that cloaking the state with immunity from liability for medical torts above 500,000 dollars, when private tortfeasors were exposed to unlimited liability for medical costs, violated the prohibition of state immunity. After this case was submitted for decision, this statute was amended retroactively to exempt medical expenses from the limitation on general malpractice damages, thus removing the cause for plaintiff's complaint. 1985 La. Acts, No. 239. Because we do not understand plaintiff's argument to be based on any other ground, this contention is now moot.
The judgment of the trial court is affirmed insofar as it finds the LSU Board liable for the malpractice of its health care providers, and insofar as it awards costs to plaintiff. The court of appeal judgment is vacated, and the case is remanded to the court of appeal with instructions to award plaintiff medical expenses in accord with Act No. 239 of 1985 and, consistent with this opinion, to determine from the record (1) the damages Sibley suffered other than medical expenses, and (2) whether the LSU Board is directly and independently liable for Sibley's injury and disability, and to render judgment accordingly. In the event the court of appeal determines that the LSU Board is not directly or independently
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
CALOGERO, J., concurs in part and dissents in part with reasons.
BLANCHE, J., dissents and assigns reasons.
WATSON, J., concurs in part and dissents in part and assigns reasons.
MARCUS, J., dissents and assigns reasons.
WATSON, Justice, concurring in part and dissenting in part.
The majority opinion allows plaintiff to attempt proof of any independent negligence on the part of the Board, as distinguished from negligence on the part of individuals providing health care services; and forces the state to justify legislative acts which allegedly discriminate. With the first result I agree; from the second, I vigorously dissent.
The majority opinion does a thorough analysis of the statutory provisions relating to the state hospital boards and their employees. For the reasons stated by the majority, I agree that the doctors and others employed in the state hospitals are protected by the statutory limitations but the state hospital boards are not if their independent negligence can be proved.
On the equal protection issue, I dissented in the original opinion. My principal concern was that the injured person could not recover full medical expenses, while others injured in private malpractice situations could do so. The denial of equal protection was obvious. However, that situation has been rectified by Act No. 239 of 1985. All victims of malpractice can now have full recovery of necessary medical expenses. The equal protection problem has been solved.
There is no need to adopt the majority's equal protection analysis which blatantly expands judicial authority in derogation of legislative power. The federal three tier analysis is abandoned, implying an invalidation of the Medical Malpractice Act, or, at a minimum, requiring that the question be relitigated. The newly discovered requirement that the state justify its legislation in court is an unwarranted invasion of matters best left to resolution in the halls of the legislature.
I respectfully dissent from the conclusion of the majority on the equal protection issue and from the remand to take evidence; I concur as to the Board's possible negligence.
CALOGERO, Justice, dissenting in part, concurring in part.
I dissent from that portion of the majority opinion which remands this case to the Court of Appeal for a determination of the independent negligence of the LSU Board of Supervisors. However, I concur in that portion of the opinion which effectively defers our finally determining whether La. Rev.Stat.Ann. § 40:1299.39 (West Supp. 1985) is unconstitutional because in violation of the Louisiana Constitution's equal protection clause.
Independent Board Negligence
Despite the majority's able analysis by which it concludes that under § 40:1299.39 there is no cap placed on liability of the state based upon the state's own negligence, as opposed to the state's vicarious liability for torts of the medical professionals in its employ, I see no reason to perpetuate this case (by remanding it to the court of appeal) for a determination of direct and independent liability on the part of the LSU Board of Supervisors for Miss Sibley's injuries.
First, I point out that I have not been able to find in the record or briefs any
The fact of the matter is, I am not even sure how the primary negligence of the state became a focal point in this case. I surmise that it is the natural progression of the argument by the plaintiff's able attorney that some sort of "corporate negligence," similar to that devised by the courts to impose liability on a hospital notwithstanding the existence of the charitable immunity doctrine, could be applied to the LSU Board of Supervisors to sidestep the partial immunity created by § 40:1299.39. The charitable immunity doctrine, designed to protect the funds of non-profit hospitals and other charitable institutions from tort claims, had been sanctioned by this Court since the early 1900's. However, in response, at least in part, to the criticism directed at the doctrine that neither the courts nor organizers of charities have the authority to put charities beyond the pale of the law applicable to all, and that the protection of life and limb is superior to property interests of charities, this Court, in Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), espoused the concept of "corporate negligence." "Corporate negligence" provided an exception to a hospital's insulation from liability for negligent acts committed within its walls if the hospital itself was found to be negligent, as in the selection of staff or in the performance of its administrative acts. Although the concept of "corporate negligence" has fallen into disuse since the doctrine of charitable immunity, which had fostered the exception, was abolished in 1974 in Garlington v. Kingsley, 289 So.2d 88 (La.1974), plaintiff's counsel would have us resurrect it to impose liability on the LSU Board of Supervisors. If the theory of "corporate negligence" is to be applied, it seems clear that it is the independent negligence of the LSU Medical Center or its administrators, in Shreveport, and not of the more remote LSU Board of Supervisors, that would be under consideration. And there is no indication that there is a corporate body or political subdivision capable of suing and being sued which operates the LSU Medical Center in Shreveport. The directing staff of the Medical Center is more than likely composed of medical professionals, who are covered by the acts and for whose tortious conduct the act limits recoverable damages for the LSU Board's vicarious liability. In all events it is only the LSU Board of Supervisors which has been sued here.
