Coburn By and Through Coburn v. Agustin

• Decision Date: 25 November 1985
• Docket Number: Civ. A. No. 80-1520.
• Citation: 627 F. Supp. 983
• Parties: Christopher COBURN, a minor, By and Through Royce COBURN and Leslie Coburn, his father and mother, natural guardians and next friends, Plaintiff, v. Conrado AGUSTIN, M.D., Defendant.
• Court: U.S. District Court — District of Kansas

627 F. Supp. 983

Christopher COBURN, a minor, By and Through Royce COBURN and Leslie Coburn, his father and mother, natural guardians and next friends, Plaintiff, v. Conrado AGUSTIN, M.D., Defendant.

Civ. A. No. 80-1520.

United States District Court, D. Kansas.

November 25, 1985.

Andrew W. Hutton, Michaud, Cordry & Michaud, Hutton & Hutton, Wichita, Kan., for plaintiff.

Darrell D. Kellogg, Wichita, Kan., for defendant.

OPINION

THEIS, District Judge.

This is an action for medical malpractice in which the minor plaintiff claims he sustained permanent brain damage and other serious injuries as a result of the defendant doctor's negligence. Defendant's requested instruction number 59 would have informed the jury that it could consider collateral source payments to the plaintiff in mitigation of the plaintiff's damages. The proposed instruction tracked the language of the Kansas Medical Malpractice Statute, effective July 1, 1985, which abrogates the collateral source rule in medical malpractice actions. 1985 Kan.Sess.Laws 197. On September 26, 1985, the Court denied the requested instruction and held the new Kansas statute unconstitutional as violative of equal protection. In the following opinion, the Court explains the reasons for its bench ruling.

I. THE COLLATERAL SOURCE RULE IN KANSAS

The collateral source rule generally provides that damages recoverable by a plaintiff for personal injuries may not be reduced by the amount of payments or services received from sources independent of the tortfeasor. See J. Dobbs, Handbook on the Law of Damages § 8.10 (1973). Kansas has long applied this doctrine. Southard v. Lira, 212 Kan. 763, 512 P.2d 409 (1973); Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1963); Lewark v. Parkinson, 73 Kan. 553, 85 P. 601 (1906).

In 1976, as a part of its response to what was perceived to be a crisis in medical malpractice, the Kansas Legislature enacted K.S.A. § 60-471, which modified the collateral source rule as follows:

(a) In any action for damages for personal injuries or death arising out of the rendering of or the failure to render professional services by any health care provider, evidence of any reimbursement or indemnification received by a party for damages sustained from such injury or death, excluding payments from insurance paid for in whole or in part by such party or his or her employer, and services provided by a health maintenance organization to treat any such injury, excluding services paid for in whole or in part by such party or his or her employer, shall be admissible for consideration by the trier of fact subject to the provisions of subsection (b). Such evidence shall be accorded such weight as the trier of fact shall choose to ascribe to that evidence in determining the amount of damages to be awarded to such party.

Judge Richard Rogers upheld this statute in the face of equal protection challenges in Holman v. The Menninger Foundation, No. 79-4090 (D.Kan., unpublished, July 13, 1982), and Marlatt v. Hutton, No. 76-46-C5 (D.Kan., unpublished, April 3, 1979). In Doran v. Priddy, 534 F.Supp. 30 (D.Kan.1981), this Court declared K.S.A. § 60-471 unconstitutional, reasoning that the abolition of the collateral source rule for a single class of tort defendants— health care providers—violated the equal protection clauses of the United States and Kansas Constitutions. In addition, this Court determined that the statute fostered inequitable results by discriminating between patients whose collateral source was insurance and those whose collateral source was services rendered gratuitously. Id. at 38. On June 21, 1985, the Kansas Supreme Court evaluated an equal protection challenge to K.S.A. § 60-471, agreed with this Court's analysis and conclusion and struck down the statute as unconstitutional. Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985).

