Seoane v. Ortho Pharmaceuticals, Inc.

• Decision Date: 29 June 1979
• Docket Number: Civ. A. No. 77-3187.
• Parties: Manuel S. SEOANE, etc. v. ORTHO PHARMACEUTICALS, INC. et al.
• Court: U.S. District Court — Eastern District of Louisiana

472 F. Supp. 468

Manuel S. SEOANE, etc. v. ORTHO PHARMACEUTICALS, INC. et al.

Civ. A. No. 77-3187.

United States District Court, E. D. Louisiana.

June 29, 1979.

Salvador E. Gutierrez, Jr., Terrence J. Hand, New Orleans, La., for plaintiff.

H. Martin Hunley, Jr., New Orleans, La., for defendants.

MEMORANDUM OPINION

EDWARD J. BOYLE, Sr., District Judge:

The court previously denied the motion of defendant, Dr. Frederick A. Pou (hereinafter Dr. Pou) for summary judgment, insofar as it sought dismissal of plaintiff's action, but stayed the action pending the submission of plaintiff's proposed complaint to a medical malpractice review panel (hereinafter review panel) pursuant to LSA-R.S. 40:1299.41 et seq. Our reasons for such action follow.

Plaintiff is seeking damages for the wrongful death of his wife, which allegedly occurred as a result of her ingestion of a contraceptive pill prescribed by Dr. Pou. All other parties defendant have previously been dismissed by the court. See Record Documents Nos. 9 and 34. Dr. Pou has moved for a summary judgment dismissing plaintiff's action for failure to comply with the provision of the Louisiana medical malpractice statute requiring pre-suit review of all malpractice claims against covered health care providers by a review panel. LSA-R.S. 40:1299.41 et seq. In opposition to the motion, plaintiff has leveled a barrage of constitutional challenges at the legislation. Plaintiff has also challenged the timeliness of Dr. Pou's motion.

Under LSA-R.S. 40:1299.41 et seq., no lawsuit against a covered health care provider (which term includes doctors, registered nurses and hospitals, among others, who elect to participate in the program) or his insurer may be commenced in any Louisiana court before the claimant's proposed complaint has been presented to a review panel composed of an attorney, two physicians chosen respectively by plaintiff and by defendant, and a third physician chosen by the other two physician members of the panel.

The complainant is required to initiate the procedure by filing a copy of his proposed complaint with the Louisiana Commissioner of Insurance, together with a request for review of his claim by the review panel. The commissioner forwards the complaint to the Clerk of the Louisiana Supreme Court, who prepares a list of five attorneys within the parish which would be the proper venue for a lawsuit against the health care provider. From this list, the parties select the attorney-panelist, who acts as chairman and advisor to the panel, but does not vote. The complainant must notify the attorney-chairman and the defendant-to-be of his choice of a physician-panelist within thirty days after certification by the commissioner of insurance of the filing of a request for a review panel. After complainant selects a physician-panelist, the defendant has ten days to select a physician-panelist. The two physicians then select a third panelist.

The panel bases its decision upon a review of documentary evidence only. It determines whether the accused health care provider has complied with the standard of care which is statutorily defined, whether any such departure from the standard of care was a factor in plaintiff's damages and, if so, whether plaintiff suffered any disability or impairment. In the event of a finding of liability, the panel makes no finding with respect to damages. The panel issues a written report which is admissible in evidence, but is not conclusive, in a subsequent court trial of the complaint. At trial, any party may call any member of the review panel to testify and, if called, such member must testify. The costs of the review panel procedure are borne by the prevailing party, except that if a prevailing claimant is unable to pay the costs, they are to be borne by the health care provider subject to reimbursement out of any money judgment subsequently obtained by the claimant. The filing of a request for review of a medical malpractice claim suspends the prescriptive period for filing suit until 90 days following issuance of the opinion of the review panel. A claimant may file a lawsuit regardless of whether the opinion of the review panel is favorable or unfavorable to his claim.

In opposition to Dr. Pou's motion, plaintiff asserts that the mandatory screening by a review panel deprives him of a federal forum and, therefore, should not be required in a diversity case. Alternatively, he alleges that the review panel provision deprives him of equal protection because it results in:

1. Unequal treatment of medical malpractice defendants according to whether they are "covered health care providers" under the statute;

2. Unequal treatment of victims injured by medical malpractice as contrasted with victims injured by other types of torts;

3. Preferential treatment for doctors as opposed to other groups of professionals;

4. Unequal treatment of victims of medical malpractice who suffer serious injuries (i. e., those which would be compensable by monetary damages in excess of the statutory maximum of $500,000) as opposed to victims of medical malpractice who suffer less serious injuries;

5. Submission of plaintiff's claims to a panel of experts who have a personal interest in reducing medical malpractice insurance premiums by suppressing meritorious claims;

6. Compulsory arbitration in violation of Louisiana law;

7. Delegation of authority by the legislature without proper definition of the standards to be applied; and

8. An unreasonable classification because it has not been demonstrated that the alleged medical malpractice insurance crisis is genuine or that the malpractice review panel will alleviate the crisis either by reducing the number of frivolous lawsuits or by encouraging out-of-court settlements.

