La. SC reaffirms cap on med mal damages

Jessica M. Karmasek Apr. 3, 2012, 7:20am

BATON ROUGE, La. (Legal Newsline) - The Louisiana Supreme Court last month declared the state's $500,000 cap on total medical liability damages constitutional.

Joe and Helena Oliver sued nurse practitioner Susan Duhon; her insurer, St. Paul Fire and Marine Insurance Company; the clinic she owned and operated, The Magnolia Clinic; and the Louisiana Patients' Compensation Fund.

The Olivers alleged Duhon committed malpractice, arguing that their daughter's delayed cancer diagnosis and treatment made her condition worse.

Taylor Oliver, born in September 2000, was brought to The Magnolia Clinic and treated by Duhon shortly after birth.

Over the next year, Taylor was seen by Duhon 32 times, with symptoms of nausea, vomiting, diarrhea, bruising and infections.

It wasn't until later that she was diagnosed by other physicians with a condition known as neuroblastoma, a form of cancer that develops from nerve cells.

As a result, Taylor now suffers from severe bone loss and muscle deterioration, loss of sight and severe cognitive disabilities.

A jury awarded the Olivers $6 million in general damages, $629,728.24 in past medical expenses and $3,358,828 in future medical expenses.

The jury also awarded loss of consortium awards to Joe and Helena Oliver in the amounts of $33,000 and $200,000, respectively.

The $6 million in general damages was later cut to the state's $500,000 cap.

The Olivers appealed, contending that the provision of the Louisiana Medical Malpractice Act that limits the recovery of medical malpractice damages is unconstitutional.

The trial court rejected each of the Olivers' challenges to the cap's constitutionality; however, it found that the MMA was "overly broad due to its inclusion of nurse practitioners."

Louisiana's Third Circuit Court of Appeal reviewed the case twice. Both times, it ruled that the award should not be reduced.

However, the appeals court was split on the constitutionality of the cap and to whom it should apply.

The state's high court, in its March 13 opinion, found the cap to be applicable to all "qualified healthcare providers" under the MMA, including nurse practitioners.

"The legislature's proven intent in enacting the cap was to afford limited protection to health care providers who qualified under the MMA in an attempt to prevent and/or treat the crisis in the medical field," Justice Marcus R. Clark wrote in the Court's 17-page ruling.

"We do not adopt the logic that requires the State to put on evidence of a crisis within each speciality and sub-speciality of the field of health care. Nor do we find merit in the concurring views of Judges Saunders and Painter that nurse practitioners were not statutorily covered by the MMA at the time the malpractice occurred.

"At the time the Olivers' claim arose, La.R.S. 40:1299.41(A)(10) defined 'health care provider' as including a 'registered or licensed practical nurse or certified nurse assistant.' By Act 14 of 2009, effective Aug. 15, 2009, the legislature amended the definition to include a 'nurse practitioner.'"

The Court reinstated the trial court's judgment in full.

From Legal Newsline: Reach Jessica Karmasek by email at

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