Kelty v. Brumfield

Citation633 So.2d 1210
Parties93-1142 La
Decision Date25 February 1994
CourtLouisiana Supreme Court
Concurring and Dissenting Opinion

of Justice Hall March 1, 1994.

Dissenting Opinion of

Justice Lemmon Filed Feb. 25, 1994;

Revised March 8, 1994.

Rehearing Denied March 25, 1994.

[93-1142 La. 1] PER CURIAM.

The plaintiffs, parents of a child who was severely brain-damaged at birth by a physician's malpractice, recovered by settlements and a judgment the $500,000 maximum principal sum amount permitted for the child under the cap on damages set by the Medical Malpractice Act ("MMA"). La.R.S. 40:1299.41 et seq. The recovery for the child did not include any amount or value for her medical care and related expenses. This is the third proceeding in which the plaintiffs have moved the district court from which the judgment issued for a certification that the child is "a patient in need of future medical care and related benefits" from the Patients' Compensation Fund ("PCF") as provided for by Section 43 of the MMA. La.R.S. 40:1299.43. In the first proceeding, the plaintiffs and the PCF stipulated and the trial court found facts that show the child fits the definition of a "patient in need of future medical care," i.e., her recovery consumes the whole amount permitted by the $500,000 cap, "exclusive of the value of future medical care and related benefits." La.R.S. 40:1299.43A(3). However, the district court concluded that the child could not receive future medical care benefits because her claim for damages was filed and pending prior to September 1, 1984, and Section 43 of the MMA adding such benefits was made "applicable to all malpractice claims filed on or after September 1, 1984." 1984 La.Acts No. 435, § 3. The district court's decision was affirmed on [93-1142 La. 2] appeal. Kelty v. Brumfield, 534 So.2d 1331 (La.App. 4th Cir.1988). Subsequently, in a different case, this court declared unconstitutional and reformed Section 3 of Act 435 of 1984 to make Section 43 of the MMA applicable to "claims and litigation pending when it was passed." Williams v. Kushner, 549 So.2d 294, 297 (La.1989). When the plaintiffs re-urged their motion in the second proceeding, the district court overruled the PCF's exception of res judicata. The court of appeal, however, granted the PCF's application for a supervisory writ and sustained the exception. Kelty v. Brumfield, 559 So.2d 907 (La.App. 4th Cir.1990). In the current proceeding, the plaintiffs again moved the district court for a certification that the child is a patient in need of future medical care, the district court sustained the PCF's exception of res judicata, and the appeals court affirmed. Kelty v. Brumfield, 92-CA-0904, 615 So.2d 1131 (La.App. 4th Cir.1992). We grant certiorari to sort out the thorny jurisdictional-res judicata problems which the plaintiffs' claim presents and, after considering the extensive pleadings records and briefs in all three proceedings, reverse.


Anne Mary Kelty sustained severe brain damage during childbirth on July 18, 1978 because of the malpractice of a physician insured by the PCF. The malpractice occurred when the doctor administered Pitocin intra-muscularly to induce labor, causing abruption of the placenta and resulting hemorrhage. Lynn and Edward Kelty, the child's parents, were not made aware that the child's birth had been induced by Pitocin until several years later.

In 1983, the Keltys launched what has become a repetitive, ten year campaign of litigation against the physician, a hospital and the PCF in behalf of Anne Mary Kelty. The Keltys requested a medical review panel on April 22, 1983. Before the review panel was convened, the physician filed an exception claiming that the Keltys' claim had prescribed. On February 13, 1985, the exception [93-1142 La. 3] was overruled. The review panel rendered its expert opinion as to whether or not the evidence supported the conclusion that the defendants failed to act within the appropriate standards of care on June 25, 1985.

The Keltys filed their original court petition in behalf of their child on August 23, 1985. The physician filed another exception of prescription. The trial court referred the exception to the merits. The defendants' applications for writs were denied by the court of appeal. See Kelty v. Brumfield, 534 So.2d 1331, 1332 (La.App. 4th Cir.1988).