Plaintiff also alleges that the review panel procedure violates his right to due process because it results in:

1. Compulsory arbitration;

2. Incurring of additional expense in litigating before the review panel;

3. Prevention of immediate access to the courts;

4. Causing a plaintiff to be bound by the opinion of the review panel and by an expert plaintiff did not select;

5. Causing plaintiff to be deprived of the right of cross examination;

6. Deprivation of plaintiff's right to choose an attorney to represent him; and

7. Consideration by the review panel of evidence which would be inadmissible at trial, namely hearsay evidence.

Plaintiff also contends that the procedure of submitting medical malpractice claims to the review panel deprives him of his right to a jury trial because nonjudicial members of the review panel allegedly exercise a judicial function and because the admissibility of the panel's opinion at trial, if it is unfavorable to the plaintiff, lessens the strength of plaintiff's case to the jury.

Finally, plaintiff claims that defendant's motion for summary judgment is untimely and should not be considered by the court.

Prior to a consideration of the points raised by plaintiff, we note that the Supreme Court of Louisiana has sustained the review panel legislation against constitutional challenges similar to those asserted by plaintiff. See Everett v. Goldman, 359 So.2d 1256 (La.1978). While we recognize that we are not bound by the Louisiana Supreme Court's disposition of the plaintiff's federal constitutional challenges, nevertheless, we are persuaded by the Court's well-reasoned decision in Everett. In addition, numerous other federal and state court decisions have upheld the Louisiana review panel procedure. See Dent v. City of New Orleans, Civil Action No. 78-1232 (E.D.La.1979); Rose v. Ochsner Clinic, Civil Action No. 78-507 (E.D.La.1978); Vincent v. Voorhies, 359 So.2d 1129 (La.App. 3 Cir. 1978); Knepper v. State Through Department of Health and Human Resources Administration, 359 So.2d 1127 (La.App. 3 Cir. 1978); Butler v. Flint-Goodridge Hospital, 354 So.2d 1070 (La.App. 4 Cir. 1978).

I. PLAINTIFF'S CONTENTION THAT THE LOUISIANA STATUTE NEED NOT BE APPLIED BY FEDERAL COURT IN DIVERSITY CASES

The federal courts which have considered this question, with one exception, have concluded that medical malpractice review panel provisions of state laws are substantive rules of law of the forum which must be applied by a federal court in a diversity case. See Woods v. Holy Cross Hospital, 591 F.2d 1164 (5 Cir. 1979) Florida; Davison v. Sinai Hospital of Baltimore, Inc., 462 F.Supp. 778 (D.Md.1978) Maryland; Wells v. McCarthy, 432 F.Supp. 688 (E.D.Mo.1977) Missouri; Marquez v. Hahnemann Medical College and Hospital, 435 F.Supp. 972 (E.D.Pa.1976) Pennsylvania; and Flotemersch v. Bedford County General Hospital, 69 F.R.D. 556 (E.D.Tenn.1975) Tennessee.

The United States District Court for the District of Rhode Island reached a contrary conclusion in Wheeler v. Shoemaker, 78 F.R.D. 218 (D.R.I.1978). However, the Rhode Island statute under consideration established a medical review panel which commenced its activities only after suit had been filed in state court. The federal court characterized such review panel as an "adjunct of the state court rather than an independent agency." We distinguish Wheeler on that basis. Accordingly, we find that, if it is constitutional, we must apply the Louisiana statutory review panel provision to this case.

II. PLAINTIFF'S CONTENTION THAT THE LOUISIANA STATUTE DEPRIVES HIM OF EQUAL PROTECTION

In ruling upon plaintiff's equal protection and due process attacks upon the statute, we note that the parties have not cited, and we have not located in our independent research, any case decided by the Fifth Circuit or the United States Supreme Court dealing with the Louisiana medical review panel provisions. In the absence of a controlling precedent, the parties have cited cases from other jurisdictions dealing with other statutory schemes.¹ When possible, we have compared the statutory schemes in those states with the Louisiana act under scrutiny. We have concluded that, for various...