Effective July 1, 1985, the Kansas Legislature repealed K.S.A. § 60-471 and enacted the following statute in its place:

(3)(a) In any medical malpractice action, evidence of the amount of reimbursement or indemnification paid or to be paid or for the benefit of a claimant under the following shall be admissible: (1) Medical, disability or other insurance coverage except life insurance coverage; or (2) worker's compensation, military service benefit plan, employment wage continuation plan, social welfare benefit program or other benefit plan or program provided by law.

(b) When evidence of reimbursement or indemnification of a claimant is admitted pursuant to subsection (a), the claimant may present evidence of any amounts paid to secure the right to such reimbursement or indemnification and the extent to which the right to recovery is subject to a lien or subrogation right.

(c) In determining damages in a medical malpractice action, the trier of fact shall consider: (1) The extent to which damages awarded will duplicate reimbursement or indemnification specified in subsection (a); and (2) the extent to which such reimbursement or indemnification is offset by amounts or rights specified in subsection (b).

1985 Kan.Sess.Laws 197. While the Kansas state courts have not addressed the validity of this provision, in an opinion filed August 2, 1985, Judge Patrick Kelly upheld the new collateral source rule statute in the face of an equal protection challenge. Crowe v. Wigglesworth, 623 F.Supp. 699 (D.Kan.1985). Judge Kelly noted that "in legislation of the type here at issue, out of the similarly situated group of persons injured by the tortious acts of others, the state has isolated for different treatment those persons injured by the negligent acts or omissions of health care providers." Id. at 702. Yet Judge Kelly sustained the legislation under the rational basis test because he determined the legislature could reasonably have concluded that "insofar as the size of medical malpractice verdicts allegedly affects the so-called crisis, an effort to more closely relate those verdicts to the actual loss suffered by plaintiffs would offer the malpractice insurance companies some relief." Id. at 705. Although he observed that "blind adherence to this most permissive constitutional standard and the consequent over-indulgence of state legislatures in these matters have been properly criticized as an abdication of judicial responsibility," id. at 703, Judge Kelly felt constrained to apply the rational basis test because he viewed the statute in question as "merely a procedural enactment, a rule of evidence...." Id. at 704. Because of the substantive operation of the collateral source rule, this Court believes a more searching equal protection inquiry is warranted.

II. EQUAL PROTECTION—AN EMERGING STANDARD OF REVIEW

The Fourteenth Amendment to the United States Constitution declares that no state shall deny a person equal protection of the law. The Kansas Constitution's counterpart of the Fourteenth Amendment is section 1 of the Kansas Bill of Rights: "All men are possessed of equal and inalienable rights, among which are life, liberty, and the pursuit of happiness." Kansas cases appear to construe the Kansas constitutional provision as being substantially the equivalent of the parallel provision in the United States Constitution. See, e.g., State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978).

The equal protection clause has evolved from what was once considered the "last resort" of constitutional argument, Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927), into a vital tool for effecting social change. A review of the historical development of the various models and trends of equal protection analysis is crucial to an understanding of this evolution and of the Supreme Court's current treatment of the concept.

A. Historic Development of Equal Protection Analysis

Traditionally, equal protection issues have been decided within a two-tiered analytic framework. United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84, 82 L.Ed. 1234 (1938). The first tier involves a strict scrutiny test by which courts evaluate statutes that discriminate against suspect classes, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (national origin), or that encroach on fundamental rights, see, e.g., Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (right of political association); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (right to free exercise of religion); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to criminal appeals). Under the strict scrutiny standard, the Supreme Court has required the state to show that the statutory scheme in question was "necessary to promote a compelling governmental interest." Shapiro, 394 U.S. at 638, 89 S.Ct. at 1333 (emphasis in original). In addition, if the legislation affects fundamental rights, the Court has required the state to have chosen the least restrictive means of achieving the governmental objective. Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003-04, 31 L.Ed.2d 274 (1972).

The second tier involves a "rational basis" test under which legislation that does not involve a fundamental right or a suspect class is evaluated. Under the rational basis standard, "a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The legislative classification must be sustained ...