Arrington v. Er Physicians Group, Apmc., 04-1235.

• Citation: 940 So.2d 777
• Decision Date: 27 September 2006
• Docket Number: No. 04-1235.,04-1235.
• Parties: Susan ARRINGTON, etc. v. ER PHYSICIANS GROUP, APMC, et al.
• Court: Court of Appeal of Louisiana (US)

940 So.2d 777

Susan ARRINGTON, etc. v. ER PHYSICIANS GROUP, APMC, et al.

No. 04-1235.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

Rehearing Denied November 15, 2006.

Oliver Jackson Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiffs/Appellants, Susan, Joelle and Laura Arrington.

Michael Keith Prudhomme, Thomas P. Leblanc, Lake Charles, LA, for Secondary Defendant/Appellant, Louisiana Patient's Compensation Fund Oversight Board.

Charles C. Foti, Jr., Attorney General, J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defendants/Appellees/Cross-Appellants, State of Louisiana and Galen-Med, Inc., formerly d/b/a Lake Area Medical Center.

Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Defendants/Appellees/Cross-Appellants, State of Louisiana and Galen-Med, Inc., formerly d/b/a Lake Area Medical Center.

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

PICKETT, Judge.

HISTORY

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:

Considering the devaluation of the dollar in the thirty years since the passage of the medical malpractice act is such that the $500,000.00 limit imposed in 1975 is now, according to competent evidence, worth only $160,000.00, and considering that Section 22 of Article I of the Louisiana Constitution of 1974 provides Louisiana citizens with an "adequate remedy" under our law, is the limitation on recovery for general damages of $500,000.00 imposed by the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., still considered constitutional?

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.

APPEAL

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 and granting the motion for summary judgment filed by the defendant, GALEN-MED, INC., upholding the constitutionally of the limitation on recovery or "cap" provisions of the act.

FACTS

The proceedings which led up to this appeal are detailed by the trial judge in his written reasons for judgment:

On October 28, 1994, WILLIAM ARRINGTON died at the LAKE AREA MEDICAL CENTER.

On June 23, 1997, plaintiff filed an instant lawsuit alleging DR. RICHARD SAMUDIA, ER PHYSICIANS GROUP, A.P.M.C., GALEN-MED., INC., d/b/a LAKE AREA MEDICAL CENTER, and related entities were all liable for the death of WILLIAM ARRINGTON. This lawsuit was filed after a Medical Review Panel had rendered an opinion adverse to DR. SAMUDIA in accordance with Section 40:1299.47 of the Louisiana Medical Malpractice Act (La. R.S. 40:1299.41, et seq[)].

On June 16, 1999, this court approved the settlement of the plaintiff's claim against DR. SAMUDIA for $100,000.00 pursuant to the MMA which limited DR. SAMUDIA's liability to $100,000.00. [Section 40:1299.42(B)]. Additionally, under Section 40:1299.44(C), the payment of $100,000.00 on behalf of DR. SAMUDIA resulted in an admission of the liability of DR. SAMUDIA.

On August 15, 2000, this court approved the settlement of the plaintiff's claim with the LOUISIANA PATIENT'S COMPENSATION FUND OVERSIGHT BOARD for the sum of $500,000.00, paid from the LOUISIANA PATIENT'S COMPENSATION FUND, pursuant to the Louisiana Medical Malpractice Act. The $500,000.00 sum represented $390,000.00 principal plus $90,000.00 legal interest, plus $20,000.00 expenses. In consideration of the payment of $500,000.00, the plaintiffs fully released DR. SAMUDIA, THE LOUISIANA PATIENT'S COMPENSATION FUND, THE LOUISIANA PATIENT'S COMPENSATION FUND OVERSIGHT BOARD and EVANSTON INSURANCE COMPANY, and all related parties. The plaintiffs specifically reserved all rights and causes of action against defendant, GALEN-MED, INC. D/b/a, LAKE AREA MEDICAL CENTER, while reserving its non-medical malpractice cause of action against E.R. PHYSICIAN'S GROUP and ST. PAUL FIRE AND MARINE INSURANCE COMPANY.

Plaintiff seeks to have the limitation of liability provided at Section 40:1299.4 2(B) declared unconstitutional and recover their damages without limitation from GALEN-MED, INC. GALEN-MED, INC. seeks to have its' [sic] liability limited to amounts paid by others.

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:

Our basically civilian tradition has been partly overlaid and replaced by Anglo-American common law....

Today, despite the renewed importance of the civilian sources of our substantive law, there is little support in the Louisiana bench and bar for the civilian theory that the role of the judges is to decide cases only, leaving doctrinal development to the scholarly writers....

The Louisiana judge, like his commonlaw brother, is a law-announcer as well as a case-decider....

As with the common-law judge, he views himself not merely as a technician but also as a scholar, law-maker and exponent of doctrine. However, as with a modern day civilian judge, he is essentially more free than his common law counterpart from the mechanical effects of "binding" precedent; he has the freedom to return, independent of intervening judicial precedents, to the initial legislative concepts and use creative analogies and constructs based upon them; or, in the absence of legislation expressly intended to apply, he is free to devise socially just and sound rules to regulate the unprovided-for case.

Justice Tate noted that even in other states, a judge is less bound by precedent when deciding an issue of constitutional, rather than jurisdictional or statutory, law.

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:

In 1975 the Louisiana Legislature enacted the Medical Malpractice Act in an effort to combat the rising costs of health care in this state. In part, the Act was designed to increase the likelihood that health care providers would carry malpractice insurance by regulating the total damage recovery of malpractice victims, thereby reducing insurance premiums. Butler v. Flint Goodrich Hospital, 607 So.2d 517 (La. 1992), cert. denied, sub nom., Butler v. Medley, 508 U.S. 909, 113 S.Ct., 2338, 124 L.Ed.2d 249, (1993); Williams v. Kushner, 549, So.2d 294, 307-308 (La. 1989) (Dixon, C.J., dissenting); Everett v. Goldman, 359 So.2d 1256, 1263, (La. 1978).

....

The Louisiana Medical Malpractice Act severely limits the right of injured patients. In order to qualify for the Act, a patient must first go through a Medical Review Panel rather than go directly to the courts. After going through this process, they must then file a claim in the courts. The original Medical Malpractice Act as interpreted by the court provided liability once the qualified health care provider had settled with plaintiffs. The court has eroded that one benefit given to the plaintiffs by The Medical Malpractice Act by requiring that liability now be proven again as to third party fault and fault of a sole defendant. Conner v. Stelly, La. Supreme Court [sic][2002,] 807 So.2d 827.

These new requirements above were not contemplated in the Act which was part of the "quid pro quo" given to the plaintiffs for the diminution in value of their claims. These were done under the guise of the medical malpractice "crisis" in order to make premiums reasonable and affordable for health care providers. The erosion of the only benefits to the plaintiff's "liability" being admitted against The Fund once the health care provider had settled with the patient and the fact that the "cap" amount of $500,000.00 which was created in 1975 is now eroded to approximately $160,000.00 in today's dollar value. [We note that the August 15, 2003, affidavit of Dr. Michael M. Kurth, Professor of Economics at McNeese State University, Plaintiffs' Exhibit 6, states that $500,000.00 in 1975 dollars was equivalent to only $146,435.00 at the time of his affidavit.] This means that the Act is no longer giving the equal "quid pro quo" to the plaintiff and has eroded their rights to the point where they have none.

....

At the time of the enactment of legislation, perhaps even eleven years ago at the time of the Butler decision, the balance was imperfect. Now it is not just imperfect, there is no balance at...