Ferguson v. Garmon

• Citation: 643 F. Supp. 335
• Decision Date: 28 August 1986
• Docket Number: Civ. A. No. 84-2054.
• Parties: Polizetta FERGUSON, Plaintiff, v. Gregg W. GARMON, M.D., and the Menninger Foundation, Defendants.
• Court: U.S. District Court — District of Kansas

643 F. Supp. 335

Polizetta FERGUSON, Plaintiff, v. Gregg W. GARMON, M.D., and the Menninger Foundation, Defendants.

Civ. A. No. 84-2054.

United States District Court, D. Kansas.

August 28, 1986.

Jerry R. Palmer, Jerry Levy, Levy, Smith, Garrett & Smith, Topeka, Kan., for plaintiff.

Edwin D. Smith, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendant Garmon.

Gary E. Laughlin, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, Kan., for defendant Menninger Foundation.

Wayne T. Stratton, Marta Fisher Linenberger, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for amicus curiae The Kansas Hosp. Ass'n and The Kansas Medical Society.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is pending before the court on two motions. First, plaintiff Polizetta Ferguson has moved for a determination in advance of trial of the constitutionality of K.S.A. 60-3403. Plaintiff contends that the statute, which allows defendants who are health care providers to introduce evidence showing the amount of collateral source payments received by plaintiffs, violates the equal protection and due process clauses of the United States and Kansas Constitutions.¹ Second, defendants Gregg W. Garmon and the Menninger Foundation ask the court to certify certain questions of law to the Kansas Supreme Court.

I. Defendants' Motion to Certify Questions of Law.

We first address defendants' motion to certify questions of law to the Kansas Supreme Court. Defendants ask the court to certify the following questions:

1. Do the provisions of Laws 1985, Chapter 197, Section 3, K.S.A. 60-3403 change only the law of evidence, or is the substantive law of Kansas also altered to diminish a plaintiff's right to recover damages previously recoverable in a common law action for medical malpractice?

2. Do the provisions of Laws 1985, Chapter 197, Section 3, K.S.A. 60-3403 violate the Kansas Constitution?

3. Are the provisions of Laws 1985, Chapter 197, Section 3, K.S.A. 60-3403 severable from the remainder of Chapter 197, so that the constitutionality of Section 3 can be determined separately and independently of the constitutionality of the remainder of Chapter 197?

The decision whether to certify a question of state law "rests in the sound discretion of the federal court." Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). Generally, however, the certification procedure should be used only to determine state law questions; the state court should not be asked to decide any issues of federal law. Fretz v. Keltner, 109 F.R.D. 303, 305 (D.Kan.1985); 17 Wright, Miller, and Cooper, Federal Practice and Procedure § 4248, at 529 (1978).

Although plaintiff nominally challenges K.S.A. 60-3403 under both the United States and Kansas Constitutions, we agree with the Honorable Dale E. Saffels that the issue posed "is essentially a question of federal law involving federally-protected rights." Fretz, 109 F.R.D. at 306 (refusing to certify similar questions in a case involving the same issues as are raised here). In any event, in Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), the Kansas Supreme Court addressed the constitutionality of the predecessor statute to K.S.A. 60-3403 and found it unnecessary to discuss the first and third proposed questions for certification. We are similarly convinced that those questions need not be answered to determine the constitutionality of the current state statute. Nor do we think it necessary to certify the second proposed question. The Kansas Supreme Court has given sufficient guidance on the scope of the relevant Kansas constitutional provisions that we need not delay trial by certifying the question. Therefore, we shall deny defendants' motion to certify questions of law to that court.

II. Federal Equal Protection Challenge.

In her complaint, plaintiff alleges that she has suffered injuries resulting in an almost total loss of her digestive tract and that those injuries were caused by defendants' negligence. A portion of her medical expenses have been and are being paid by insurance.

Defendants want to introduce evidence of plaintiff's insurance payments in the hope that the jury will reduce any award to plaintiff by the amount of those payments. Although evidence of such collateral source payments has long been inadmissible under the common law, Coburn v. Agustin, 627 F.Supp. 983, 985 (D.Kan.1985), the Kansas Legislature enacted K.S.A. 60-3403 to allow for the introduction of such evidence in medical malpractice liability actions. Plaintiff argues that the statute violates her federal constitutional right to the equal protection of the law because it treats her and other medical malpractice plaintiffs differently than other tort plaintiffs.

