This case was previously before the court. Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir. 3/9/05), 897 So.2d 911. The sole issue raised in that appeal was the same issue raised in its companion case, Taylor v. Clement, 04-1069 (La.App. 3 Cir. 3/9/05), 897 So.2d 909. At that time, we applied to the Supreme Court of Louisiana for instructions on the following question of law arising in both proceedings:
Taylor, 897 So.2d at 911.
The Louisiana Supreme Court denied our request for certification. Arrington v. ER Physicians Group, APMC, 05-1059 (La.6/17/05), 904 So.2d 708, Taylor v. Clement, 05-1057 (La.6/17/05), 904 So.2d 708, and remanded the cases so that we could consider the plaintiffs' appeals.
The plaintiffs herein, Susan, Joelle and Laura Arrington, appeal a judgment of the trial court denying their motion for summary judgment seeking to have the limitations on recovery for damages imposed by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq, declared unconstitutional
The proceedings which led up to this appeal are detailed by the trial judge in his written reasons for judgment:
The trial judge, after considering the issues raised by the plaintiffs, the counter-arguments of the defendants, and the law and jurisprudence, and even though finding the plaintiffs lacked an adequate remedy, upheld the constitutionality of "the cap" and issued judgment accordingly. This appeal followed.
LAW AND DISCUSSION
The sole issue raised in this appeal is the same issue raised in Taylor v. Clement, 04-1069 (La.App. 3 Cir. 3/9/05), 897 So.2d 909, certification denied, 05-1057 (La.6/17/05), 904 So.2d 708, also decided this day, Taylor v. Clement, 04-1069 (La. App. 3 Cir. 9/27/06), 940 So.2d 796, i.e., the constitutionality of the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq.
LAW AND DISCUSSION
As we undertake our consideration of the issue, we are reminded of the thoughts of one of our most revered civilian scholars, the late Justice Albert Tate, Jr., upon whom C.A. Marvin relied in a recent law review article:
C.A. Marvin, Dissents in Louisiana: Civility Among Civilians?, 58 La.L.Rev. 975, 977 (1998) (footnote omitted) (alteration in original).
In his Written Reasons For Judgment, the learned trial judge stated:
The Louisiana Supreme Court has stated that the Louisiana Medical Malpractice Act must be strictly construed because it grants advantages to special classes in derogation of some rights available to tort victims. In Kelty v. Brumfield, 93-1142, pp. 8-9 (La.2/25/94), 633 So.2d 1210, 1216, the supreme court explained:
In Twenty-First Judicial District Court v. State, Through Guste, 563 So.2d 1185, 1188-89 (La.App. 1 Cir.), writs denied, 568 So.2d 1082, 568 So.2d 1088 (La.1990) the court explained the law applicable to the attack of the constitutionality of a statute as follows:
A review of the record shows that the plaintiffs in the matter before us carried their burden of proving that the cap contained in the Louisiana Medical Malpractice Act violates La. Const. art. 1, § 22, which assures our citizens of an adequate
Both of these acts contain the same cap provision. Further, in Engles v. City of New Orleans, 03-692, p. 16 (La.App. 4 Cir. 2/25/04), 872 So.2d 1166, 1178, writs denied, 04-1432 (La.9/24/04), 882 So.2d 1141, 04-2654 (La.1/7/05), 891 So.2d 697, the fourth circuit stated:
In the case sub judice, the plaintiffs argue that the Louisiana Medical Malpractice Act cap provision violates a number of provisions of the Louisiana Constitution of 1974:(1) the "due process" and "adequate remedy" provisions of La. Const. art. 1, § 22; (2) the "separation of powers" provision of La. Const. art. 2, § 2; (3) the provisions of La. Const. art. 3, §§ 2 and 12, in that it is a "special law" granting privileges and immunities and changes the method of collecting debts and enforcing judgments; and (4) the provisions of La. Const. art. 5, § 16, in that no amendment to the constitution was ever adopted changing the original jurisdiction of the district courts. Inasmuch as we find merit to the plaintiffs' "adequate remedy" argument, we pretermit discussion of all other arguments.
