The Louisiana Supreme Court recently heard oral arguments in the matter of Oliver v. Magnolia Clinic regarding the Third Circuit Court of Appeal's holding that "to the extent it includes nurse practitioners within its ambit, the medical malpractice cap violates the equal protection and adequate remedy of the Louisiana constitution." 71 So.3d 1170 (2011). 

The Third Circuit Court of Appeal's original holding was appealed to the Supreme Court in March of 2010. The Louisiana Supreme Court remanded the case to the Third Circuit Court of Appeal for an en banc consideration (requiring a majority opinion of the entire court). On remand, the Third Circuit Court of Appeal adopted its original March of 2010 opinion with a majority concurring. Two of the justices, however, dissented. Following its August 2011 holding, the Supreme Court granted a writ to review the decision. While oral arguments have been heard in this matter, to date, the Court has yet to render its opinion.

The Louisiana medical malpractice act was adopted by the Louisiana Legislature in 1975 in an attempt to stabilize the medical malpractice insurance market. Legislators stated reasons for the act's adoption as a means to entice doctors to remain within or move to the state of Louisiana and to ensure that doctors had access to affordable malpractice insurance such that Louisiana citizens would access to necessary health care services.  Since its enactment, the medical malpractice act has been challenged before on constitutional grounds and has been upheld as constitutional. In the case at bar, the Louisiana Supreme Court will determine if the medical malpractice act, as it applies to nurse practitioners (and essentially any other entity not expressly covered by the 1975 act), is a violation of the equal protection clause of the Louisiana constitution.

The Third Circuit Court of Appeal's holding in Oliver was grounded in the reasoning, as articulated by the court, that the medical malpractice act creates a suspect classification under the equal protection clause. The court reasoned that the act creates and distinguishes between two types of tort victims--those who can receive full compensation under the act and those who cannot receive full compensation under the act because of the severity of their injuries. After concluding that a suspect classification had been created under the act, the court looked to determine if the State had an important governmental interest in enforcing the medical malpractice act. The Third Circuit Court of Appeal could find no important governmental interest to justify that a specific class of individuals (those with severe/catastrophic injuries) would be precluded from receiving full compensation for their injuries. Thus, the Louisiana Third Circuit Court of Appeal held that the act was unconstitutional as it applied to nurse practitioners.
 
Those justices dissenting in the Oliver case cited the Louisiana Supreme Court's holding in Butler to argue that the constitutionality of the medical malpractice act has already been challenged and the LA SC has already determined its validity. In Butler, the Louisiana Supreme Court noted that those individuals who suffered the most serious injuries received three important benefits from the medical malpractice cap. Specifically, "(1) greater likelihood that the offending physicians or other health care provider has malpractice insurance; (2) greater assurance of collection from a solvent fund; and (3) payment of the medical care and related benefits." Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So. 2d 517, 521 (La. 1992).

Additionally, the dissenters pointed out that it is not the position of the judiciary to make changes to the laws of the state, but instead within the purview of the legislature to make amendments to this act.

Ultimately, if the Louisiana Supreme Court adopts the reasoning of the Louisiana Third Circuit Court of Appeal, the following professions would potentially be limited from coverage under the medical malpractice act: ambulance services, nurse midwives, and certified registered nurse anesthetists (1986 addition); community blood centers and tissue banks (1987 addition); occupational therapists (1990 addition); licensed midwives (1992 addition); social workers (1999 addition); nursing homes, licensed professional counselors, and certified nurse assistants (2001 addition); licensed perfusionists and offshore health service providers (2003 addition); EMS students (2004 addition); clinical nurse specialists (added the same time as nurse practitioners in 2009); radiologic technologists, clinical laboratory scientists, and licensed respiratory therapists (2010 addition).

As evidenced by the number of potential professions that, following the reasoning of the Third Circuit Court of Appeal, could be excluded from coverage under the medical malpractice act, the Oliver case will greatly impact the future of medical malpractice litigation in Louisiana.

by: Megan L Callahan