Oliver v. Clinic

• Decision Date: 31 August 2011
• Docket Number: No. 09–439.,09–439.
• Citation: 71 So.3d 1170
• Parties: Joe OLIVER, et al.v.MAGNOLIA CLINIC, et al.
• Court: Court of Appeal of Louisiana — District of US

71 So.3d 1170

Joe OLIVER, et al.

v.MAGNOLIA CLINIC, et al.

No. 09–439.

Court of Appeal of Louisiana, Third Circuit.

Aug. 31, 2011.

OPINION TEXT STARTS HEREWest CodenotesUnconstitutional as AppliedLSA–R.S. 40:1299.42(B) Todd A. Townsley, Marcus P. LaCombe, The Townsley Law Firm, L.L.P., Lake Charles, LA, for Plaintiffs/Appellants, Joe and Helena Oliver, individually and on behalf of their minor child, Taylor Oliver.Richard B. Cappel, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendants/Appellees, Susan Duhon d/b/a the Magnolia Clinic and St. Paul Marine Ins. Co.John Elliott Baker, Covington, LA, for Intervenor/Appellee, State of Louisiana.Nadia Marie de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Lafayette, LA, for Intervenor/Appellant, Louisiana Patient's Compensation Fund.Guice Anthony Giambrone, III, Kelly A. Dugas, Blue Williams, L.L.P., Metairie, LA, Amicus Curiae, Louisiana Association of Nurse Practitioners.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, SHANNON J. GREMILLION and PHYLLIS M. KEATY, Judges.COOKS, Judge.

[3 Cir. 1] This matter is on remand from the Louisiana Supreme Court for en banc consideration the majority of judges voted with instruction that we render a decree “reflecting a majority vote on each of the issues presented.” Oliver v. Magnolia Clinic, 10–2766, 10–2782, 10–2785 (La.3/25/11), 57 So.3d 307, 308. After en banc consideration, a majority of the judges voted to adopt the original opinion released in this case with additional reasons as follows.

Joe and Helena Oliver (Plaintiffs), individually and on behalf of their minor child, Taylor Oliver, appeal the trial court's judgment applying the Louisiana Medical Malpractice Act's cap, reducing a jury's $6,233,000.00 general damage award in their favor to the cap of $500,000.00 and denying their petition seeking to have the Medical Malpractice Act's (MMA) limitation, La.R.S. 40:1299.42(B), as applied to their claims, declared unconstitutional. The Louisiana Patient's Compensation Fund (PCF) also appeals the judgment and alleges the trial court committed error in awarding the Olivers past medical expenses and judicial interest on these expenses. Susan Duhon, the nurse practitioner whom the Medical Review Panel and jury found committed malpractice, filed a peremptory exception of res judicata, challenging the Olivers' right to appeal the trial court's judgment reducing the jury's general damage award because, as she alleges, the Olivers only appealed the denial of the declaratory judgment and not the judgment on the underlying tort claim.

We reject the positions of the PCF and Nurse Duhon and find, as the supreme court similarly held in Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985) (commonly referred to as Sibley II ), that the MMA's cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents, victims of nurse Duhon's malpractice, because of the severity [3 Cir. 2] of Taylor's physical condition when compared to other malpractice victims who receive full recovery for their injuries. We find the State failed to present sufficient evidence to show that any reasonable basis exists today to continue such discrimination by expanding the MMA's limitation on general tort liability to include nurse practitioners, some of whom are “grandfathered” from having to complete the academic studies and degree requirements found in La.R.S. 37:913(3)(a) and who choose to own and operate private healthcare clinics in the State of Louisiana. We must declare the MMA's cap, when used to limit this group of healthcare providers' general liability for damages caused to severely or catastrophically injured victims, not only discriminatory as declared in Sibley II; but that its application, in these instances, violates the Equal Protection Clause of Article I, Section 3 of the Louisiana Constitution and the right to an adequate remedy guaranteed in Article I, Section 22 of the Louisiana Constitution. We, therefore, are constitutionally mandated in this case to refuse enforcement of the cap to insulate these nurse practitioners from full liability for the harm they cause without a reasonable basis having been advanced by the State or other advocates as explained hereinafter.

