Susan Arrington, Etc. v. Er Physicians Group, Apmc

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1235

SUSAN ARRINGTON, ET AL.

VERSUS

GALEN-MED, INC., ET AL.

**************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 97-4329
HONORABLE J. DAVID PAINTER, DISTRICT JUDGE
**************
ON REMAND FROM THE
LOUISIANA SUPREME COURT, DOCKET NO. 2006-2968
*************
SYLVIA R. COOKS
JUDGE
**************

Court composed of Sylvia R. Cooks, Oswald A. Decuir, Elizabeth A. Pickett, Billy
H. Ezell, and James T. Genovese.

Pickett, J., dissents and assigns written reasons.
Ezell, J., dissents and assigns written reasons.

VACATED AND REMANDED WITH INSTRUCTIONS.

Oliver Jackson Schrumpt
Schrumpt & Schrumpt
3801 Maplewood Dr.
Sulphur, LA 70663
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Susan, Noelle and Laura Arrington

Michael Keith Prudhomme
Thomas P. Leblanc
501 Broad Street
Lake Charles, LA 70602
COUNSEL FOR SECONDARY DEFENDANT/APPELLANT:
Louisiana Patient’s Compensation Fund Oversight Board

Charles C. Foti, Jr.
Attorney General
J. Elliott Baker
Special Assistant Attorney General
506 E. Rutland Street
Covington, LA 70433
COUNSEL FOR DEFENDANT/APPELLEE/CROSS-APPELLANT:
State of Louisiana
Benjamin W. Mount
Bergstedt & Mount
1011 Lakeshore Drive, Suite 200
Lake Charles, LA 70160
COUNSEL FOR DEFENDANTS/APPELLEES/CROSS-APPELLANT:
Galen-Med, Inc., formerly d/b/a Lake Area Medical Center

COOKS, Judge.

PROCEDURAL HISTORY

In Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir.

9/27/06), 940 So.2d 777, this court held the $500,000 statutory limit on recovery of

damages in medical malpractice actions found in La.R.S. 40:1299.42(B) was

unconstitutional in failing to provide the Plaintiffs an “adequate remedy” as

guaranteed under Article 1, § 22 of the Louisiana Constitution. This judgment was

vacated by the Louisiana Supreme Court on procedural grounds. Arrington v. Galen-

Med, Inc., et al., 06-2944 (La. 2/2/07), 947 So.2d 724. Although the Plaintiffs raised

the unconstitutionality of La.R.S. 40:1299.42(B) on several grounds, the supreme

court held:

In the instant case, plaintiffs did not plead La.Const. Art. I, § 22
as a ground for finding La.R.S. 40:1299.42(B) to be unconstitutional.
The question of whether La.R.S. 40:1299.42(B) violated La.Const. Art.
I, § 22 was never briefed and argued before the district court, nor was
that issue passed upon by the district court in its ruling denying
plaintiffs’ motion for summary judgment.

....

In the absence of properly pleading and initial consideration of this
ground by the district court, the court of appeal erred in declaring
La.R.S. 40:1299.42(B) to be unconstitutional in violation of La.Const.
Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal
declaring La.R.S. 40:1299.42(B) to be unconstitutional in violation of
La.Const. Art. I, § 22. Because the court of appeal pretermitted the
remaining issues in the appeal, we will remand the matter to the court of
appeal for consideration of these matters.

Id. at 729 (footnotes omitted).

REMAINING ISSUES ON APPEAL

We have considered the remaining matters, including the equal protection

issue, as directed by the supreme court. However, the State complains Plaintiffs also

1

did not specifically raise the equal protection issue in their motion for summary

judgment and therefore this issue is not properly before the court. The supreme court,

holding the unconstitutionality of a statute must be specially pleaded in the district

court, stated in Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/20/94), 646 So. 2d

859:

Our Code of Civil Procedure does not require a single procedure or type
of proceeding for challenging or assailing the constitutionality of a statute.
However, the long-standing jurisprudential rule of law is: a statute must first
be questioned in the trial court, not the appellate courts, and the
unconstitutionality of a statute must be specially pleaded and the grounds for
the claim particularized.

The pleadings allowed in civil actions are petitions, exceptions, written
motions and answers. LSA-C.C.P. art. 852. Therefore, when the
unconstitutionality of a statute is specifically pled, the claim must be raised in
a petition (the original petition, an amended and supplemental petition or a
petition in an incidental demand), an exception, a motion or an answer. It
cannot be raised in a memorandum, opposition or brief as those documents do
not constitute pleadings.

Id. at 864-65(footnotes and citations omitted)(emphasis added).

