In Oliver v. Magnolia Clinic, 2010-2785 (La. 3/25/11), 57 So. 3d 308, the Louisiana Supreme Court vacated a Third Circuit ruling that nurse practitioners were not covered by the Louisiana Medical Malpractice Act and did not benefit from the cap on damages. The Supreme Court remanded the case to the Third Circuit for an en banc consideration in order to obtain a majority opinion on the issues presented.
Upon original hearing, two judges of a five judge panel of the Third Circuit ruled the Medical Malpractice Act’s inclusion of nurse practitioners within its ambit violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and was, therefore, unconstitutional. Two judges on the panel ruled that the inclusion of nurse practitioners as health care providers entitled to the protection of the Medical Malpractice Act did not go into effect until the amendment of the statute in 2009. Because the alleged malpractice of the nurse practitioner occurred in 2000-2001, the statute did not cover the defendant nurse practitioner, and she was not entitled to a cap on the damages awarded at trial.
There was some discussion, without a consensus, on whether nurse practitioners have always been covered health care providers entitled to the protections of the Medical Malpractice Act. The court noted that registered nurses had been included since the original enactment, and nurse practitioners were required to be registered nurses. However, nurse practitioners were able to diagnose, treat, and prescribe medications, while registered nurses were not. The inclusion of nurse practitioners in the 2009 amendment was an indication that they had not been covered by the Act previously.
One judge dissented and opined the cap on damages did not violate the equal protection clause of the Louisiana Constitution, without addressing whether the inclusion of nurse practitioners in the Medical Malpractice Act was constitutional. His opinion was that the legislature, not the court, had the responsibility and the authority to fix the problem of the present day value of the $500,000 cap (as compared to the value when enacted). Because there was no clear majority ruling, the Supreme Court remanded the case for an en banc consideration.
The facts established at trial showed that the nurse practitioner was a high school graduate who had obtained a diploma in nursing from a hospital and was certified by the hospital as a pediatric nurse practitioner in 1977. She was “grandfathered” in as a nurse practitioner without having to obtain the current requirement of Baccalaureate and Masters of Science in Nursing. The nurse practitioner opened a solo practice and entered a collaborative agreement with a physician. However, the nurse practitioner never collaborated with her collaborating physician, as required.
The nurse practitioner treated the plaintiff’s baby during the first fourteen months of her life for numerous complaints and saw the baby 32 times during the first year. When the mother asked to have a physician see the baby, the nurse practitioner told her she only needed to see a physician for a hospital admission. Finally, in November, 2001, the mother took the baby to Women’s and Children’s Hospital in Lake Charles, where the baby was seen by the nurse practitioner’s collaborating physician. After running tests, the physician referred the baby to Texas Children’s Hospital for specialized care.
The baby was diagnosed with neuroblastoma. The nurse practitioner’s records documented signature symptoms of neuroblastoma in the baby at six months. The evidence at trial showed that, if neuroblastoma is diagnosed within the first year of life, the child has a 90% chance of an event free survival. However, because the neuroblastoma diagnosis was made when the plaintiff’s baby was over one year old, the baby suffered permanent injuries, and her quality of life was severely diminished.
At trial, the jury rendered a verdict in favor of the plaintiffs and awarded $6,000,000 in general damages; $629,728.24 in past medical expenses; $3,358,828.00 in future medical expenses; and $33,000 to the father and $200,000 to the mother for loss of consortium. The plaintiffs then filed a Petition for Declaratory Relief asserting the Medical Malpractice Act was unconstitutional. The Louisiana Patient’s Compensation Fund intervened to challenge the constitutional attack.
The trial court initially found the Act was constitutional, except for the inclusion of nurse practitioners as qualified health care providers. On reconsideration, the trial court found that the plaintiffs did not challenge the Medical Malpractice Act on the basis that the definition of a qualified health care provider was overly inclusive. Thus, the trial court found the constitutional challenge on that ground was not properly before the court and reinstated the cap on the damages.
On appeal, the plaintiffs argued the cap on damages violated several provisions of the Louisiana Constitution, but the Third Circuit addressed only the equal protection challenge. The Third Circuit relied on Supreme Court cases for the proposition that the “rational basis” to support the constitutionality of the Medical Malpractice Act offered by the State required a greater showing in cases involving severely or catastrophically injured victims. The court found that the Act created two classes—one class of medical malpractice victims who could receive full recovery for the injuries they sustained and another class of medical malpractice victims who, because of the severe injuries, could not receive full recovery. Thus, this statutory classification of victims disadvantaged or discriminated against one class by reason of or because of their physical condition, calling into question the equal protection rights of this class of victims.
The State had to show the law does not arbitrarily, capriciously, or unreasonably discriminate against the disadvantaged class, by demonstrating the legislative classification furthers a legitimate state objective. In this case, the State offered no evidence to refute the finding that the cap discriminated against the plaintiffs by limiting their damages to $500,000, less than the full recovery of their general damage and other awards. The State pointed to the stated purpose in lowering malpractice insurance costs for health care providers, which furthered the State’s legitimate objective in assuring accessible and affordable health care for its citizens. The State also pointed to the benefits to the plaintiffs from the increased likelihood that their healthcare providers would have malpractice insurance; the victim’s future medical expenses would be paid; and assurances that the claims would be paid from a solvent Patient Compensation Fund.
The Third Circuit rejected the evidence presented by the State, including expert testimony, that the cap still served a legitimate state interest. The Third Circuit relied on evidence that studies could not determine whether caps on damages had any impact on the amount of premiums charged by insurers. Nor did the State show there was a shortage of physicians in Louisiana or a correlative need for nurse practitioners to operate and own “walk in” clinics to make health care more affordable or available to Louisiana citizens.
The Third Circuit indicated that the medical profession would benefit for years to come in treating the victim of the nurse practitioner’s malpractice, while the plaintiffs would be subject to the ever dwindling value of the damages recoverable under the cap. The Third Circuit was very critical of the ability of the nurse practitioner, who held no advanced degrees and who failed to collaborate with a physician as required, to benefit from a limitation of her liability and to continue to operate a clinic and potentially subject other patients to substandard care, based on what the court described as gross negligence and incompetence.
The Third Circuit affirmed the trial court award of past medical expenses and judicial interest, as well as the future medical expenses, to be paid by the Patient’s Compensation Fund. The Third Circuit concluded the cap, to the extent it included nurse practitioners, violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and, thus, was unconstitutional. The Third Circuit reinstated the jury’s award of damages.
Because the Supreme Court vacated the Third Circuit ruling and remanded the case to the Third Circuit for an en banc hearing, it would appear at this time that nurse practitioners are covered by the Medical Malpractice Act, at least for alleged malpractice occurring on or after the effective date of the 2009 amendment to add nurse practitioners to the definition of covered health care providers. This case warrants close monitoring on the issue of whether nurse practitioners are covered by the Medical Malpractice Act, particularly considering the number of cases where the Third Circuit has found provisions of the Act to be unconstitutional.