Increased Awards for Victims of Medical Malpractice

Taylor Oliver was born on September 5, 2000. Shortly after birth, Taylor began experiencing health problems and was brought to the Magnolia Clinic, where she was treated exclusively by Susan Duhon on thirty-two occasions. Since Nurse Practitioners are required to collaborate with a physician, Duhon agreed to collaborate with Dr. Jennette Bergstedt, M.D., when providing primary care from the Magnolia Clinic. Taylor was in the clinic several times per month with various complaints, including repeat infections, persistent abdominal pain, nausea, vomiting, diarrhea and anemia. Despite her statutory duty to consult with a physician when needed, Ms. Duhon did not collaborate with Dr. Bergstedt concerning Taylor’s condition. Instead, she verbally reassured Taylor’s mother and prescribed over thirty medications to treat the child’s multiple complaints and observable symptoms. Additionally, Duhon stated that Taylor only needed to see Dr. Bergstedt in connection with admission to a hospital.

After no progress in her condition, Taylor’s mother eventually brought her to Women & Children’s Hospital in Lake Charles, where she was treated for the first time by Dr. Bergstedt. Taylor was diagnosed with neuroblastoma, a form of childhood cancer originating in the nerve tissue. The records maintained by the Magnolia Clinic revealed at approximately six months, Taylor developed severe bruising around the eyes – one of the signs of childhood neuroblastoma. If neuroblastoma is diagnosed within the first year of life, a child has a ninety percent chance of an event-free survival. Fortunately, Taylor survived the cancer, but the quality of her life has been severely diminished. The tumor advanced into her long bone, face, eyes, ears, skull and spine leading to a variety of physical defects and vision difficulties. What’s more, her bones have become weakened and brittle and she struggles each day to overcome learning disabilities.
As a result, the Olivers pursued medical malpractice claims and a jury returned a verdict against Duhon in favor of the Olivers, on Taylor’s behalf, for $6,000,000.00 in general damages, $629,728.24 in past medical expenses, and $3,358,828.00 in future medical expenses. The jury awarded Mr. Oliver $33,000.00 for loss of consortium and Ms. Oliver $200,000.00. Unfortunately, the MMA malpractice insurance coverage limited recoverable damages to $500,000.00 and the Olivers petitioned the court to have the MMA declared unconstitutional. A trial court found that the MMA was constitutional and subsequently reduced the jury’s award to conform to the limitation on general damage recovery and other restrictions of the Louisiana Medical Malpractice Act. The Olivers appealed the trial court’s decision and the appellate court found that the cap on general damage awards unconstitutionally disadvantages and discriminates against Taylor and her parents because of the severity of Taylor’s physical condition when compared to other malpractice victims who receive full recovery for their injuries.

In the opinion, the court examined whether the MMA violated the equal protection clause of the Louisiana Constitution which provides, in part: “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.” In fact, the legislature is constitutionally free to limit damage recoveries or to grant immunities from suit as long as there is a rational basis for the discriminatory treatment that is reasonably related to the governmental interest. While the state insisted that the legislative purpose of the MMA cap was to assure available and affordable malpractice insurance for healthcare providers, the Court did not agree. The court noted that when the state chooses to provide an adequate remedy to provide an “adequate remedy” to some members of a class of victims and denies it to other members of the same class because of their physical condition, it creates a separate classification. Essentially, limiting the recovery of victims whose injuries exceed $500,000 creates two classes of victims and, as a result, “classifies individuals because of their physical condition.” Victims with minor injuries are allowed to fully recover while those harmed the most recover minimal damages in comparison.

This opinion modifies the statutory scheme that limits damages recoverable by victims of medical malpractice. As the court noted, “[a] statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.” As such, victims of medical malpractice should consult experienced attorneys to assist them in recovering damages from medical malpractice as well as understanding medical malpractice statutes.

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