Louisiana Constitution Article 1, § 22 provides as follows: "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."
The decedent in the case sub judice, Billy Arrington, was born on May 5, 1951. He died on October 28, 1994, at the age of forty-three. Mr. Arrington left behind a wife and two minor children whose lives were severely impacted by his untimely death. The Arrington household's income went from $29,137.00 in 1993 to $9,344.00 in 1995. In 1993, Mr. Arrington earned $20,089.27, working in the dairy department of a Lake Charles supermarket. In the four years before his death, he also sold insurance on a part-time basis. During those four years, his average income from his insurance business was $1,367.00 per year. Thus, not even considering the probability of yearly increases in income, Mr. Arrington's death represented an economic loss to his family of over $470,000.00. All damages, including economic loss, are included in the cap imposed by the MAA and the MLSSA.
The trial judge found that because of the depreciation of the dollar, the $500,000.00
This court does not stand alone in finding the state's cap on medical malpractice damages unconstitutional. As the trial judge pointed out in his reasons for judgment, courts in other states have take similar stances:
See also, In Re Knowles v. U.S., 544 N.W.2d 183 (S.D.1996). In Knowles the court commented:
Knowles, 544 N.W.2d at 186.
Accordingly for the reasons stated above, the judgment of the trial court is reversed and set aside. Judgment is entered in favor of the plaintiffs, Susan, Joelle and Laura Arrington, granting their motion for summary judgment and finding the $500,000.00 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an "adequate remedy" as guaranteed under the provisions of La. Const. art. 1, § 22. The case is remanded to the trial court for the consideration of what constitutes adequate damages in this case. All costs of this appeal are assessed against defendant, Galen-Med, Inc.
EZELL, Judge, concurs with written reasons.
COOKS, Judge, dissents with written reasons.
DECUIR, Judge, dissents for reasons assigned by COOKS, Judge.
EZELL, J. Concurring.
I concur with Judge Pickett's opinion but would find that the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., is unconstitutional on other grounds as well. Equal Protection is not afforded those who have injuries that exceed the damages cap. The statute creates classes of victims that are not equally compensated for their damages. Those who have damages that fall within the cap are compensated completely. Those who have damages that exceed the cap are not completely compensated, thus creating one of many sub-classes of claimants.
The purpose stated by the legislature for the enactment of this statute was to reduce or hold the line on increases in insurance premiums and rising health care cost in our state. If this was the goal, the legislature has failed to achieve this goal. The best way to deal with the problem of increasing insurance premiums is to correct the acts that cause the negligent acts. We should not shield negligent health care providers from their negligent acts. Capping damages diminishes the deterrent effect of tort law.
In reviewing the record, the statute being attacked as unconstitutional I can find no rational basis for the enactment of this statute other than the protection of a very limited segment of society at the expense of the most grievously injured claimant. The most affected group of claimants are young people. This is due to the fact that they will endure these injuries for a substantial portion of their lives. We recognize the fact that the legislature can regulate our economy, but it is not right to shift the economic burden of medical malpractice from insurance companies and negligent health care providers to a small group of injured patients.
There is no recovery set forth in the statute for provable economic damages which are allowed in every tort action other than one filed under this statute. Here again a young claimant is asked to carry the load for the insurance and negligent health care provider, in that, they will not receive what they are due if they have provable economic damages that exceed the cap. This case is an example of this injustice.
There is a false assertion that the tort system is "broken" or in need of repair. If we assume that this assertion is right, the cap imposed to fix the system is at the expense of those most seriously injured. This is neither fair nor equitable.
I can find no rational relationship existing between the classification of victims in the $500,000 cap on non-economic damages and the legislative objective of compensating victims of medical malpractice fairly. Another objective of the legislature, as we previously stated, was to lower malpractice insurance premiums. The facts as presented in this case, clearly show that the cap adopted by the legislature is arbitrary and unreasonable in that it has no relationship to the lowering of medial malpractice insurance premiums. If there was a crisis when the legislation was passed, which has not been shown by the State, that alone would not render the law valid forever.
