Courtney L. Davenport
Louisiana’s medical malpractice damages cap violates the state constitution’s equal protection and adequate remedy guarantees, a state trial court held, citing a recent Louisiana appellate court opinion striking the cap in suits against nurse practitioners. (Arrington v. Galen-Med, Inc., No. 97-4329 (La., Calcasieu Parish Dist. Sept. 9, 2011).)
“The fact that non-cap states and states with caps that limit only noneconomic damages can function without facing a medical insurance crisis or a crisis in medical care is compelling proof that Louisiana’s scheme, which admittedly discriminates only against the most severely injured victims of medical malpractice, is no longer the ‘reasonable alternative remedy’ our constitution requires,” Judge Clayton Davis wrote.
Although the plaintiffs’ lawyers are happy with the ruling, they expect the case to eventually reach the Louisiana Supreme Court.
“So far, it has taken 16 years to get to this point. [The defendant] has done everything in its power to delay this,” said Oliver Schrumpf of Sulphur, Louisiana, who represents the plaintiffs. “I can’t begin to tell you the number of motions, objections, writ requests, and appeals they have filed to avoid this ruling. They will keep fighting.”
Louisiana’s $500,000 cap on all damages is the most comprehensive in the nation—similar laws typically cap noneconomic damages only—and hasn’t been revised since its inception in 1975. Experts cited by appellate courts have estimated the value in today’s dollars at between $146,000 and $160,000.
The case involves two wrongful death suits in which the plaintiffs—the decedents' family members—received judgments in excess of the cap. The trial court heard both cases. Although the court agreed with the plaintiffs that they lacked an adequate remedy because they were entitled to damages in excess of $500,000, the court upheld the cap as constitutional.
The cases were consolidated for appeal and went through several rounds of court hearings as an appellate court tried to strike down the cap. The state high court vacated that decision.
The plaintiffs received a boost last month when the en banc appellate court held in another case that the cap violates equal protection and adequate remedy rights in suits against nurse practitioners. The ruling confirmed an earlier opinion by a panel of the court, which had been vacated and remanded by the state high court because it didn’t “reflect a majority vote on each of the issues presented.” (Oliver v. Magnolia Clinic, 2011 WL 3820365 (La. App. Aug. 31, 2011).)
Although Oliver was limited to nurse practitioners, it relied on much of the same evidence introduced in the Arrington case, including expert opinions and statistics showing that there is no evidence that the cap has increased the number of health care providers or decreased insurance premiums. In fact, many insurers have been able to pay all claims from their investment income alone, without dipping into the funds they receive from premium payments.
Judge Davis found that because most of the Oliver findings apply to all health care providers, not just nurse practitioners, the ruling of unconstitutionality—at least for the equal protection and adequate remedy guarantees—applies to the cap in general.
The plaintiffs’ attorneys are not surprised that the court applied Oliver. “The court in Oliver essentially stated what the rule was: The burden is on the defendant to prove the cap is justified under a reasonable basis,” said Valerie Nannery, an attorney with the Center for Constitutional Litigation, who worked on the case. “Even though Oliver doesn’t clearly mandate the same result in Arrington, the same analysis applies.”
It is unclear what the Louisiana Supreme Court will do if the defendants appeal the trial court’s decision. So far, it has used various arguments to avoid the issue.
“The supreme court is hoping the legislature will just increase the cap to an adequate amount, but that is not a good way to resolve this case,” said Schrumpf. “The legislature didn’t hear from any witnesses in these cases. How can the legislature set the damages? And how can they set them 35 years in advance?” Rather than deciding the case based only on the adequate remedy guarantee, he and Nannery say, the court should evaluate whether the cap is constitutional on other grounds as well.
“No court has ruled in Louisiana on the separation of powers, special legislation, and due process issues, so we will continue to make that argument,” said Nannery. “Hopefully, we’ll get a ruling in our favor so our clients can finally have peace with this matter.”