A. Legal Standards.

The Equal Protection Clause "generally provides that all persons similarly situated should be treated alike." Edwards v. Valdez, 789 F.2d 1477, 1482 (10th Cir.1986) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). Traditionally, two standards have been used to determine whether state legislation runs afoul of that clause. The first, and by far the most commonly applied, is the rational basis test. Under this test, the court "seeks only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose." Plyler, 457 U.S. at 216, 102 S.Ct. at 2394.

The second standard, labeled "strict scrutiny," is applied when the challenged classification involves a suspect class or impinges upon a fundamental right. Suspect classes include those based on race, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), alienage, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and national origin, Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Fundamental rights include voting, privacy, freedom of association, marriage, and travel. See generally San Antonio School District v. Rodriguez, 411 U.S. 1, 17-39, 93 S.Ct. 1278, 1288-1300, 36 L.Ed.2d 16 (1973). A statute that draws such classifications violates equal protection unless the state can "demonstrate that its classification is precisely tailored to serve a compelling government interest." Plyler, 457 U.S. at 217, 102 S.Ct. at 2395; see also Hoffman v. United States, 767 F.2d 1431, 1435 (9th Cir.1985).

In recent years, the Supreme Court has enunciated a third, intermediate level of scrutiny, which is applied to classifications based on gender, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), and illegitimacy, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Under this level of review, a statutory classification is valid if it substantially furthers a legitimate state interest. Edwards, 789 F.2d at 1483.

B. Choosing a Standard.

A court's choice of which of the standards to apply to a given statutory classification has, of course, a tremendous effect on whether the statute is upheld or found to be unconstitutional. Obviously, a statute that undergoes strict scrutiny faces a far greater likelihood of being found to violate the Equal Protection Clause than one that is examined under the relatively toothless rational basis test. And that conclusion is borne out by those decisions which examine statutes that treat medical malpractice plaintiffs differently than other tort plaintiffs.

Several state courts have examined the constitutionality of state statutes that either abrogate the collateral source rule for medical malpractice suits, or otherwise provide special rules for such cases, such as mandatory pre-trial screening or limitations on damage awards. Invariably, those courts that decide to apply an intermediate level of scrutiny have found such statutes to be unconstitutional. See, e.g., Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985); Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); and Arneson v. Olson, 270 N.W.2d 125 (N.D.1978). On the other hand, no court that has applied the rational basis test to such a classification has found it to violate equal protection. See Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981); Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980); Johnson v. St. Vincent's Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980); Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

Obviously, then, perhaps the most important task before the court is to choose which standard to apply in the instant case. Because the classification in issue involves neither a suspect class nor a fundamental right, strict scrutiny is clearly inapplicable. Hoffman, 767 F.2d at 1435. The question is whether to apply the rational basis test or a more stringent form of scrutiny.

The constitutionality of K.S.A. 60-3403 and its predecessor, K.S.A. 60-471, have been examined by four of the judges from this district. In Marlatt v. Hutton, No. 76-46-C5 (D.Kan., unpublished, April 3, 1979), and Holman v. The Menninger Foundation, No. 79-4090 (D.Kan., unpublished, July 13, 1982), Judge Richard Rogers held that K.S.A. 60-471 was constitutional. However, Judge Frank Theis, in Doran v. Priddy, 534 F.Supp. 30, 37 (D.Kan.1981), apparently employed middle level scrutiny and struck down the same statute.²

More recently, Judge Patrick F. Kelly considered an equal protection challenge to the current statute in Crowe v. Wigglesworth, 623 F.Supp. 699 (D.Kan.1985). Although he criticized the statute and questioned its necessity, Id. at 705-707, he upheld it using the rational basis test. In Coburn v. Agustin, 627 F.Supp. 983 (D.Kan.1985), however, Judge Theis reexamined the issue in light of the amended statute. There, unlike in his earlier decision in Doran, he refused to apply middle level review, recognizing that "the Supreme Court has used...