I agree with those courts that have found that there is little, if any, correlation between caps on non-economic damages and the redirecting of medical malpractice premiums or overall health care costs. The evidence of studies done in reference to the malpractice caps, which are part of
Studies reviewing the facts of practicing defensive medicine simply show that it is very hard to measure that cost and even harder to measure when trying to determine the effect it would have on insurance premiums. I recognize that it is well-settled law that courts should presuppose that the legislative judgment is sound and try to support the legislative act. This act is so flawed with speculation and void of any quid pro quo that I have difficulty finding a connection between the means and ends.
I cannot find any objective basis for the enactment of this legislation.
COOKS, J., dissenting.
I respectfully dissent from the majority opinion for several reasons. The majority, apparently searching for a legal basis on which to rest its decision, recites language in a law review article written by the late Louisiana Second Circuit Judge C.A. Marvin quoting the late Louisiana Supreme Court Justice Albert Tate. Judge Marvin's article is befittingly entitled: Dissents in Louisiana: Civility Among Civilians? The article discusses the thoughts of legal scholars on the value of dissenting opinions, the importance of judicial civility, and provides very entertaining examples of dissents authored by Louisiana jurists. I wondered for a time just how the majority happened upon the article in researching the issues in this case. At last, near the end of the article, Judge Marvin, as an examples of a "highly critical dissent" referenced Louisiana Supreme Court Justice Dennis' dissent 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, 124 L.Ed.2d 249 (1993), and noted the following use of maritime metaphors by the Justice to characterize the majority's analysis upholding the constitutionality of the MMA's $500,000 cap:
Id. at 525-526, 528.
It appears the majority in this case may well have, with the same look and nod in passing, "fouled up their navigation" by failing to mention Art. I, § 3, and totally avoiding any discussion of the level of scrutiny applicable in determining the constitutionality of a legislative enactment. Reliance on Justice Tate's views, that judge's in Louisiana are freer to use creative analogies in interpreting anew legislative concepts, and are "less bound by precedent when deciding an issue of constitutional . . . law,"
The fact is judges are not free to devise new rules of interpretation to avoid existing legislation and judicial precedent upholding the validity of statutes. In the area of constitutional law, the Louisiana Supreme Court has stated "[l]egislative enactments are clothed with the presumption of constitutionality and regularity . . . [and][t]his presumption continues until the party challenging the act's constitutionality establishes that it contravenes some provision of the state or federal constitution." Everett v. Goldman, 359 So.2d 1256, 1270 (La.1978); Johnson v. Welsh, 334 So.2d 395 (La.1976); Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1968). In the interest of "doing the right thing," we simply
In this case, the Plaintiffs challenged the constitutionality of the Medical Malpractice Act's $500,000 cap found in La.R.S. 40:1299.42(B)(1) alleging, as the majority opinion correct states, that the cap "violates a number of provisions of the Louisiana Constitution of 1974:(1) the `due process' and `adequate remedy' provisions of the La. Const. Art. 1, § 22; (2) the `separation of powers' provisions of La. Const. art 2, § 2; (3) the provision of La. Const. Art. 3, §§ 2 and 12, in that it is a `special law' granting privileges and immunities and changes the method of collecting debts and enforcing judgment; and (4) the provisions of La. Const. Art 5, § 16, in that no amendment to the constitution was ever adopted changing the original jurisdiction of the district courts." Plaintiffs also alleged in their Fifth Amending and Supplemental Petition, under the Louisiana Constitution of 1974, the MMA's cap violates the "right to equal protection, and other rights therein guaranteed."
