CROWE BY AND THROUGH CROWE v. Wigglesworth
| Decision Date | 02 August 1985 |
| Docket Number | No. 84-1792-K.,84-1792-K. |
| Citation | 623 F. Supp. 699 |
| Parties | Katherine CROWE, an Incapacitated Minor, By and Through Her Parents, Natural Guardians and Next Friends, Sally A. CROWE and Frederick J. Crowe, Plaintiff, v. Anne WIGGLESWORTH, M.D., Maura Welch, M.D., Individually and as Co-Partners, d/b/a Kaw Valley Women's Health Center, Defendants. |
| Court | U.S. District Court — District of Kansas |
Charles S. Fisher, Jr., Topeka, Kan., for plaintiff.
Thomas L. Theis, Topeka, Kan., for defendants.
This is a medical malpractice action brought under the Court's diversity jurisdiction. Plaintiff Crowe is an incapacitated minor residing in Oregon, suing through her parents as natural guardians and next friends. Defendants Wigglesworth and Welch are Kansas physicians, partners holding themselves out to the public as the Kaw Valley Women's Health Center. Dr. Wigglesworth provided prenatal care to Sally Crowe, plaintiff's mother, and attended plaintiff's birth in August, 1983. Plaintiff now claims Dr. Wigglesworth was negligent during the labor and delivery, causing plaintiff numerous and severe permanent injuries. Her complaint was filed November 9, 1984, and trial was recently scheduled to begin August 6, 1985.
At the time plaintiff filed her complaint, the modified collateral source rule contained in K.S.A. 60-471 governed the admissibility of evidence of reimbursement or indemnification received by a party injured by the negligence of a health care provider. In late April 1985, the Kansas Legislature repealed K.S.A. 60-471 and, in the substitute for Senate Bill No. 110, enacted a new rule governing the admissibility of this evidence in medical malpractice liability actions. 1985 Kan.Sess.Laws, Ch. 197, Sec. 3. The parties to this case filed briefs addressing the applicability and constitutionality of this rule. For the reasons which follow, the Court concludes Section 3 of the new act applies to this case and that, notwithstanding the Court's serious misgivings about this legislation, within the limited confines of that section, the infringement on plaintiff's rights resulting from abolition of the collateral source rule does not rise to the level of an equal protection violation.
The new act contains three sections. The first is a definitional section. Section 2 establishes a bifurcated procedure for assessing punitive damages in medical malpractice liability actions. It places a ceiling on the total that can be assessed, limits a plaintiff's recovery to 50% of the amount awarded in a given case, and requires the remaining 50% be paid to the state health care stabilization fund. Plaintiff Crowe does not seek punitive damages in the present case. Accordingly, issues concerning the applicability and constitutionality of Section 2 are not before the Court.
Section 3 of the new act, however, directly affects this case. That section abandons, for medical malpractice liability actions, the common law collateral source rule and provides instead defendants are entitled to the benefit of evidence of all reimbursement or indemnification "paid or to be paid to or for the benefit" of a party injured by the negligence of a health care provider. There is no question the section applies to this diversity action. Further, it is clear that even though the Legislature generally intended the entire act to take effect July 1, 1985, it specifically intended Section 3 to apply "to any action pending or brought on or after July 1, 1985, regardless of when the cause of action accrued." (Emphasis added.) 1985 Kan.Sess.Laws, Ch. 197, Sections 3(d), 6. Far more difficult is plaintiff's assertion Section 3 of the act violates her rights, under the federal and state constitutions, to equal protection of the law. Analysis of this issue requires a short historical review.
The common law collateral source rule excluded evidence showing damages claimed by a party were actually paid by someone else, or that services had been provided gratuitously. Doran v. Priddy, 534 F.Supp. 30, 35 (D.Kan.1981). In Grayson v. Williams, 256 F.2d 61, 65 (10th Cir.1958), the Court of Appeals addressed the public policy underlying this rule:
Where part of a wrongdoer's liability is discharged by payment from collateral source ... the question arises who shall benefit therefrom, the wrongdoer or the injured person. No reason in law, equity or good conscience can be advanced why a wrongdoer should benefit from part payment from a collateral source of damages caused by his wrongful act. If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer shall be relieved of his full responsibility for his wrongdoing. We think we may judicially note that notwithstanding that the law contemplates full compensation, incidental losses and handicaps are suffered in a great number of personal injury cases which are not, and cannot be, fully compensated.
See also Restatement (Second) of Torts § 920A(2), Comment b (1979).
Responding to the so-called medical malpractice crisis in 1976, the Kansas Legislature enacted K.S.A. 60-471, which modified the common law collateral source rule. The new evidentiary rule contained in subsection (a) of the statute read:
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.
The federal courts of Kansas were the first to address the constitutionality of K.S.A. 60-471. Judge Rogers upheld the statute against equal protection challenges in Marlatt v. Hutton, No. 76-46-C5 (D.Kan. Apr. 3, 1979), and again in Holman v. The Menninger Foundation, No. 79-4090 (D.Kan. July 13, 1982) (). However, in Doran v. Priddy, 534 F.Supp. 30 (D.Kan.1981), Judge Theis ruled K.S.A. 60-471 violated the equal protection clauses of both the United States and Kansas Constitutions. He reached that conclusion largely because of the following hypothetical situation showing the inequitable treatment of two patients suffering similar injuries at the hands of the same health care provider:
One is wealthy, and has insurance, while the other has no resources to pay for medical care and is uninsured. The first is able to retain private nursing care, which is paid for by the insurance, while the second, needing the same continual care, is cared for by his wife, who was forced to quit her job to stay home and care for him. It is said the modified collateral source rule would exclude evidence that the private nursing care for the first patient was in fact paid for by the insurance company, while the jury would be apprised of the fact that the second patient's care was provided free by his wife, and perhaps she had been earning only the minimum wage at the job she left.
The Kansas Supreme Court was faced with a constitutional challenge to K.S.A. 60-471 only recently, and it agreed with Judge Theis' analysis and conclusion. Wentling v. Medical Anesthesia Services, P.A., 237 Kan. 503, 701 P.2d 939, 950 (Kan. 1985). That Court noted yet another situation highlighting the discriminatory effects of K.S.A. 60-471:
If the statute is to be applied according to its plain language, an even more invidious hypothetical example comes to mind. Assume a married couple is injured in the same catastrophe. They are both treated by the same health care provider with disastrous results. The husband is employed and his employer provides health insurance. The wife is not gainfully employed. In separate actions for similar treatment provided by the same health care provider as a result of the same catastrophe, the fact that the wife's medical expenses were paid by insurance is proper evidence to submit to the jury but the same evidence as it applies to the husband is not. Such a distinction makes no sense whatsoever.
Effective July 1, 1985, the Legislature repealed K.S.A. 60-471 and enacted the following rule governing the admissibility of evidence of collateral source benefits:
1985 Kan.Sess.Laws, Ch. 197, Sec. 3.
Plaintiff Crowe argues Section 3 contains...
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