As noted by the supreme court, “our Code of Civil Procedure does not require

a single procedure or type of proceeding for challenging or assailing the

constitutionality of a statute.” Id. at 864. The requirement that the unconstitutionality

of a statute must be specially pled and the grounds for the claim particularized is a

jurisprudential one designed to prompt a “contradictory hearing, wherein all parties

will be afforded the opportunity to brief and argue the issue.” Arrington, 947 So.2d

at 726 (quoting Vallo, 646 So.2d at 865). The ultimate purpose of this rule, as

explained by the supreme court, is that “[t]he record of the proceeding could then be

reviewed to determine whether the party attacking the statute sustained his or her

burden of proof, and whether the trial court attempted to construe the statute so as to

preserve its constitutionality.” Id.

In our original opinion, Judge Cooks, dissenting, noted Plaintiffs “alleged in

2

their Fifth Amending and Supplemental Petition, under the Louisiana Constitution of

1974, the [Medical Malpractice Act’s (MMA)] cap violates the ‘right to equal

protection, and other rights therein guaranteed.’” Arrington, 940 So.2d at 787

(emphasis added). Plaintiffs further stated in their motion for summary judgment

filed on June 19, 2003, that “separation of powers and federal and state substantive

due process grounds and prohibited special law grounds prohibit the 1975 legislature

from directing the result of judicial decisions in this case.”(emphasis added).

Responding to these pleadings, the State, in its answer and second motion for

summary judgment, asserted “La.R.S. 40:1299.42(B)(1) and (2) do not violate state

constitutional guarantees of equal protection.” The trial court’s ruling, as well,

reflects that this issue was reviewed on the merits.

Although we are satisfied the equal protection issue and the remaining issues

were sufficiently pled below and are ripe for review, we elect to remand this case to

the trial court to allow plaintiffs an opportunity to particularize all grounds for their

claim that La.R.S. 40:1299.42(B) is unconstitutional in a proper amending and

supplemental pleading and to afford the State, the Patient Compensation Fund

Oversight Board, and all parties in interest an opportunity to fully address and litigate

the grounds so alleged. See La.Code Civ.P. art. 2164; M.J. Farms, LTD v. Exxon

Mobil Corp., et al, 07-0450 (La. 04/27/07), ___ So.2d ___; Summerell v. Phillips, 258

La. 587, 247 So. 542 (1971).

Further, the State, in framing its position, below relied heavily on prior

jurisprudence upholding the constitutionality of the MMA’s cap and, therefore, it did

not present any evidence in the record or make any showing that the cap continues

to serve a legitimate public purpose and that a reasonable basis still exists for

maintaining the discriminatory classification affecting Plaintiffs’ right to full recovery

3

in medical malpractice cases. We will not penalize the State for the failure, however,

as noted in footnote 5 of Judge Cooks’ dissent in our original opinion, this evidence

is readily available and important to a full examination of the issue. Accordingly, we

elect on remand, consistent with the supreme court’s decision in Sibley II, to instruct

the district court to re-examine all of the issues raised and to determine whether the

statute is constitutional after permitting the parties to amend the pleadings, to conduct

full discovery, to file additional motions and briefs, to introduce additional evidence,

and to fully argue the issues advanced in all the pleadings pursuant to a contradictory

hearing.

DECREE

We vacate the judgment of the district court. The case is remanded to the

district court to allow the Plaintiffs to specially plead the unconstitutionality of

La.R.S. 40:1299.42(B) and for full litigation of the issues at a contradictory hearing

in a manner consistent with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS.

4

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1235

SUSAN ARRINGTON, ET AL.

VERSUS

GALEN-MED, INC., ET AL.

PICKETT, J., dissenting.

I respectfully dissent from the opinion of the majority vacating the decision of

the trial court and remanding for a new hearing.

The majority admits that the issue of the constitutionality of the $500,000.00

cap on general damages in medical malpractice claims brought under the Louisiana

Medical Malpractice Act, codified at La.R.S. 40:1299.42(B)(1) and (2), was

specifically pled in a pleading by the plaintiffs below. The trial court held a

contradictory hearing, allowing all parties to submit evidence. The trial court then

ruled that the cap on general damages was not unconstitutional.

Nevertheless, the majority today proposes to remand the case for a new

hearing, citing La.Code Civ.P. art. 2164, M.J. Farm, LTD v. Exxon Mobil Corp., 07-

450 (La. 4/27/07), ___ So.2d ___, and Summerell v. Phillips, 258 La. 587, 247 So.2d

542 (1971). Louisiana Code of Civil Procedure article 2164 states, in relevant part,

“The appellate court shall render any judgment which is just, legal and proper upon

the record on appeal.” This is a truism which does not lend authority to our inaction

in the present case.

