Verdicts

The plaintiffs subsequently filed a motion for new trial limited to the question of the constitutionality of the limitations of liability set forth in LSA-R.S. 40:1299.41, et. seq. The Louisiana Patients' Compensation Fund Oversight Board (PCF) intervened. Thereafter, at a hearing, the trial judge granted the plaintiffs' motion for new trial, allowing them to challenge the constitutionality of the medical malpractice “cap.” On Aug. 4, 2003, the PCF filed a Motion for Summary Judgment on the issue of the constitutionality of the medical malpractice cap, which the trial court granted, finding that the medical malpractice cap did not violate the state or federal constitutions.

In their appeal, the plaintiffs contend that the trial court erred in reducing the general damages award to $500,000, because it is an unconstitutional disparity of treatment to impose the medical malpractice cap, which was enacted in 1975 without an adjustment for inflation. They argued that the PCF did not demonstrate a legitimate state objective in allowing the cap to be lowered annually due to the effects of inflation, and in allowing the same injuries that were fully compensated years ago under the cap to no longer be fully compensated due to the absence of a cost of living adjustment. The PCF responded that it was the power of the legislature, not the judiciary, to decide whether or not the act should be reformed to adjust the cap for inflation.

The court agreed with the PCF, noting that “[u]ndoubtedly, the legislature was aware of the effects of inflation and could have added provisions regarding inflation and adjustment of the $500,000 cap, but did not do so.” As it could find no constitutional violations in the law, the court held it had not authority to modify the existing legislation.references.

Insurer Need Not Defend Against Suit

An insurer was not required to defend in a malpractice action because although the suit alleged equipment deficiencies in an assisted-living apartment and the policy excluded primarily only injuries caused by deficient provision of medical services, the equipment that was not provided to the decedent was integral to the provision of medical services to him. Allstate Insurance Co. v. Disability Serivced of the Southwest Inc., No. 03-21197, 2005 U.S. App. LEXIS 2179 (5th Cir. 2/10/05).

This insurance dispute arose following the death of Kenneth Ray Lofton, a quadriplegic who had been in the care of Disability Services of the Southwest Inc. (DSSW). Lofton's family sued DSSW, claiming that DSSW was negligent in its provision of medical care to Lofton and in its failure to provide him with a usable telephone and emergency response device for emergencies. Allstate Insurance Company sought a declaratory judgment in the district court ruling that it had no duty to defend its insured, DSSW, in the lawsuit.

Lofton entered DSSW's 24-Hour Shared Attendant Program in 2000. The Program is administered by the Texas Department of Human Services (TDHS), which contracted with DSSW to provide care for the residents of the apartments. Within 2 or 3 days of arriving at the apartments, Lofton developed a severe urinary tract infection. He was unable to ask for medical assistance because his bedroom did not have the communication devices. Although there was a telephone located outside his bedroom, Lofton could not reach it as a quadriplegic, and would not have been able to use it because it could not be activated with a mouth stick. Unable to contact anyone to alert them of his condition, Lofton died 4 days after arriving at the apartments.

When Lofton died, DSSW was insured by Allstate under a commercial general liability policy. The policy covered claims of bodily injury or property damage “caused by an 'occurrence' that takes place on the 'coverage territory.'” The policy excluded any bodily injury or property damage arising out of the rendering or failure to render medical services.

The Lofton family brought suit against DSSW, alleging that it failed to provide adequate medical care, which led to Lofton's infection and his subsequent death. In the alternative, they alleged that regardless of the cause of the infection, DSSW failed to provide the communication devices. Allstate filed its motion for declaratory judgment claiming it owed no duty to defend DSSW because Lofton's injuries fell under the exclusion of coverage. The magistrate judge agreed, and granted summary judgment in favor of Allstate.

The dispositive inquiry was whether access to a telephone or emergency response device was excluded in coverage as a medical service under the policy. DSSW relied on Guaranty Nat'l Ins. Co. v. North River Ins. Co., 909 F.2d 133 (5th Cir. 1990), which found an insurer liable to defend a suit involving the suicide of a patient who jumped from a window. The Guaranty Nat'l Ins. Co. court found that the decision not to place fixed protective screens over the windows, which could have prevented the suicide, was an administrative business decision rather than a professional medical decision excluded from coverage. This administrative business decision, the court ruled, was a cause of death independent of the failure to observe the patient, because the jury found that each separately was a proximate cause of the patient's death.

In determining what falls under the rubric of “professional services,” as opposed to a “business decision,” the court said, it had to consider the inherent skills typified by the profession in question. To qualify as a professional service, the task must arise out of acts particular to the individual's specialized vocation. Communication with patients is vital to providing “health” or “nursing” services. If Lofton had not been a quadriplegic, he would not have required communication devices that could be operated by a mouth stick. Providing this service to Lofton was integral, to the provision of a 24-Hour Shared Attendant Program for someone in Lofton's condition, as evidenced in the contract between DSSW and TDHS. Hence, the court found, this case was not analogous to Guaranty Nat'l, in which the hospital decided to use screws in the window sashes rather than fixed, protective screens. The contract between DSSW and TDHS made clear the purpose of the communication devices: it required DSSW to “arrange for each household to have a telephone or an emergency response device for requesting assistance in emergency situations and for requesting assistance with activities for daily living.” Thus, the claim that Lofton's death was caused by the failure to provide communication devices was inseparable from the Lofton family's claim that DSSW failed to provide adequate medical care, and the medical services exclusion applied. Accordingly, Allstate had no duty to defend DSSW.

