Williams v. Kushner

• Decision Date: 12 September 1989
• Docket Number: 88-C-1188,Nos. 88-C-1153,s. 88-C-1153
• Citation: 549 So.2d 294
• Parties: Prince A. WILLIAMS v. Jack KUSHNER, et al. 549 So.2d 294, 58 U.S.L.W. 2226
• Court: Louisiana Supreme Court

Page 294

549 So.2d 294

Prince A. WILLIAMS v. Jack KUSHNER, et al.

Nos. 88-C-1153, 88-C-1188.

549 So.2d 294, 58 U.S.L.W. 2226

Supreme Court of Louisiana.

Sept. 12, 1989.

Concurring Opinion by Justice

Calogero Sept. 22, 1989.

Rehearing Denied Oct. 19, 1989.

Joseph Thomas, Angelique Reed, Ammon Miller, Jr., New Orleans, for Prince A. Williams.

Stephen Sullivan, New Orleans, Rene Pastorek, Gretna, for La. Patient's Compensation Fund and Sherman Bernard.

Sam LeBlanc, III, Robert Conrad, Jr., Richard Goins, Adams & Reese, New Orleans, for Louisiana State Medical Soc. and Louisiana Medical Mut. Ins. Co.

Carter G. Phillips, David Orentlicher, Sidley & Austin, Sam A. LeBlanc, III, Robert J. Conrad, Jr., Richard A. Goins, Adams & Reese, New Orleans, Kirk B. Johnson, Martin J. Hatlie, amicus curiae, for the American Medical Ass'n.

David W. Robertson, Baton Rouge, amicus curiae, for The Ass'n of Trial Lawyers of America and The Louisiana Trial Lawyers Ass'n.

S. Sanford Levy, New Orleans, amicus curiae, for S. Sanford Levy.

Robert L. Roland, Felix R. Weill, Katherine Long Gilmore, Baton Rouge, amicus curiae, for The Louisiana Hosp. Ass'n and Louisiana Hosp. Ass'n Ins. Trust.

Herbert J. Mang, Jr., Glen Scott Love, Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, amicus curiae, for the Louisiana Dental Ass'n.

Allan Berger, Berger & Forstall, James A. Wysocki, Stephanie Hrachovy, New Orleans, Attys. filing amicus curiae.

PER CURIAM.

A writ was granted principally to consider the constitutionality of the $500,000 "cap" on recovery for a person injured by medical malpractice. On closer analysis following briefing and argument, it has become apparent that the recovery limitation is not presented in the context originally thought. A more careful study has revealed that there are three issues in these proceedings, one of which is moot.

The three issues are as follows:

(1) The constitutionality of the $400,000 limitation on recovery from the Patient's Compensation Fund. ¹

(2) The constitutionality of the $100,000 limitation on recovery against a qualified health care provider. ²

(3) The constitutionality of denying the costs of future medical care and related benefits to a patient injured in a private facility and filing a claim prior to September 1, 1984. ³

This opinion decides the first and third issues, but for reasons discussed below, the second issue is not before the court.

Suit was filed in January, 1983 by Prince A. Williams to recover damages for permanent injuries sustained by his son, Mark Williams, at his birth in a private hospital. The attending doctor, Dr. Jack Kushner, settled with plaintiff prior to trial for $100,000. ⁴ Plaintiff was given a jury trial ⁵ on quantum, and there was an unitemized verdict for $1,829,000.

After a Sibley hearing, ⁶ the trial court reduced the damages to the statutory limit of $400,000 and entered judgment for plaintiff against the Patient's Compensation Fund for $400,000 plus legal interest and costs. The court of appeal affirmed the judgment of the trial court. ⁷ Writs were granted to review the decision. ⁸

The record supports the jury's award of damages in excess of $500,000. Mark Williams has a useless right arm. He was diagnosed as having Erb's palsy and Klumke's palsy. It was stipulated that the injury occurred at birth and that the damage is permanent. Because of balance problems, Mark's physical activity is restricted: he has a poor self image and little self confidence. At every stage of his development, and particularly during adolescence, he will suffer from his handicap. He will never be able to engage in any activity requiring two hands or two arms. Discounted to present value, his future loss of earnings was estimated at $193,736. There was testimony that both Mark and his parents will need extensive psychological counseling to enable them to cope with his handicap.

The Louisiana statutory scheme places a $100,000 maximum on the health care provider's liability and provides a $400,000 supplemental amount available to each injured person, payable from the state operated Patient's Compensation Fund, thus limiting recovery to a total of $500,000. Plaintiff's suit attacks the total, claiming that the PCF should be cast for the entire amount (less $100,000) awarded by the jury.

