Oliver v. Magnolia Clinic

• Decision Date: 17 November 2010
• Docket Number: No. 09-439.,09-439.
• Citation: 51 So.3d 874
• Parties: Joe OLIVER, et al. v. MAGNOLIA CLINIC, et al.
• Court: Court of Appeal of Louisiana — District of US

51 So.3d 874

Joe OLIVER, et al.

v.MAGNOLIA CLINIC, et al.

No. 09-439.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 2010.

Todd A. Townsley, Marcus P. LaCombe, The Townsley Law Firm, Lake Charles, LA, for Plaintiffs/Appellants Joe and Helena Oliver.

Richard B. Cappel, Raggio, Cappel, et al., Lake Charles, LA, for Defendants/Appellees Magnolia Clinic and Susan Duhon.

John Elliott Baker, Covington, LA, for Intervenor/Appellee State of Louisiana.

Nadia Marie de la Houissaye, Longman Russo, Lafayette, LA, for Intervenor/Appellant Louisiana Patients Compensation Fund.

Guice Anthony Giambrone, III, Kelly A. Dugas, Metairie, LA, Amicus Curiae Louisiana Association of Nurse Practitioners.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.

COOKS, Judge.

**1 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 six million, two hundred and thirty-three thousand dollar ($6,233,000) jury general damage award in their favor to five hundred thousand dollars ($500,000) and denying their petition seeking to have the MedicalMalpractice Act's (MMA) limitation, La.R.S. 40:1299.42(B), as applied to their claims, declared unconstitutional. The Louisiana Patients' Compensation Fund (PCF) also appeals the judgment and alleges the 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 position of the PCF and Nurse Duhon for reasons that follow. We also find, as the Supreme Court similarly held in Sibley v. Board of Sup'vrs of Louisiana State Univ., 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 of Taylor's physical condition when compared to other malpractice victims who receive full recovery for their injuries. We further 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 **2 "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 Act'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. See Sibley II, 477 So.2d at 1103. We, therefore, are constitutionally mandated in this case to refuse enforcement of the cap to insulate these 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.¹

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 "grandfathered" exception.

Ms. Duhon became a qualified health care provider for purposes of the MMA bypurchasing the requisite malpractice insurance coverage from St. Paul Fire and **3 Marine Insurance Company.² 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.

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 (32) 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 thirty(30)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.

**4 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 (6) 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 (90) percent chance of an event free survival. However, Taylor's opportunity to live a normal life was lost when her condition was not timely identified.

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, 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 $33,000.00for loss of consortium and Ms. Oliver $200,000.00.

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 **5 Art. I, § 22; (2) precludes any remedy for Mr. and Ms. Oliver, again in violation of Art. I, § 22; (3) violates the separation of powers provision of Art. V, § 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 Art. III, § 12(7); and (5) denies equal protection to severely injured patients in violation of Art. 1, § 3. They prayed that the court declare the cap unconstitutional.

The State of Louisiana and the Louisiana Patients Compensation Fund (PCF) intervened in the suit to challenge Plaintiffs' attack on the constitutionality of the MMA. The trial court rendered written reasons for judgment after conducting a full Sibley II hearing. Initially, the trial court declared the cap constitutional in all respects except its inclusion of nurse practitioners as qualified providers. The trial court found there was no evidence demonstrating that there "was a crisis in the field of nurse practitioners either at the time of the passage of the Act or today." Further, he observed the State offered no evidence to show a need for including nurse practitioners in the class of healthcare providers protected by the MMA. He concluded, while the cap was arguably necessary in 1975 (when the MMA was adopted) for doctors and hospitals, extension of the Act to include nurse practitioners does not logically follow without evidence to show "a reasonable basis" exists for limiting their liability.

Ms. Duhon and the State filed a Motion for New Trial/Reconsideration on the Issue of Constitutionality, alleging the trial court erred in declaring "the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41,...