LA courts find malpractice damages cap inapplicable to EMTALA claims and unconstitutional
Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
While our nations' emergency physicians were considerate enough to hold their annual scientific assembly in weather-ravaged New Orleans, the courts in the Bayou dealt the house of medicine its version of a tsunami and trailing hurricane in two recent decisions overturning the state's cap on malpractice damage awards.
First, in Jeff v. Universal Health Services, a Louisiana federal district court held that damages cap in Louisiana's Medical Malpractice Act (LMMA) did not apply to damage claims from lawsuits under Emergency Medical Treatment and Active Labor Act (EMTALA).1 Second, in Arrington v. ER Physicians Group, APMC, a Louisiana state appeals court declared the cap unconstitutional and inapplicable to any medical malpractice claim, not just EMTALA claims.2
Jeff v. Universal Health Services — EMTALA litigation
Morris Jeff had a persistent cough, felt weak, short of breath, and was having difficulty walking. Around dinner time he went to the Pendleton Memorial Hospital emergency room in New Orleans. Allegedly, Mr. Jeff was not seen by a triage nurse, was told the wait would be several hours, and his request to see a doctor was refused. He returned to the ED the next morning and was admitted, but died within 72 hours.
The family (plaintiffs) sued the hospital in federal court under the EMTALA, for failure to provide a medical screening examination and any necessary stabilizing treatment.3
The hospital sought summary judgment on whether any damages recoverable under the EMTALA claim would be limited by the LMMA.4 Louisiana passed tort reform in 1975 limiting a physician's malpractice exposure to a maximum of $100,000, and established a state Patient Compensation Fund (the Fund) to provide a maximum of another $500,000 to satisfy malpractice claims.4
The relevant language of the LMMA states that:
"A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries or death of any one patient."6
As a qualified health care provider, the hospital asserted that it was entitled to the limitations of the statute. The Court disagreed; it held that the damages available under EMTALA were not limited by the LMMA because the LMMA only covers malpractice claims, and that an EMTALA claim is not a malpractice claim.1,6
'Malpractice' under the Louisiana statute is defined as:
"any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient." 7 [Emphasis added by the court.]
The court implied that an EMTALA claim is an intentional tort under federal law, and then stated that a cause of action under EMTALA for "refusal to treat" is separate and distinct from a state malpractice cause of action.8
The Louisiana district court's reasoning was exactly the same as the federal district court in Michigan in the case of Smith v. Botsford Hospital,9 even though the Michigan court's ruling was overturned by the 6th circuit court of appeals.10,11 (See the lead article in the October 2006 issue of ED Legal Letter on Michigan's non-economic damages caps.) The Louisiana district court decision has not yet been reviewed by the federal 5th Circuit Court of Appeals, but it may be irrelevant if the next case isn't reversed on appeal.
Court in Arrington v. ER Physicians Group: Louisiana's Damages Cap is Unconstitutional
William Arrington, age 43, died at the Lake Area Medical Center. His family sued the emergency physician, the emergency physician's group, and the hospital asserting they were all liable for Mr. Arrington's death.
A medical review panel, required under Louisiana law prior to trial, rendered an opinion adverse to the emergency physician, and subsequently the physician and his insurance carrier admitted liability and paid the full amount, $100,000, recoverable under the LMMA. The Louisiana Patient Compensation Fund also paid its maximum allowable amount of $500,000, as set by the LMMA.2
As a consequence of these settlements, the plaintiffs released the emergency physician and the Fund from further litigation. However, they specifically reserved all causes of actions (negligent hiring, credentialing, monitoring, etc.) against the emergency physician group and the hospital . They petitioned the court to have the LMMA's limitation on recoverable damages declared unconstitutional so they could seek the full amount of their damages from these two defendants.2
Louisiana is only one of six states that cap all damages, including economic damages, rather than capping just the available non-economic damages. Also, the Louisiana cap was passed in 1975 and was not indexed to inflation as was done in other states such as Michigan, Wisconsin, and California.4,5,10,12
The trial judge — after considering the issues raised by the plaintiffs and the counter-arguments of the defendants and despite determining that $500,000 after 30 years time was not a sufficient amount to compensate severely injured plaintiffs — upheld the constitutionality of the cap.2
The family appealed, and on September 27, 2006, the Louisiana 3rd Circuit Court of Appeal in Lake Charles, in a 3-2 decision, reversed the trial judge and held that the $500,000 LMMA cap was unconstitutional because it no longer provided an "adequate remedy" to injured patients.2
The appeals court reviewed the history of the LMMA, and found that its balance of the competing interests of health care costs, malpractice costs, access to care, and compensation of injured patients — which may have been reasonable in 1975 — now severely limited the rights of injured patients. The court noted that the impact of the cap was especially harsh on the most grievously injured victims, and that the Act created classes of victims who are not equally compensated for their damages. Those victims whose damages fall within the cap are compensated completely. Those with damages that exceed the cap are not completely compensated, thus creating disparity and lack of "equal protection" among classes of claimants. (Incidentally, the Louisiana MMA was modeled after the state of Indiana's legislative tort reform, which is still considered constitutional in Indiana.)