I. Recovery Against the Patient's Compensation Fund.

For damages other than future medical care and related benefits, the $400,000 limitation on recovery from the Patient's Compensation Fund is a valid restriction. As the Supreme Court of Kansas observed:

"Because the Fund is a state-run insurance company, the State is free to limit its liability in any amount it wishes. The issue presented here is one of limiting the liability of a tortfeasor, namely the negligent health care provider." Kansas Malpractice Victims v. Bell, 243 Kan. 333, 757 P.2d 251, 256 (1988) (emphasis added). ⁹

The legislature had the power to establish the fund and provide a supplemental recovery for those more seriously injured by medical malpractice. This affirmative act is not subject to the Sibley constitutional analysis. The fund is not a negligent party and does not have the status of an Article 2315 defendant.

Thus, there is no constitutional infirmity in the state's providing for payment of $400,000 in damages to plaintiff on behalf of his minor son, and plaintiff has no constitutional claim for a greater amount. See Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

II. Recovery Against the Health Care Provider.

In view of the conclusion reached on the first issue, it is apparent that the fundamental question involved is: what about the statutory limit of $100,000 damages payable by the doctor? This is indeed a vexing and difficult issue, as witness the disparate results reached in other states. To illustrate, Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (1985), upheld a $250,000 California limit on noneconomic damages; while Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987) declared a Florida statute placing a $450,000 cap on noneconomic losses unconstitutional. For a more or less complete summary of treatment by the various states, see Appendix II.

Rephrased the issue here would be: Can the State of Louisiana limit a health care provider's liability to a maximum of $100,000 in a general scheme governing recovery for medical malpractice, which includes a limitation on total recovery of $500,000, without violating the equal protection and adequate remedy clauses of the Louisiana Constitution?

The answer must await another day; the issue is not before the court. Dr. Jack Kushner, the treating physician, was released from the suit prior to trial. Because of the settlement with Dr. Kushner, the health care provider, his liability is a moot question.

III. Future Medical Care and Related Benefits.

While the third issue was not assigned as error in the precise language used here, the issue is implicit in the arguments urged by relator. Treatment of the question of medical benefits is appropriate at this time.

In 1984, Act 435 enacted LSA-R.S. 40:1299.43 to provide that the cost of "future medical care and related benefits" is excluded from the $500,000 limitation on recovery in private sector claims. In 1985, the same exception was made with regard to malpractice claims against the state. ¹⁰ However, the 1984 private sector act applies only to malpractice claims filed "on or after September 1, 1984," and would exclude the present claim. The 1985 act applies to "pending claims and litigation." Thus, if Mark Williams had been injured at birth in a state facility under the care of a state employee, his future medical expenses could be recovered. Because he was born in a private hospital under the care of a private physician, these expenses are legislatively placed in a different category. This anomaly is a clear violation of the Louisiana constitutional guarantee of equal protection. ¹¹

Despite wording to the contrary, Act 435 of 1984 must be reformed to apply to claims and litigation pending when it was passed. Plaintiff here is entitled to a judgment for the benefits provided.

For the foregoing reasons, the judgment of the court of appeal is amended to award plaintiff any future medical expenses and related benefits according to LSA-R.S. 40:1299.43. ¹² The judgment of the court of appeal, which upheld a $400,000 award against the Patient's Compensation Fund, is affirmed as amended.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns additional reasons.

COLE, J., additionally concurs to join in the reasons assigned by LEMMON, J.

CALOGERO, J., additionally concurs and assigns reasons.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

DIXON, C.J., and DENNIS, J., dissent with reasons.

APPENDIX I

LSA-R.S. 40:1299.43 provides:

A. (1) In all malpractice claims filed with the commissioner of insurance which proceed to trial, the jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits and the amount thereof.

(2) In actions upon malpractice claims tried by the court, the court's finding shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof.

(3) If the total amount is for the maximum amount recoverable, exclusive of the value of future medical care and related benefits, the cost of all future medical care and related benefits shall be paid in accordance with this Section.

(4) If the total amount is for the maximum amount recoverable, including the value of the future medical care and related benefits, the amount of future medical care and related benefits shall be deducted from the total amount and shall be paid from the patient's compensation fund as incurred and presented for payment. The remaining portion of the judgment shall be paid in accordance with R.S. 40:1299.44(A)(7)...