The majority does not support its decision on any of the constitutional provisions relied upon by Plaintiffs except one Art. I, § 22's "adequate remedy" limitation. Generally, an adequate tort remedy in Louisiana includes an award not only for the medical expenses arising from the injury, but also a reasonable dollar amount for the injury itself, including any injury to the victim's non-pecuniary interests. The majority apparently concludes that Art. I, § 22's specific guarantee of "an adequate remedy" prevents a court from validating as constitutional any legislation which provides less than an adequate remedy for tort injuries. I agree with the majority that Art. I, § 22 specifically limits the legislature's power to enact laws which infringe on "every person['s]" right to "have an adequate remedy . . . for injury to him in his person. . . ." I also agree with the majority's conclusion that Plaintiffs presented sufficient expert evidence in this case to prove that the devaluation of the dollar over the passage of time coupled with other economic factors make the current MMA's $500,000 cap, exclusive of medical expenses, in today's market wantonly inadequate as a remedy for all damages sustained by catastrophically or severely injured medical malpractice victims, which damages include loss of wages and diminished earning capacity. But this finding alone by the majority, without any further analysis, does not support its sweeping conclusion that the MMA's cap on medical malpractice damages is per se unconstitutional because it fails to provide an adequate remedy to Plaintiffs. The Louisiana legislature has acted in other areas of the law to limit recovery of damages to all victims within a class, such as workers' compensation, and in some cases, to provide the State's tort liability shall not exceed $500,000. Further, in some instances a Plaintiff's right to recover damages at all is barred by legislative grants of immunity from suit. See La.R.S. 9:2795. Employing a pure "adequacy" test, stripped of any consideration as to whether such legislation serves a legitimate public interest, seriously threatens the legislature's sometimes competing but equally protected power to enact laws in furtherance of the common good vested in it by the same Louisiana Constitution that protects Plaintiffs' right to an adequate remedy.
This also is not the first time that the courts of this state have considered the limitations found in Art. I, § 22 in determining the merits of an attack on the constitutionality of the MMA's cap. Art. I, § 22 provides:
In Everett, 359 So.2d 1256, Justice Calogero, writing for the supreme court's majority, recognized that Art. I, § 22 "like the fourteenth amendment to the United States Constitution, protects fundamental interest to a greater extent than interests that are not considered of fundamental
Id. at 526.
The State is allowed to discriminate against individuals by denying them an "adequate remedy" or any remedy for that matter under certain circumstances. Thus, the courts have said the State need only articulate a rational basis for limiting the damages recoverable by all medical malpractice victims. Perhaps this explains why the courts of this State heretofore have not been willing to strike down the MMA's and the MLSSA's $500,000 statutory cap based on Art 1, § 22's access to the court, due process, and adequate remedy guarantees. Sibley I, Sibley v. Board of Sup'rs of Louisiana, 462 So.2d 149 (La. 1985); Everett, 359 So.2d 1256; Armand v. State, 00-1457 (La.App. 1 Cir. 6/21/02), 822 So.2d 671, writ denied, 02-2036 (La.11/1/02), 828 So.2d 583; Ruiz v. Oniate, 00-2105 (La.App. 4 Cir. 12/27/01), 806 So.2d 81; LaMark v. NME Hospitals, Inc. 542 So.2d 753 (La.App. 4 Cir.1989), writ denied, 551 So.2d 1334 (La.1989).
Therefore, I believe the most serious challenge to the constitutionality of the Act's monetary limitation is based on the equal protection right guaranteed under Art. I, § 3, as applied to catastrophically or severely injured victims of medical malpractice. Art. I, § 3 declares:
When the State provides an "adequate remedy" to some members of a class of victims but denies an "adequate remedy" to other members of the same class because of their physical condition, attributes, political ideas or affiliation, the State's burden to show justification for such discrimination is heightened. Legislation that allows some medical malpractice victims to receive full recovery for the injuries they sustained; but limits the recovery of other malpractice victims whose injuries exceed $500,000 clearly denies the latter group equal protection of the law. The Louisiana Supreme Court made clear in Sibley, 477 So.2d 1094 (on rehearing), as it attempted to do earlier in Everett,
In reviewing the discussions of the Declaration of Rights committee of the 1973 Constitutional Convention, Judge Dennis writing for the Sibley II majority found the committee proposed adoption of "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.'" Id. at 1108. Thus, the Sibley II majority held "Article I, Section 3 commands the court to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious belief, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocates of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever the member of a disadvantaged class shows that it does not suitably further any appropriate state interest." Id. at 1103. (Emphasis added.)
