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DJP Update 2-2-2007 Medical Liability cap in
Louisiana and Louisiana
Supreme Court ruling of today
See the summary note below from the general counsel of the Louisiana State
Medical Society.
The LA Supreme Court decision is a step in the right direction. Supreme
Court ruled that the unconstitutional ruling of the 3rd
Circuit on the "adequate remedy" provision of the Louisiana constitution is
set aside. But the case is sent back to the 3rd
Circuit for more evaluation.
Donald J. Palmisano, MD, JD
Intrepid Resources / The Medical Risk Manager Company
5000 West Esplanade Ave., #432
Metairie, LA 70006
504-455-4895 office
312-560-0180 cell
DJP@intrepidresources.com
www.intrepidresources.com
I bring good news this afternoon. Today, February 2, 2007, the Louisiana
Supreme Court announced that they granted the writs in the Arrington and
Taylor Cases and vacated and set aside the judgment of the Court of Appeals
(3rd Circuit) declaring the cap on medical malpractice damages to be
unconstitutional because it failed to provide an ”adequate remedy” as
guaranteed under the provisions of La. Const. Art. 1, Sec. 22.. The Supreme
Court has remanded (sent the case back down) the case to the 3rd Circuit to
consider the remaining issues on appeal. Although this is a good ruling for
our side, it is not the end of the cases.
In the Arrington case, the Supreme Court based its decision on the fact
that the plaintiffs did not plead or raise the constitutional
challenge based upon the guarantee of adequate remedy in the trial court. It
is well established law that litigants must raise
constitutional challenges in the trial court rather than the appellate
courts and that the constitutional challenge must be specially plead and the
grounds for the claim particularized before the trial court. In other words,
the Supreme Court said that the question of constitutionality of the cap
based on the guarantee of adequate remedy was never procedurally before the
3rd Circuit, so the
ruling of the 3rd Circuit is vacated.
In the Taylor case, the Supreme Court said that although the plaintiffs
did plead adequate remedy as a ground for unconstitutionality in the trial
court, they did not rely on that ground in their motion for summary
judgment. They said the issue was never briefed or argued before the trial
court. Because the Supreme Court determined that the trial court never
considered this issue, they held that the 3rd Circuit Court of Appeals erred
in declaring the cap to be unconstitutional in violation of Article 1.,
Section 22 of the Louisiana Constitution.
As a side note, the plaintiffs in both cases asked the Supreme Court to
exercise its discretionary jurisdiction to consider whether the statute
violates any other constitutional provision. In a footnote, the Supreme
Court noted that they declined to do so.
The case will now go back to the 3rd Circuit Court of Appeal for them to
consider those constitutional issues they decided not to
consider in the last appeal, such as, separation of powers, due process, and
the prohibition against special laws. So as you can see this is just round
one in what may be a very long battle. If you want to read the opinions of
the Supreme Court go to: http://www.lasc.org/opinions/2007/06C2518pc.pdf
and http://www.lasc.org/opinions/2007/06C2968pc.pdf
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Please feel free to contact me if you have any questions.
Thank you,
Amy W. Phillips, JD
General Counsel
Louisiana State Medical Society
6767 Perkins Road
Suite 100
Baton Rouge, LA 70808
800-375-9508
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