The court then examined a provision of the Louisiana constitution, the 'adequate remedy' provision, which provides as follows:
"All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."13
It then decided that because of the depreciation of the dollar the $500,000 cap imposed in 1975 is worth only about $160,000 today. The defendants argued that the passage of time, the devaluation of the dollar, and other economic factors were irrelevant in determining whether an adequate remedy in law exists.
However, the court disagreed, calculating that to grant today's plaintiff the same relief that the legislature granted to plaintiffs in 1975, the cap would have to be raised to $1,562,500.
On that basis, the court found that the current $500,000 cap failed to provide an adequate remedy to today's severely injured plaintiffs, and thus was unconstitutional under the remedy provisions of Louisiana's constitution.2,13
The appeals court took pains to note that courts in other states have taken the same position with respect to damages caps, citing most particularly the Wisconsin Supreme Court case of Ferdon v. Wisconsin Patient Compensation Fund (See discussion of this case in the September 2006 ED Legal Letter.)14
Thus, the appeals court reversed the trial judge's decision and remanded the case back to the trial court for consideration of "what constitutes adequate damages in this case."
References
1. Jeff v. Univ. Health Servs., Inc., No. Civ.A.04-1507 (E.D. La. July 27, 2005).
2. Arrington v. ER Physicians Group, No. 04-1235 (La. Ct. App. Sept. 27, 2006). The cap contained in the Louisiana Medical Malpractice Act violates La.Const. art. 1, §22, which "assures our citizens of an adequate remedy under the law for injury to their persons". See also Taylor v. Clement 904 So.2d 708 (La. 2005).
3. 42 U.S.C. §1395dd(d)(2)(A).
4. Louisiana Medical Malpractice Act, (the LMMA), La.R.S. 40:1299.41(A), et seq.
5. Louisiana Medical Liability for State Services Act, (the "MLSSA"), La. R.S. 40:1299.39(A), et seq. There are two statutory schemes that deal with medical malpractice actions in Louisiana. The MLSSA applies to medical malpractice by a "state health care provider". The LMMA applies to medical malpractice by health care providers to which the MLSSA is not applicable.
6. La. R.S. 40:1299.42(B)(2).
7. La. R.S. 40:1299(A)(8) (emphasis added by the court).]
8. See Spradlin v. Acadia-St. Landry Med. Found., La., 758 So.2d 116 (La. 2/29/00). ("The courts have construed EMTALA as creating a federal cause of action separate and distinct from, and not duplicative of, state malpractice causes of action"); McDougal v. Lafourche Hosp. Serv. Dist., 1993 U.S. Dist. LEXIS 7381, 1993 185647 (E.D. La.) (EMTALA creates a distinct cause of action, an independent federal cause of action based on a strict liability standard.); Abercrombie v. Osteopathic Hospital Founders Assoc., 950 F.2d 676, 681 (10th Cir. 1991); Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990), (EMTALA is "not analogous to a state medical malpractice claim because it creates liability for refusal to treat.")
9. Smith v. Botsford General Hospital, Case No. 00-71459, Memorandum and Orders of U.S. District Court Judge Avern Cohn, September 28, 2000.
10. Smith v. Botsford General Hospital, 419 F.3d 513 (6th Cir. 2005).
11. The majority of courts addressing this issue have held that EMTALA's incorporation of state law extends to caps on damages. E.g., Power v. Arlington Hosp. Assoc., 42 F.3d 851, 862 (4th Cir. 1994); Valencia v. St. Francis Hosp. & Health Ctr., 03-cv-0252-LJM-WTL, 2004 U.S. Dist. LEXIS 7929, at *7 (S.D. Ind. Mar. 1, 2004) (agreeing with Power and listing cases); Barris v. County of Los Angeles, 972 P.2d 966, 973 (Cal. 1999) (same); Hughes v. PeaceHealth, No. A123782 (Or. Ct. Appropriate. Mar. 15, 2006). But see Cooper v. Gulf Breeze Hosp., Inc., 839 F. Supp. 1538, 1542-43 (N.D. Fla. 1993) (discussing the differences between medical malpractice and EMTALA and declining to apply state procedural requirements applicable to malpractice claims).
12. E.g., Mich. Comp. Laws §600.1483.
13. Louisiana Constitution, Article 1; §22.
14. Ferdon v. Wisconsin Patient Compensation Fund, 701 N.W.2d 440 (WI 2005).
While our nations' emergency physicians were considerate enough to hold their annual scientific assembly in weather-ravaged New Orleans, the courts in the Bayou dealt the house of medicine its version of a tsunami and trailing hurricane ...You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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