In Sibley II, the Louisiana Supreme Court held that the Act's limitation in operation "classifies individuals because of their physical condition." The court further explained:
Id. at 1108-1109.
Moreover, not only does the MMA's cap discriminate between victims in the same class, it also creates subclasses of catastrophically or severely injured victims of malpractice by limiting recovery to one award of $500,000. The subclasses are created depending on whether the catastrophically or severely injured patient has a spouse, minor children or parent. For example, as recognized in Ferdon v. Wisconsin
The State offered no evidence in this case, as in the cases prior, to refute that the Act's limitation of recovery discriminates against catastrophically or severely injured medical malpractice victims because of their physical condition. The State simply argues in 1992 it met the constitutional burden Art. I, § 3 placed upon it in the Butler case by showing that this discrimination was not arbitrary, capricious and unreasonable and furthers an appropriate State purpose. The State insists that the holding in Butler controls our disposition of the equal protection issue raised in this case and we are obliged to follow it without further inquiry. I do not share the State's confidence that the supreme court holding nearly thirteen years ago in Butler, based on the facts existing at that time, forever precludes us from revisiting the constitutional issue in this case based on the present facts. As the Wisconsin Supreme Court in Ferdon, 284 Wis.2d 573, 701 N.W.2d 440, 448, recognized:
Plaintiffs in this case contend the continued application of the Act's cap, which undeniably discriminates against catastrophically and severely injured victims of medical malpractice, is unconstitutional because the evidence overwhelmingly shows today that the legislative purpose for the discrimination is no longer being furthered and the State has failed to show that the original purpose for the Act's adoption will be undermined by affording a more equitable remedy to these victims. They also contend the benefits analysis employed by the court in Butler is flawed.
The Butler court concluded the Act's $500,000 limitation provided three benefits to the severely injured medical malpractice victim which serves as a quid pro quo: a reasonable alternative remedy to offset the Act's discriminatory classification which prevents this group from receiving full recovery. Justice Watson, writing for the majority, held:
Butler, 607 So.2d at 521.
Plaintiffs have presented empirical evidence, which has not been refuted by the State, to attack the "reasonable alternative remedy" analysis relied upon by the Butler court in finding the cap constitutional. In Butler, the first benefit the court recognized was that the MMA insures a greater likelihood that the offending physician or other healthcare provider has malpractice insurance. To counter this finding, Plaintiffs submitted an affidavit by Dr. Michael Kurth, an economic expert, who attested that: "There is no evidence that the caps on medical malpractice lawsuits translate into lower malpractice insurance premiums." The expert further stated that "[m]alpractice rates are more affected by the number of malpractice claims per physician in a state and the median payment on those claims, than by a few large awards." Plaintiffs also cite excerpts from the report of the Congressional Budget Office, Government Accounting Office, released October 1992, stating that malpractice liability reform would have little or no effect on health care costs because malpractice liability insurance premiums amount to less than one percent (1%) of total health care costs in the U.S. As recognized by the court in Ferdon, 284 Wis.2d 573, 701 N.W.2d 440, 471 studies by the U.S. General Accounting Office also "have concluded that a number of factors go into whether medical malpractice premiums increase or decrease and that there is no definitive correlation between caps on noneconomic damages and lower medical malpractice premium rates." "Indeed, according to a General Accounting Office report, differences in both premiums and claims payments are affected by multiple factors in addition to damage caps, including state premium rate regulation, level of competition among insurers, and interest rates and income returns that affect insurers' returns. Thus, the General Accounting Office concluded it could not determine the extent to which differences among states in premium rates and claims payments were attributable to damage caps or to additional factors. For example, Minnesota which has no caps on damages, has relatively low growth in premium rates and claim payments." Id. at 472, 701 N.W.2d 440. The U.S. Department of Health and Human Services found most victims of malpractice do not file a claim. In fact, only 1.53% of those who are injured even file a claim. There is nothing in the record before us to suggest Louisiana victims of malpractice are more litigious than the national average.
