Williams v. Kushner

• Decision Date: 12 April 1988
• Docket Number: No. CA-8709,CA-8709
• Parties: Prince A. WILLIAMS v. Jack KUSHNER, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 191

524 So.2d 191

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

No. CA-8709.

Court of Appeal of Louisiana Fourth Circuit.

April 12, 1988.

Writ Granted June 2, 1988.

Rene A. Pastorek, Windhorst, Pastorek & Gaudry, Gretna, for defendant-intervenor-cross-appellee, Sherman Bernard, Com'r of Ins., State of La. Sam A. LeBlanc, III, Robert J. Conrad, Jr., Richard A. Goins, Adams and Reese, New Orleans, for intervenors-cross-appellees, Louisiana State Medical Soc. and Louisiana Medical Mut. Ins. Co.

Joseph W. Thomas, Ammon L. Miller, Angelique A. Reed, New Orleans, for appellant, Prince A. Williams.

Before GULOTTA, C.J., and LOBRANO and WARD, JJ.

WARD, Judge.

We are called upon in this case to determine whether the 500,000 dollar limitation of La.R.S. 40:1299.42(B)(1) on damages recoverable for injuries caused by the malpractice of a private health care provider violates the Right to Individual Dignity and Access to Courts clauses of the Louisiana Constitution of 1974.

The unconstitutionality of the limitation was asserted in a petition for damages filed by Prince A. Williams on behalf of his minor son, Mark L. Williams, for a birth injury allegedly caused by the medical malpractice of Dr. Jack Kushner, the obstetrician who delivered the child on February 11, 1982. After Dr. Kushner admitted liability by settling for his maximum statutory liability of $100,000.00, a jury found damages totalling $1,829,000.00. ¹ In response to Williams's motion for judgment in the full amount of the jury's verdict, the Louisiana Patient's Compensation Fund asserted the 500,000 dollar limitation. After the Louisiana State Medical Society and the Louisiana Medical Mutual Insurance Company (LAMMICO) intervened to assert their interests in the case, the Trial Court conducted a lengthy hearing on the question of the constitutionality of the limitation, finally upholding it against all of Williams's constitutional challenges. Judgment was rendered in favor of Prince Williams for damages of $400,000.00, which, when added to the $100,000.00 paid by Dr. Kushner, brings the judgment to the maximum permitted by R.S. 40:1299.42(B)(1). In his appeal to this Court, Williams reasserts his claims that the limitation violates Sections 3 and 22 of Article I of the Louisiana Constitution. He also contends the Trial Court erred in refusing to impose penalties and attorney fees against the Patient's Compensation Fund for its failure to pay his allegedly undisputed claim. Additionally, the Patient's Compensation Fund appeals the amount of damages, an issue which must be addressed before the constitutional question--which becomes moot unless we affirm damages in an amount which exceeds the limitation.

DAMAGES

At the jury trial, the parties stipulated that Mark Williams was permanently injured at birth. The injury, which occurred during delivery, is damage to the brachial plexus, the nerves running from the spinal cord to the arm. As a result of the injury, Mark's right arm and hand are practically useless. The arm hangs, atrophied, at his side. He can move it only slightly from the shoulder and uses it in daily activities as one would use an inanimate object.

Expert testimony was presented at the trial to show the effect of Mark's disability upon his psychological and social development and upon his future earning capacity. Although Mark was not yet three years old at the time of trial, a psychiatrist testified that Mark was developing mental and emotional responses to his physical handicap. He was inhibited, avoiding rather than seeking challenges as would a normal two year old, and he was beginning to display signs of a poor self image. In order to overcome these problems, the psychiatrist recommended a regular course of therapeutic counseling for Mark and his parents. Experts in the fields of economics and occupational therapy and rehabilitation testified that Mark's career options will be limited by his disability. The experts did not agree as to the amount of the wage loss Mark will suffer, but the highest estimate was well over $200,000.00.

In light of all of the evidence of general damages, future medical expenses and loss of earning capacity, we conclude that Mark Williams has damages compensable by an award of at least $500,000.00. This conclusion, however, is not an affirmance of the jury verdict of $1,890,000.00, but only a finding which makes it necessary for us to consider the alleged unconstitutionality of the statutory limitation which prohibits Williams from recovering more than $500,000.00.

