Everett v. Goldman

• Decision Date: 22 May 1978
• Docket Number: No. 60959,60959
• Citation: 359 So.2d 1256
• Parties: Margaret B. Everett, wife of/and Gary EVERETT v. Daniel W. GOLDMAN, M. D., et al.
• Court: Louisiana Supreme Court

Page 1256

359 So.2d 1256

Margaret B. Everett, wife of/and Gary EVERETT v. Daniel W. GOLDMAN, M. D., et al.

No. 60959.

Supreme Court of Louisiana.

May 22, 1978.

W. K. Christovich, Christovich & Kearney, New Orleans, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., Louisiana Dept. of Justice, for State of La., intervenor-respondent.

Samuel S. Dalton, Earl B. Gray, New Orleans, for plaintiffs-respondents.

John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for The La. State Medical Society, amicus curiae.

Jesse D. McDonald, Hudson, Potts & Bernstein, Monroe, for Medical Societies of Ouachita, Orleans, Calcasieu, Rapides, Lafayette & Jefferson Parishes, amicus curiae.

Robert J. Conrad, Jr., Frank M. Adkins, Sam A. LeBlanc, III, Adams & Reese, New Orleans, for Metropolitan Hospital Council, amicus curiae.

David W. Robinson, Robert L. Roland, Watson, Blanche, Wilson & Posner, Baton Rouge, for The La. Hospital Assoc., amicus curiae.

Paul H. Due and Robert D. Downing, Due, Dodson & deGravelles, Baton Rouge, for La. Trial Lawyers Assoc., amicus curiae.

Darryl J. Foster, Robert N. Ryan, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, for La. Dental Assoc., amicus curiae.

CALOGERO, Justice.

This is the first case to come before this Court testing various provisions of Louisiana's Medical Malpractice Act first passed in 1975. La. R.S. 40:1299.41 et seq.

We granted a writ of review on application of defendant Daniel W. Goldman, M.D. who complained of the trial court ruling by which four provisions of the Medical Malpractice Act were declared unconstitutional. ¹

The litigation was prompted by the purported negligence of three medical doctors and a medical clinic during December of 1975 and January of 1976. Plaintiff claims that she had become pregnant, her condition was misdiagnosed, she was subjected to abdominal x-rays, and she was thereafter required to undergo a therapeutic abortion. She and her husband filed suit in May of 1976 against the various doctors, the medical clinic and their several insurors seeking in their petition and its prayer an express dollar amount in the sum of $4,250,322.00.

Louisiana Revised Statute 40:1299.41(E) provides that "No dollar amount or figure shall be included in the demand in any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises." Revised Statute 40:1299.47 provides that "No action against a health care provider covered by this Part, or his insuror, may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel," unless waived by agreement of the parties. R.S. 40:1299.47(B). Relying upon these statutory provisions, and contending that the plaintiff had not presented her complaint to a medical review panel, one of the defendants, Dr. Goldman, filed an exception of prematurity and an alternative motion to strike the provisions of plaintiff's petition by which a specific dollar amount was sought.

After dismissal of the exceptions for reasons not here pertinent, and reinstitution of same, and following the submission of argument and briefs, among which was plaintiff's contention that the exceptions were baseless because the medical malpractice act was unconstitutional, the trial judge dismissed both exceptions, and in so doing expressly declared unconstitutional four provisions of the medical malpractice statute: R.S. 40:1299.41(E) (no dollar amount allowed in demand) and R.S. 40:1299.47 (pre-suit medical review panel), the two provisions raised by defendant's exceptions; and R.S. 40:1299.42(B)(1) (absolute limit of recovery of $500,000) and R.S. 40:1299.44 (patients' compensation fund), two provisions not at issue in connection with defendant's exceptions.

PROVISIONS OF MEDICAL MALPRACTICE ACT

Prior to 1975, medical malpractice claims whether asserted in tort or contract were treated under our law much like other tort or contract claims. In that year, however, reacting to what it considered a crisis in the delivery of medical services to the people of this state, a crisis ostensibly prompted by prohibitive costs in connection with medical malpractice insurance, the state legislature passed several statutes which for simplicity we will refer to as the Medical Malpractice Act of 1975. ²

The most significant provisions of the act fit generally in the following scheme. A health care provider (and this category includes physicians, hospitals, dentists, registered nurses, practical nurses, pharmacists, optometrists, podiatrists, chiropractors, physical therapists, psychologists, or any officer, employee or agent thereof acting in the course and scope of his or her employment) has the option of qualifying under the act. R.S. 40:1299.41(A)(1). ³ If he or she does not qualify, that person is not covered by the provisions of the statute and the patient's remedy is not affected by the terms and provisions of the statute. R.S. 40:1299.41(D). Thus the patient of a health care provider who has not qualified is no different from any other tort or contract victim, while the patient of a qualified health care provider (one who has qualified under the act) is regulated by the act insofar as malpractice recovery is concerned.