FACTS AND PROCEDURAL HISTORY

Susan Duhon, a registered nurse practitioner, opened the Magnolia Clinic to provide primary care to pediatric patients in southwest Louisiana. In 1974, Ms. Duhon obtained a diploma in nursing from a hospital which later certified her as a pediatric nurse practitioner in 1977. Currently, to qualify as a nurse practitioner, a nurse is required to obtain a baccalaureate of science and a masters of science in nursing. La.R.S. 37:913(3)(a). Although Ms. Duhon did not obtain any degree in nursing from an institution of higher learning, she was allowed to escape the more rigorous requirements enacted by statute with only a high school degree, under the [3 Cir. 3] “grandfathered” exception.

Ms. Duhon became a qualified health care provider for purposes of the MMA by purchasing the requisite malpractice insurance coverage from St. Paul Fire and Marine Insurance Company.¹ Nurse practitioners are required by La.R.S. 37:913 to collaborate with a physician. Dr. Jennette Bergstedt, M.D., was the physician Ms. Duhon selected and agreed to collaborate with when providing primary care from the Magnolia Clinic, which she operated as sole owner. Louisiana Revised Statutes 40:1299.41(A)(10) also provides that “hospitals” are qualified healthcare providers under the MMA. Louisiana Revised Statutes 40:1299.41(A)(11) defines “hospital” to include any “clinics containing facilities for the examination, diagnosis, treatment or care of human illnesses.” Thus, under the MMA, the Magnolia Clinic is a qualified health care provider.

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems. Her mother brought her to the Magnolia Clinic, where she was treated exclusively by Ms. Duhon. The record indicates Taylor presented several times per month with various complaints, including: repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea, and anemia. Taylor's mother reported to Ms. Duhon that the child occasionally awakened at night screaming from abdominal pain. During Taylor's first year of life, she was treated at the Magnolia Clinic on thirty-two occasions.

Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor's condition. Instead, she repeatedly offered only verbal reassurances to Taylor's mother and prescribed over [3 Cir. 4] thirty medications, including antibiotics, to treat the child's multiple complaints and observable symptoms. Taylor's mother testified when she asked to see Dr. Bergstedt, she was told by Ms. Duhon the only time Taylor needed to see Dr. Bergstedt was in connection with admission to a hospital.

On November 7, 2001, after no progress was made in Taylor's health, her mother brought her to Women & Children's Hospital in Lake Charles, where Taylor was treated for the first time by Dr. Bergstedt. Multiple tests were ordered by the doctor, and she referred Taylor to Texas Children's Hospital for specialized care.

Eventually, Taylor's condition was diagnosed as neuroblastoma, a form of childhood cancer originating in the nerve tissue. The scant medical records maintained by the Magnolia Clinic revealed at approximately six months of age, Taylor developed severe bruising around the eyes-one of the telltale signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. However, Taylor's opportunity to live a normal life was lost when her condition was not timely diagnosed.

Taylor has survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull, and spine. Her head is abnormally large and misshapen. Her eyes are abnormally large, bulbous, and opaque with cataracts, rendering her legally blind. Her bones have become weakened and brittle, such that she cannot participate in common youth activities, and she struggles each day to overcome learning disabilities.

The Olivers pursued medical malpractice claims against Ms. Duhon and Dr. Bergstedt. Ultimately, Dr. Bergstedt was dismissed from the suit. The matter was tried before a jury, which returned a verdict against Ms. Duhon in favor of the Olivers, [3 Cir. 5] on Taylor's behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and awarded Ms. Oliver $200,000.00 for loss of consortium.

Attempting to avoid the harsh consequence of the MMA, which limits Taylor and her parents' recoverable general damages to $500,000.00 (one-twelfth of the jury's award), Plaintiffs filed a Petition for Declaratory Relief asserting the MMA is unconstitutional on several grounds. In their petition, they specifically alleged the MMA: (1) establishes an inadequate remedy in violation of Taylor's right under La. Const. art. 1, § 22; (2) precludes any remedy for Mr. and Ms. Oliver, again in violation of La. Const. art. 1, § 22; (3) violates the separation of powers provision of La. Const. art. 5, § 16, in that it constitutes a prejudgment of the compensation award in medical malpractice cases, which is the province of a district court; (4) creates an immunity in favor of health care providers in violation of La. Const. art. 3, § 12(7); and (5) denies equal protection to severely injured patients in...