THE STATUTE

The challenged statute, R.S. 40:1299.42(B)(1), is part of the Louisiana Medical Malpractice Act of 1975. Among other provisions, the Act offers advantages to private health care providers (including hospitals, physicians, dentists, nurses and others) who qualify under its terms. To become a qualified provider, an individual or legal entity files with the Commissioner of Insurance proof of financial responsibility, in the form of self-insurance or a policy of malpractice liability insurance, of at least $100,000.00. Additionally, the provider pays into the Patient's Compensation Fund an annual surcharge in an amount actuarially determined by the Insurance Rating Commission. One of the advantages of qualification under the Act is the provision at issue in this case: "The total amount recoverable for any injury or death of a patient may not exceed five hundred thousand dollars plus interest and cost." R.S. 40:1299.42(B)(1). ² Within this absolute maximum, the liability of the qualified provider is limited to $100,000.00 for all malpractice claims arising from the injury or death of one person. R.S. 40:1299.42(B)(2). This limitation on the liability of the medical care provider is not challenged in the present case since Williams settled with the medical care provider.

Under these provisions, the recovery of a successful malpractice claimant cannot exceed $500,000.00: a maximum of $100,000.00 from each qualified provider who is liable, with the balance of the award paid by the Patient's Compensation Fund. The Act further provides that when, as in this case, a qualified provider settles with a claimant for the maximum of $100,000.00, liability is established. La.R.S. 40:1299.44(C)(5). Only the extent of damages remains to be determined in proceedings against the Insurance Commissioner and the Patient's Compensation Fund.

INDIVIDUAL DIGNITY CLAUSE ANALYSIS

The District Court held that the 500,000 dollar limitation did not violate the Individual Dignity Clause of the Louisiana Constitution. In analyzing the limitation under the Individual Dignity clause, Article I, Section 3, the District Court relied upon Sibley v. Board of Supervisors, 477 So.2d 1094 (La.1985) (on rehearing), in which the Court considered a challenge to the constitutionality of R.S. 40:1299.39(B), the section of the Medical Malpractice Act limiting awards against the State to $500,000.00. We agree with the District Court that the Sibley standard is appropriate for analysis of R.S. 40:1299.42(B)(1).

Sibley expressly rejected the traditional three-tier scrutiny of federal equal protection analysis in favor of a more meaningful test which reflects the intent of the drafters of the Louisiana Constitution of 1974. The Sibley test is tailored to the language of the Individual Dignity clause which, in effect, contains its own standards of analysis:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

La. Const., Art. I, Sec. 3.

For purposes of Individual Dignity clause analysis, Sibley found that an injured malpractice claimant is an individual who has been discriminated against because of physical condition.

The law on its face is designed to impose different burdens on different classes of persons according to the magnitude of damage to their physical condition. The statute creates two classes: one, a group of malpractice victims each of whom has suffered damage that would oblige a defendant under our basic law to repair it by paying in excess of 500,000 dollars; another, a class consisting of victims whose damages would not require an award over this amount to make individual reparation. Victims in the former class are prevented from recovering for all their damage, while those in the latter class are allowed full recovery. Sibley, 477 So.2d at 1108.

Thus, Sibley has foreclosed the issue of whether there has been discrimination against a person because of physical condition; the remaining question is whether the statute is unconstitutional, violating the Individual Dignity clause, because it "arbitrarily, capriciously, or unreasonably discriminates."

Sibley makes this determination by requiring the proponent of the statute to show that "there is good reason for the statutory classification, that is, that the legislative classification substantially furthers a legitimate state purpose." Id. at 1109. Apparently, the rationale of Sibley is that if there is good reason for the classification and if the classification substantially furthers a legitimate state purpose, then it is not arbitrary, capricious, or unreasonable.

In addition to this new interpretation of the appropriate standard for Louisiana equal protection analysis, Sibley also announced a departure from the longstanding rule that legislation is presumed constitutional with the opponent carrying the burden of proving that a statute violates the constitution. "When the statute classifies persons on the basis of ... physical condition, ... its enforcement shall be refused unless the state or other advocate of the...