Waggoner v. Gibson

• Decision Date: 29 September 1986
• Docket Number: No. CA 3-84-1725-R.,CA 3-84-1725-R.
• Citation: 647 F. Supp. 1102
• Parties: Dennis C. WAGGONER, as Guardian of the Estate and Person of John M. Waggoner v. Burney GIBSON, M.D. and Presbyterian Medical Center, d/b/a Presbyterian Hospital of Dallas.
• Court: U.S. District Court — Northern District of Texas

647 F. Supp. 1102

Dennis C. WAGGONER, as Guardian of the Estate and Person of John M. Waggoner v. Burney GIBSON, M.D. and Presbyterian Medical Center, d/b/a Presbyterian Hospital of Dallas.

No. CA 3-84-1725-R.

United States District Court, N.D. Texas, Dallas Division.

September 29, 1986.

G. Duffield Smith, Jr. and Jess C. Rickman, III, Gardere & Wynne, Dallas, Tex., for plaintiff.

William T. Hankinson, Thompson & Knight, Dallas, Tex., for Gibson.

Gerald W. Benson, Tobolowsky, Prager & Schlinger, Dallas, Tex., for Presbyterian Hosp.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a medical malpractice case.

It is undisputed that the plaintiff, John Waggoner, suffered severe injuries — permanent brain damage that will leave him totally disabled for the rest of his life — as the result of events which took place during a "routine" operation on his knee in May of 1983. Through his father and guardian, Dennis Waggoner, he seeks substantial damages.¹

However, because of the Medical Liability and Insurance Improvement Act, Tex. Rev.Civ.Stat.Ann. art. 4590i, sections 11.02-11.04 (Vernon Supp.1986) ("the Act"), Waggoner will not be able to recover more than $500,000 — even if he establishes, at trial, that the negligence of the defendants caused his injuries (a matter that is denied, and vigorously contested, by both defendants).

For the reasons explained below, this Court — like the three intermediate appellate courts of Texas that have considered this issue — holds that the Act is unconstitutional under both the federal and state constitutions. Accordingly, Waggoner — and other plaintiffs in medical malpractice cases in Texas — will not, if their evidence warrants, be limited to a maximum recovery of $500,000.

1. The Facts

John Waggoner was admitted to Presbyterian Hospital in Dallas on May 5, 1983, for non-emergency surgery on his right knee. That evening, the defendant Burney Gibson, a board-certified anesthesiologist, met with Waggoner. It is disputed whether or not Dr. Gibson explained to Waggoner the "specific risks, hazards, and complications" involved with the anesthesia to be used, particularly in view of Waggoner's asthmatic condition. In the operating room on the following day, Dr. Gibson administered a spinal block anesthetic — using, in part, respiratory depressants, including morphine, valium, fentanyl, and droperidol. Shortly after the operation began, Waggoner's breathing ceased and he experienced a cardiac arrest. Although he was resuscitated in 6-10 minutes, Waggoner remained in a coma for several months. He suffered severe and irreversible damage to his brain and nervous system, and is totally disabled.

This malpractice suit was filed on October 9, 1984. There is diversity jurisdiction under 28 U.S.C. section 1332(a)(1). Waggoner alleges that Dr. Gibson was negligent "before, during and after the anesthesia procedure." He also claims that the defendant Presbyterian Hospital is "vicariously liable for the negligence of Dr. Gibson" because the anesthesiologist was "the apparent or ostensible agent of Presbyterian Hospital." Because he will be totally disabled for life, Waggoner seeks to recover damages well in excess of $800,000 from the defendants. (See footnote 1.)

2. The Act

However, the Texas legislature has placed a $500,000 limit on recovery of damages by plaintiffs in malpractice suits in this state, including John Waggoner. In doing so, the legislature "found" that the number of malpractice suits has increased "inordinantly," as has the amount of money paid by insurers in judgments and settlements; and that this "situation has created a medical malpractice insurance crisis in the State of Texas." Act, section 1.02(a)(1), (3), & (5). The actual existence of such a crisis in Texas is, however, a matter of some debate.²

Although the Act states an intention not to "unduly restrict a claimant's rights any more than necessary to deal with the crisis," Act, section 1.02(b)(3), it raises no distinctions between malpractice victims to whom $500,000 would be a boon and those to whom $500,000 would barely be a beginning. See Act, section 11.02; see also Act, section 11.03 (alternative limitation in case 11.02 is stricken). Its statement of purpose does not explain why the only legislative response to the insurance "crisis" is to limit the recoveries of malpractice claimants with the most meritorious and substantial suits, and is silent as to other conceivable avenues of investigation³ — including questions of whether the increases in insurance cost are, in fact, caused solely by increased litigiousness among patients rather than the quality of investments made by the insurance industry, and whether increases in premiums are, in fact, warranted by existing market conditions.⁴ Nor does the Act address only non-meritorious claims. The limitation of damages that may be recovered in all malpractice cases, regardless of merit, is the sole response of the legislature to the putative "crisis."