The health care provider who chooses to qualify may do so by filing with the Commissioner of Insurance proof of financial responsibility. R.S. 40:1299.42(A)(1). This proof can be a policy of malpractice liability insurance in the amount of at least $100,000.00 per claim or, in the event the health care provider is self insured, proof of financial responsibility in excess of $100,000.00. R.S. 40:1299.42(E). The provider must also pay a surcharge which is an amount determined by the Louisiana Insurance Rating Commission based upon actuarial principles; that sum cannot exceed twenty percent of the costs to each health care provider for maintenance of financial responsibility (his $100,000.00 policy, etc.). R.S. 40:1299.42(A)(2).

The health care provider who qualifies under the act gets the advantage of the provisions thereof, one of which is that the total amount recoverable from all defendants for any injury or death of a patient may not exceed $500,000.00 plus interest and costs, R.S. 40:1299.42(B)(1); and a particular health care provider is not exposed to an amount in excess of $100,000.00 for all claims of malpractice because of injury to or death of any one person, R.S. 40:1299.42(B)(2). Thus, the act allows a subscriber to limit directly the maximum amount of his total liability for any malpractice claim which arises after he enters the program.

Under the act, the $500,000 limits are structured in the following way. The single claimant can get no more than $500,000 including $100,000 from each liable doctor and the balance from the patients' compensation fund. R.S. 1299.42(B). The patients' compensation fund which is made up of the annual surcharges is administered by a risk manager, an insurance company chosen by the Commissioner of Insurance for this purpose in accordance with the public bid laws of the state. See R.S. 40:1299.44; R.S. 40:1299.41(A)(10). Thus, while the malpractice victim with a meritorious legal claim who is a patient of a qualified health care provider is limited to recovery of not more than $500,000, he is presumably assured of recovery of at least $100,000 by virtue of the liability insurance and/or other financial responsibility security. Moreover, he may receive an additional $400,000 from the patients' compensation fund, but only to the extent that there is enough in the fund to honor all claims. ⁴ Under the scheme, all claims from the patients' compensation fund are computed on December 31st of the year in which the claim becomes final and are paid on or before January 15th of the succeeding year. R.S. 40:1299.44(A)(7). Should the fund be insufficient to pay in full all claims awarded during a calendar year, the amount paid to each claimant is to be prorated and any amounts due and unpaid are to be paid, to the extent funds are available, in the following calendar year. ⁵

Linked to these limitations on awards is the act's prohibition against ad damnum clauses. By this legislation Louisiana has statutorily precluded a prayer for a specific amount of damages in an action for negligent health care. In his petition the malpractice victim of a qualified provider may ask only for "such damages as are reasonable in the premises," not a specific dollar amount. R.S. 40:1299.41(E). This provision assertedly is beneficial to health care providers because it prevents the possibility of a jury's being unduly impressed by the quantum of damages sought in the petition. It is intended to prevent the implementation in the public consciousness of inflated ideas of what claims are worth. 50 Tul.L.Rev. 655, 669-70 (1976); 1975 Duke L.J. 1417, 1451-53 (1976). It is hoped by the act's proponents that by countering these psychological causes of large awards the size of malpractice judgments will gradually shrink to "acceptable" levels. 50 Tul.L.Rev. at 670. The consequent reduction in total dollar recoveries would assertedly ease the insurance premium burden and encourage continued medical care by a great number of practitioners.

A second advantage to a health care provider who has qualified under the act is that his patient must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law. R.S. 40:1299.47. Although this requirement can be waived by the agreement of both parties, it is assumed that most malpractice cases against health care providers will be filtered through such a panel.

Under the Louisiana act the medical review panel is made up of three physicians and a nonvoting attorney-chairman. R.S. 40:1299.47(C). Two of the physicians are selected...