Second, the Butler majority expressed that the cap provided greater assurance of collection from a solvent fund. The PCF argues allowing the Plaintiffs an award in excess of the $500,000 limitation: (1) Would expose the healthcare provider to potentially unlimited financial liability, thereby fueling increased liability insurance costs, increased medical care costs, and a return to a medical care crisis sought to be avoided by the Act initially; (2) would erode the protection afforded health care providers by participation in the PCF, thereby encouraging providers to cease participation and ending the substantial benefits afforded by the Act—primarily, assurance of recovery against a solvent fund; and, (3) would encourage a system of recovery that, to its logical conclusion disfavors settlement with health care providers, because settlement forecloses potential full recovery—a position contrary to the public policy of this State that settlements are favored. Other than these foreboding and conclusionary statements, the PCF provided no evidence, expert or otherwise, to show that allowing a more equitable recovery by Louisiana victims of catastrophic injury in medical malpractice
Plaintiffs claim there are several ways to remedy the grave disparity in the treatment of severely injured victims that do not necessarily require abandonment of the cap on damages. They suggest devising a more equitable remedy for plaintiffs will not necessarily require an increase in the amount the Fund is currently obligated to pay nor will such relief threaten the solvency of the Fund. They point out that most health care providers in this State already pay premiums for $1,000,000 coverage, and Galen-Med, the provider in this case, maintained a $10,000,000 policy. They further contend simply excluding loss of wages (economic loss) from the cap's limitation and increasing the providers contribution for this small class of plaintiffs will substantially remedy the disparity in most cases with only a nominal, if any, increase in premiums.
It is worth noting that economic losses, unlike awards for pain and suffering, are definable and not subject to the jury's discretion. Insurers, and so too physicians,
The third benefit highlighted by the Butler majority was that the MMA guarantees payment of all medical care and related benefits. The Plaintiffs suggest allowing them to recover damages in parity with all other malpractice victims will not automatically impact or increase the PCF's statutory obligation to pay future medical and related expenses to malpractice victims. The PCF has paid the maximum amount it is required to pay to these Plaintiffs; and, they are not demanding more from it. Mr. Arrington died as a result of his injuries. Neither he nor any of his family members will receive any "medical or related benefits" from the PCF to offset the cap's $500,000 limitation.
Additionally, the Plaintiffs argue a catastrophically injured victim is severely disadvantaged, even after judgment, because the PCF Oversight Board requires these victims ofttimes, to continually re-litigate a claim for much needed future medical care. See Maraist v. Alton Ochsner Medical Foundation, 02-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815; Manning v. United Medical Corporation of New Orleans, 04-0310 (La.App. 4 Cir. 3/2/05), 897 So.2d 867. Thus is a result, they contend, that was never intended by the statute. See Bartee v. Children's Clinic of Southwest Louisiana, et al., 05-583 (La.App. 3 Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La.3/24/06), 925 So.2d 1230; Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210.
Further, the Plaintiffs argue the PCF has assumed a status as a de facto party-litigant, which result was again never intended by the statute. Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365; Conner v. Stelly, 02-0280 (La.1/30/02), 807 So.2d 827.
As it stands today, the record does not contain any evidence tending to show that fashioning a more equitable and nondiscriminatory remedy for catastrophically and severely injured victims will undermine the public purpose for the Act's adoption recognized by the supreme court in Butler; nor does the evidence suggest that a more equitable remedy will cause the State to revisit the perceived health care crisis which served as the impetus for the legislature's enactment of the MMA's limitation.
The supreme court in Sibley II clearly holds "when a statute classifies persons on