1

In M.J. Farms, the plaintiff raised the constitutionality of a statute in a

memorandum. The trial court held the statute unconstitutional. The supreme court,

in a per curiam opinion, held that a memorandum is not a pleading and vacated the

judgment of the trial court. The case was remanded to the trial court for the plaintiff

to properly plead the unconstitutionality of the statute. In the case before us, the

unconstitutionality of the cap on general damages was raised in a pleading in the trial

court, as required by the supreme court’s decision in Vallo v. Gayle Oil Co., Inc., 94-

1238 (La. 11/20/94), 646 So.2d 859. Thus, a remand is not appropriate under the

language in M.J. Farms.

In Summerell, the plaintiff sought a writ of mandamus ordering the building

inspector to issue a permit for a trailer park, arguing that a moratorium resolution

passed by the parish council was unconstitutional. The trial court found the

resolution unconstitutional and ordered the issuance of a permit. The next day, the

parish council adopted an ordinance limiting trailer parks to special zoning districts.

The trial court granted a motion for a new trial. The trial court denied the writ of

mandamus and dismissed the plaintiff’s suit after the new trial, finding that the

validity of the zoning ordinance was not properly pled in the trial court. On review,

the appellate court held the zoning ordinance unconstitutional. The supreme court

found the appellate court did not have a proper record before it to reach the issue of

constitutionality of the ordinance, and remanded to the trial court for proper pleading

and a hearing. In the case before us, the unconstitutionality of the general damages

cap was raised in proper pleadings in the trial court, a full hearing was held by the

trial court, and the trial court ruled that the cap was constitutional, “even though there

is no adequate remedy, equal protection, or separation of powers, in view of the

2

erosion of ‘the dollar[.]’” A full record was developed in the trial court. The holding

in Summerell is not applicable to the case before us.

The supreme court has held that while appellate courts have the power to

remand a case to the trial court for additional proceedings, that authority should be

“sparingly exercised.” Bayou Rapides Lumber Co. v. Campbell, 41 So.2d 781, 782

(La.1949). “When the entire record is before the appellate court, remand for a new

trial produces delay of the final outcome and congestion of crowded dockets while

adding little to the judicial determination process.” Gonzales v. Xerox Corp., 320

So.2d 163, 166 (La.1975). This is not a case in which a view of fact witnesses is

essential for determination of the issues before us. This is not a case in which issues

have been raised in the appellate court which require new evidence in order for this

court to properly rule.

All parties have already had “an opportunity to address and fully litigate” the

issues which are currently before this court. The state’s failure to produce evidence

in the original hearing of this matter, despite being given a full opportunity, is not just

cause for a remand, no matter how important the majority believes this information

to be. Thus, I would reach the merits of the plaintiff’s constitutional claims, as they

are properly before us. As a majority of this panel has concluded that we should not

reach the merits, I will not address the issues properly before us on remand from the

supreme court, as such an opinion would at best be advisory.

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NUMBER 04-1235

THIRD CIRCUIT COURT OF APPEAL

STATE OF LOUISIANA

SUSAN ARRINGTON, ET AL.

VERSUS

ER PHYSICIANS GROUP, APCM, ET AL.

EZELL, J. Dissents.

The Plaintiffs in this case have carried their burden by presenting evidence to

show that there is no rational basis for the Medical Malpractice Act and that the Act

does not continue to substantially further an important governmental interest. The

courts of this state must remember that we are a Civil Law State and I urge all judges

of this state to review the words of the late Justice Albert Tate, Jr.

Our basically civilian tradition has been partly overlaid and replaced by
Anglo-American common law. . . .

Today, despite the renewed importance of the civilian sources of our
substantive law, there is little support in the Louisiana bench and bar for
civilian theory that the role of the judges is to decide cases only, leaving
doctrinal development to the scholarly writers. . . .

The Louisiana judge, like his common-law brother, is a law-announcer
as well as a case-decider. . . .

As with the common-law judge, he views himself not merely as a
technician but also as a scholar, law-maker and exponent of doctrine.
However, as with a modern day civilian judge, he is essentially more
free than his common law counterpart from the mechanical effects of
“binding” precedent; he has the freedom to return, independent of
intervening judicial precedents, to the initial legislative concepts and use
creative analogies and constructs based upon them; or, in the absence of
legislation expressly intended to apply, he is free to devise socially just
and sound rules to regulate the unprovided-for case.

Justice Tate noted that even in other states, a judge is less bound by
precedent when deciding an issue of constitutional, rather than
jurisdictional or statutory law.

C.A. Marvin, Dissents in Louisiana: Civility Among Civilians, 58 La.L.Rev. 975, 977

(1998) (footnote omitted) (alteration in original).