Arrington v. Er Physician Grp., Inc.

• Decision Date: 06 February 2013
• Docket Number: No. 12–995.,12–995.
• Parties: Susan ARRINGTON, etc. v. ER PHYSICIAN GROUP, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

110 So.3d 193

Susan ARRINGTON, etc.
v.
ER PHYSICIAN GROUP, INC., et al.

No. 12–995.

Court of Appeal of Louisiana,
Third Circuit.

Feb. 6, 2013.

Stephen M. Pizzo, Metairie, LA, for Defendant/Appellee, Galen–Med, Inc.

J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defendants/Appellees, State of Louisiana, Galen–Med, Inc.

Nadia de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P., Lafayette, LA, for Intervenor/Appellee,

[110 So.3d 194]

Louisiana Patient's Compensation Fund.

Oliver Jackson Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiffs/Appellants, Susan Arrington, Laura Jo Arrington, Joelle Lorene Arrington, Sharon Taylor, Charles Taylor, Jr.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.

AMY, Judge.

[3 Cir. 1]The plaintiffs in these consolidated cases question whether the trial court correctly resolved their claims regarding the constitutionality of La.R.S. 40:1299.42(B) upon remand by the Louisiana Supreme Court. See Arrington v. Galen–Med, Inc., 12–0908 (La.5/22/12), 89 So.3d 1159. For the following reasons, we affirm. We further deny the plaintiffs' motion for en banc consideration of the appeals.

Factual and Procedural Background

These medical malpractice matters have a lengthy procedural history and have previously been considered by this court as well as the Louisiana Supreme Court for consideration of various issues. See, e.g., Arrington v. ER Physicians Group, 04–1235 (La.App. 3 Cir. 9/27/06), 940 So.2d 777;Arrington v. Galen–Med, Inc., 06–2923, 06–2944, 06–2968 (La.2/2/07), 947 So.2d 719, 724, 727;Taylor v. Clement, 04–1069 (La.App. 3 Cir. 9/27/06), 940 So.2d 796; and Taylor v. Clement, 06–2518, 06–2600, 06–2581 (La.2/2/07), 947 So.2d 721, 730, 732. At issue here is the plaintiffs' assertion that the Medical Malpractice Act's limitation of recovery, i.e., the “cap,” contained within La.R.S. 40:1299.42(B)¹ is unconstitutional.

[3 Cir. 2]Pursuant to Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985) (on rehearing), the trial court conducted an April 2011 evidentiary hearing in order to consider the constitutional challenges posed by the cases, now consolidated.² The trial court determined

[110 So.3d 195]

that La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” In its reasons for ruling, the trial court relied on a then-recently released opinion of this court in Oliver v. Magnolia Clinic, 09–439, p. 36 (La.App. 3 Cir. 8/31/11), 71 So.3d 1170, 1192 (wherein a majority of the en banc court concluded that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution and La.R.S. 40:1299.41(A)(1)[.]”).

However, subsequent to the trial court's ruling in the present matter, the Louisiana Supreme Court reversed that aspect of the Third Circuit's ruling finding the malpractice cap unconstitutional. See Oliver v. Magnolia Clinic, 11–2132 (La.3/13/12), 85 So.3d 39. In doing so, the Louisiana Supreme Court relied upon the reasons it previously expressed in Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So.2d 517 (La.1992), cert. denied,508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), and declared that “the MMA's cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.” [3 Cir. 3]Oliver, 85 So.3d at 50. The supreme court reinstated the underlying trial court judgment in full. Id.

Following the trial court's ruling in the present matter, the defendants sought direct review from the supreme court pursuant to La. Const. art. 5, § 5(D).³See Arrington v. Galen–Med, Inc., 12–0908 (La.5/22/12), 89 So.3d 1159. In a per curiam opinion, the supreme court stated:

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

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

Id.

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

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

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

The resulting judgment provided that:

[3 Cir. 4]The above-captioned cases were consolidated to consider challenges to the

[110 So.3d 196]

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

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

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

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

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

The plaintiffs appeal from that judgment and, in their brief to this court, present the following issues for review:

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

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

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

a. Art. I., Sec. 2 Due Process

b. Art. I., Sec. 3 Equal Protection

c. Art. I., Sec. 22 “Adequate damages by Due process of law and justice”

d. Art. II, Sec. 1 & 2, Separation of Powers

[3 Cir. 5]e. Art. III., Sec. 12...