3. The Law

Each Texas court considering the Act has found its limitations on recovery to constitute impermissible limitations on the constitutional protections afforded malpractice litigants. In Baptist Hospital of Southeast Texas v. Baber, 672 S.W.2d 296 (Tex.Civ.App. — Beaumont 1984, writ ref'd n.r.e.), the court found that the Act violated equal protection as "the limitation of recovery does not provide adequate compensation to patients with meritorious claims; on the contrary, it does just the opposite for the most seriously injured claimants. It does nothing toward the elimination of non-meritorious claims." Id. at 298, quoting Arneson v. Olson, 270 N.W.2d 125, 135-36 (N.D.1978). In Detar Hospital, Inc. v. Estrada, 694 S.W.2d 359 (Tex.Civ.App. — Corpus Christi 1985, no writ), the court found that the Act violated the equal protection clauses of both the federal and state constitutions, as well as the "open-courts" provision of the Texas constitution. See id. at 365-66. Finally, the court in Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739 (Tex.Civ.App. — San Antonio 1985, no writ), followed Baber and extended the finding of unconstitutionality to "a corporation operating a pharmacy even if it qualifies as a health care provider" under the Act. Although the Texas Supreme Court has not yet addressed this issue, each Texas court court considering the constitutionality of the Act has, therefore, found it invalid.

Of the six other states which have considered the constitutionality of malpractice limitation statutes, two have upheld the statutes — but four have joined Texas in finding them to be invalid. See Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (1985) (upholding statute); Johns on v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585, 598-601 (1980) (upholding statute); cf. Carson v. Maurer, 120 N.H. 925, 941-43, 424 A.2d 825, 836-38 (1980) (striking statute down); Arneson v. Olsen, 270 N.W.2d 125, 135-136 (N.D.1978) (striking statute down); Simon v. St. Elizabeth Medical Center, 3 Ohio Op.3d 164, 166, 355 N.E.2d 903, 906-07 (1976) (striking statute down); Wright v. Central DuPage Hospital Ass'n, 63 Ill.2d 313, 347 N.E.2d 736 (1976) (striking statute down).

(a) Equal Protection

In the absence of a resolution of this conflict from the United States Supreme Court,⁵ or of a determination by the Texas Supreme Court,⁶ this Court will follow the unanimous view among the Texas appellate courts and the more persuasive reasoning of the state courts in New Hampshire, North Dakota, Ohio, and Illinois. Accordingly, the Texas Act is unconstitutional because it violates the equal protection clauses of both the federal and the state constitutions. U.S. CONST. amend. XIV; TEX. CONST. art. 1, section 3.

In subjecting malpractice damage limitations to equal-protection analysis, courts apply a rational relationship test with due-process underpinnings. Because classifications based on the right to recover in tort do not involve fundamental textual constitutional rights or suspect classes, stricter standards of review are not appropriate; however, application of the rational relationship test is not "an all but certain indication of validity" for malpractice statutes.⁷ The applicable equal-protection standards require "some rational relationship to legitimate state purposes." San Antonio School District v. Rodriquez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973); Silva v. Vowell, 621 F.2d 640, 647 (5th Cir.1980); Baker v. Wade, 553 F.Supp. 1121, 1143 N.D.Tex.1982), supplemented, 106 F.R.D. 526 (N.D.Tex.1985), appeal dism'd, 743 F.2d 236 (5th Cir.1984), re v'd en banc on other grounds, 769 F.2d 289 (5th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 3337, 92 L.Ed.2d 742 (U.S. July 7, 1986). The test requires, then, a "legitimate state interest" to rationalize a denial of equal protection. See Baker v. Wade, 553 F.Supp. at 1145. This Court concurs with the three Texas courts and with the reasoning in Arneson, 270 N.W.2d at 135-36, that limiting the recovery of the most deserving victims of malpractice is not a legitimate interest of the state, and, moreover, that this goal deprives such victims of due process of law.

The legitimacy of imposing recovery limitations on only the most severely injured victims of malpractice⁸ is undermined by a lack of a societal quid pro quo for the displacement of the victims' common-law right of recovery. See Baber, 672 S.W.2d at 298 and Estrada, 694 S.W.2d at 366; see also Arneson, 270 N.W.2d at 135 (North Dakota), Carson, 424 A.2d at 837 (New Hampshire), Simon, 355 N.E.2d at 909-910 (Ohio), Wright, 347 N.E.2d at 742-43 (Illinois); see generally Duke Power v. Carolina Environmental Study Group, 438 U.S. 59, 88, 98 S.Ct. 2620, 2638, 57 L.Ed.2d 595 (1978) (due process may require that a legislatively enacted compensation scheme provide a reasonable substitute remedy for displacing a remedy at common law); New York...