On April 29, 1987, the hospital paid $75,000 in settlement of the plaintiffs' claims in behalf of the child and themselves. On October 31, 1987, the physician and his individual insurer agreed to a voluntary payment to the plaintiffs of $100,000, the amount of their maximum potential liability under the medical malpractice act. The lawsuit was dismissed as to the physician and the hospital. On November 2, 3, and 6, the trial court heard evidence on the exception of prescription which the PCF continued to urge. During the hearing, the parties stipulated that the child's damages, exclusive of future medical care and related expenses, exceeded $500,000.

On November 17, 1987, the trial court overruled the exception of prescription on the ground that the PCF did not have standing to raise the issue of prescription after the physician made the voluntary payment of his maximum potential liability, which constituted an admission of liability binding on the PCF. In the same judgment, the trial court awarded the plaintiffs $500,000 exclusive of future medical care and related losses, subject to certain credits and debits, the maximum amount recoverable for the child under the damages cap. On December 3, 1987, the plaintiffs filed a motion requesting a trial before a jury "on the issue of future medicals and on the issue of damages". The trial court set the issues of future medicals and damages to be heard before a jury. On January 11, 1988, however, the trial court, in supplemental reasons for judgment, ruled that the Keltys' [93-1142 La. 4] allegations as to future medical damages could not be considered because their claim and suit had been filed before September 1, 1984, the effective date of Section 3 of Act 435 of 1984.

The PCF appealed, and the Keltys answered contending that they were entitled to a trial on the issues of total damages, including future medical losses, because they intended to contest the constitutionality of the $500,000 cap on damages. The court of appeal fully affirmed the trial court's judgment against the PCF overruling its exception of prescription. As to the Keltys arguments, however, the appeals court made rulings with a reservation. First, because Act 435 of 1984, which provided for the payment of future medical care and related benefits in excess of the statutory cap of $500,000 on damages provided that the Act would be applicable to claims filed on or after September 1, 1984, and the Keltys "claim" was filed when they requested a medical review panel on April 22, 1983, rather than when they filed suit on August 23, 1985, the partial amendment of the cap as to future medical expenses by Act 435 of 1984 is not applicable to this case. Second, the legislature expressly intended for Act 435 of 1984 to apply prospectively only. Finally, the court of appeal concluded its opinion with this reservation:

Plaintiffs argue that they should be allowed to proceed with a trial on the damage issue because they intend to contest the constitutionality of the five hundred thousand dollar limitation. This Court, in Williams v. Kushner, 524 So.2d 191 (La.App. 4th Cir.1988), writs granted 526 So.2d 785, has upheld the constitutionality of the statutory limitation. The Supreme Court has granted writs to consider this issue, but as of the date of this opinion no judgment has been rendered. Therefore, at this time, plaintiffs have no right to proceed further. However, should the Williams case be reversed, we reserve to plaintiffs the right to proceed to trial on the issue of quantum. Kelty v. Brumfield, 534 So.2d 1331, 1335 (La.App. 4th Cir.1988).

Subsequently, on September 12, 1989, this court rendered its much awaited decision in the case that the court of appeal had anticipated would resolve the question of the constitutionality of the $500,000 cap on damages. Williams v. Kushner, 549 So.2d 294, 297 (La.1989). Surprisingly, however, a majority of this court [93-1142 La. 5] concluded that neither the constitutionality of the $500,000 cap on total damages or that of the $100,000 cap on liability of a qualified health care provider was properly before the court and must therefore await consideration on another day. Id. at 296. Yet, even more unexpectedly, the court reached an issue that had not been assigned as error or argued explicitly by deciding that there was a constitutionally intolerable inconsistency between Act 435 of 1984 which added "future medical care and related benefits" to the MMA and Act 239 of 1985 which provided future medical benefits in the Malpractice Liability for State Services Act, R.S. 40:1299.39 et seq. ("MLSSA"). Act 435 of 1984, in adding R.S. 40:1299.43, made future medical care and related benefits available under the MMA only to those victims of private malpractitioners whose claims were filed after September 1, 1984. But Act 239 of 1985, in amending the MLSSA, made such benefits available to victims of public malpractitioners regardless of when their claims had been filed so long as they were pending upon passage of the act. This court declared that the discrepancy in treatment of future medical care claimants by the two acts was a violation of the state constitutional guarantee of equal protection of the laws. Furthermore, this court held that the violation required that the MMA's provision be reformed to give equal treatment to claims pending upon the date of its passage. In declaring unconstitutional...

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