Louisiana Constitution's Equal Protection Clause
I concur, however, in the majority's treatment of the equal protection issue. Notwithstanding our decree in the original opinion, which asserted that the provisions of La.Rev.Stat.Ann. § 40:1299.39 do not violate the equal protection clause of the state, or federal, constitutions, the fact of the matter is that our exclusive attention in that original opinion was directed to the federal equal protection clause. U.S. Const. amend. XIV, § 1. In that opinion, there was an underlying assumption that the state's equal protection clause was
Because of the possibility that § 40:1299.39 may be constitutionally infirm under Article I, Section 3 of the 1974 Louisiana Constitution, while passing muster under the appropriate standards as applied to the federal equal protection clause by the United States Supreme Court, I endorse the majority's decision to defer the Court's final determination concerning whether § 40:1299.39 is constitutional. Although this Court is the final arbiter of whether any act offends the prevailing Louisiana Constitution of 1974 I believe that a remand, to hear both evidence and legal arguments as directed by the majority, is appropriate where these important matters were not addressed specifically in the district court's original hearing, and decision.
The majority remands to the Court of Appeal to determine if Miss Sibley's damages, other than those for medical expenses, exceed $500,000. If the damages are found to be in excess of the cap established in § 40:1299.39, it is appropriate, as the majority finds, for the Court of Appeal in turn to remand the matter to the trial court to determine, with the benefit of an evidentiary hearing, whether the statute discriminates "arbitrarily, capriciously, or unreasonably" against Miss Sibley (and others like her) because of her "physical condition." La. Const. art. I, § 3. In so determining, the trial court must consider the state's purpose in enacting this legislation. To comply with the state's guarantee of equal protection in the Constitution of 1974, this classification (of seriously injured medical malpractice victims who are not entitled to full recovery for their damages) must be found to reasonably further a legitimate state purpose.
MARCUS, Justice (dissenting).
I dissent from the remand of this case to the court of appeal for a determination of the independent negligence of the LSU Board of Supervisors. I also dissent from the majority's equal protection analysis. In this respect, I agree with the remarks of Justice Watson in his dissenting opinion.
BLANCHE, Justice (dissenting).
This writer supports the original opinion in this matter holding that the Medical Malpractice Act (La.R.S. 40:1299.39 et seq., hereinafter referred to as the "Act.") is applicable to the State of Louisiana and its agencies, and that the provisions of the Act do not unconstitutionally violate either the equal protection or the due process clause of the state or federal constitutions, nor Article XII, Section 10 of the Louisiana Constitution of 1974, the provision on soveriegn immunity.
On rehearing, the majority in finding that the $500,000 cap on liability accorded under the Act does not inure to the benefit of the state or its agencies for their independent acts of negligence (as opposed to their vicarios liability for the acts of their physician-employees) makes an analysis of the legislative intent in enacting the statute, and finds that the State of Louisiana or its agencies were not the type of "health care providers" that the legislature had in
It would seem that since the majority accorded plaintiff relief under the guise of statutory interpretation, it was not necessary to reach the constitutional question of equal protection. As stated in State v. Stripling, 354 So.2d 1297 (La.1978), "[c]ourts are directed by a long line of decisions, both federal and state, and by a general propositions applicable to constitutional government, not to pass upon the constitutionality of an act of the legislature if the case can properly be decided on another ground." It was necessary in our original opinion to address the constitutional issues, and because I find the Act applicable to both the state and its agencies, I am compelled to address the constitutional issues.
Besides what this writer believes is a premature consideration by this Court of the constitutional issues, the majority further compounds the error by abrogating many years of considered jurisprudence, which developed the three-level analysis, in the equal protection area, see Acorn v. City of New Orleans, 377 So.2d 1206 (La. 1979); Succession of Brown, 388 So.2d 1151 (La.1980), and Lovell v. Lovell, 378 So.2d 418 (La.1979); Everett v. Goldman, 359 So.2d 1256 (La.1978); instead, opting for a uniform standard of judicial review which all legislation is to be judged under (a substantial furtherance of a legitimate "state purpose" test).
Additionally, the majority finds that Article 1, Section 3 of the Louisiana Constitution of 1974, dealing with individual dignity, commands that this Court apply a more rigorous test than the "rational relationship" test. This writer is of the opinion that the Louisiana Constitution does not nor was it intended to provide greater protections in the area of equal protection than those accorded under the federal constitution. Article 1, Section 3 provides in part;
For the reasons set forth in our original opinion, and for the following reasons, this writer is of the opinion that this Article mandates that the Act be judged under the "rational relationship" test.
First, it should be noted that the victim's right to full tort recovery is not fundamental. Additionally, the victim is not a member of a suspect class. Lastly, the victim does not fall within the "mean scrutiny" test accorded to constitutionally protected rights less than fundemental. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Therefore, for the victim to be accorded a higher level of scrutiny, such must arise from the language of Article 1, Section 3. Under the expressed language of the Article, the terms used are synonimous with the term irrational, or lacking a rational basis. The majority's delving into the constitutional debates is clearly unwarranted in light of the clear text of our constitution. Hebbler v. New Orleans Fire Dept., 310 So.2d 113 (La.1975).
Applying the "rational relationship" test to the Act, this writer believes that the limitation of liability on state medical malpractice claims is reasonably related to the legitimate state interest of assuring the availability of affordable public health care to the citizens of this state.
Finally, while not agreeing with the majority's statement of the level of judicial review, it should be observed that the majority incorrectly remands this case for an evidentiary hearing and briefing on the equal protection issue. In so doing, the majority places the burden of proof on the state; requiring it to prove that the Act is substantially related to a legitimate state purpose. Even assuming that the majority's
For the reasons stated above, I respectfully dissent. The effect of the majority opinion is that any time the legislature enacts a law to address a particular problem that it determines exists, this Court, years later will address the wisdom of the law based upon an alleged allievation of the past problem. This is not the function of this Court. White Systems of New Orleans v. Hall, 219 La. 440, 53 So.2d 227 (1951).
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