Decreased Real Value of Money Damages a Subject for Legislature

Medical malpractice damage caps enacted years ago without provision for cost-of-living increases were not rendered unconstitutional by that omission. Monistere v. Engelhardt, 04-CA-1126 (La.App. 5 Cir. 02/15/05); 2005 La. App. LEXIS 261.

The plaintiffs filed this medical malpractice action against plaintiff's decedent's doctor, after a finding by the Medical Review Panel that the doctor breached the applicable standard of care. The trial judge found for plaintiff wife and daughter and awarded $175,000 for decedent's survival action, and $1,100,000 to plaintiffs for their wrongful death claims. The trial judge reduced this award to $500,000 in accordance with the medical malpractice recovery limits set forth in LSA-R.S. 40:1299.42B(1). The trial judge also awarded costs and legal interest from the date of filing of the complaint.

The plaintiffs subsequently filed a motion for new trial limited to the question of the constitutionality of the limitations of liability set forth in LSA-R.S. 40:1299.41, et. seq. The Louisiana Patients' Compensation Fund Oversight Board (PCF) intervened. Thereafter, at a hearing, the trial judge granted the plaintiffs' motion for new trial, allowing them to challenge the constitutionality of the medical malpractice “cap.” On Aug. 4, 2003, the PCF filed a Motion for Summary Judgment on the issue of the constitutionality of the medical malpractice cap, which the trial court granted, finding that the medical malpractice cap did not violate the state or federal constitutions.

In their appeal, the plaintiffs contend that the trial court erred in reducing the general damages award to $500,000, because it is an unconstitutional disparity of treatment to impose the medical malpractice cap, which was enacted in 1975 without an adjustment for inflation. They argued that the PCF did not demonstrate a legitimate state objective in allowing the cap to be lowered annually due to the effects of inflation, and in allowing the same injuries that were fully compensated years ago under the cap to no longer be fully compensated due to the absence of a cost of living adjustment. The PCF responded that it was the power of the legislature, not the judiciary, to decide whether or not the act should be reformed to adjust the cap for inflation.

The court agreed with the PCF, noting that “[u]ndoubtedly, the legislature was aware of the effects of inflation and could have added provisions regarding inflation and adjustment of the $500,000 cap, but did not do so.” As it could find no constitutional violations in the law, the court held it had not authority to modify the existing legislation.references.

Insurer Need Not Defend Against Suit

An insurer was not required to defend in a malpractice action because although the suit alleged equipment deficiencies in an assisted-living apartment and the policy excluded primarily only injuries caused by deficient provision of medical services, the equipment that was not provided to the decedent was integral to the provision of medical services to him. Allstate Insurance Co. v. Disability Serivced of the Southwest Inc., No. 03-21197, 2005 U.S. App. LEXIS 2179 (5th Cir. 2/10/05).

This insurance dispute arose following the death of Kenneth Ray Lofton, a quadriplegic who had been in the care of Disability Services of the Southwest Inc. (DSSW). Lofton's family sued DSSW, claiming that DSSW was negligent in its provision of medical care to Lofton and in its failure to provide him with a usable telephone and emergency response device for emergencies. Allstate Insurance Company sought a declaratory judgment in the district court ruling that it had no duty to defend its insured, DSSW, in the lawsuit.

Lofton entered DSSW's 24-Hour Shared Attendant Program in 2000. The Program is administered by the Texas Department of Human Services (TDHS), which contracted with DSSW to provide care for the residents of the apartments. Within 2 or 3 days of arriving at the apartments, Lofton developed a severe urinary tract infection. He was unable to ask for medical assistance because his bedroom did not have the communication devices. Although there was a telephone located outside his bedroom, Lofton could not reach it as a quadriplegic, and would not have been able to use it because it could not be activated with a mouth stick. Unable to contact anyone to alert them of his condition, Lofton died 4 days after arriving at the apartments.

When Lofton died, DSSW was insured by Allstate under a commercial general liability policy. The policy covered claims of bodily injury or property damage “caused by an 'occurrence' that takes place on the 'coverage territory.'” The policy excluded any bodily injury or property damage arising out of the rendering or failure to render medical services.

The Lofton family brought suit against DSSW, alleging that it failed to provide adequate medical care, which led to Lofton's infection and his subsequent death. In the alternative, they alleged that regardless of the cause of the infection, DSSW failed to provide the communication devices. Allstate filed its motion for declaratory judgment claiming it owed no duty to defend DSSW because Lofton's injuries fell under the exclusion of coverage. The magistrate judge agreed, and granted summary judgment in favor of Allstate.

The dispositive inquiry was whether access to a telephone or emergency response device was excluded in coverage as a medical service under the policy. DSSW relied on Guaranty Nat'l Ins. Co. v. North River Ins. Co. , 909 F.2d 133 (5th Cir. 1990), which found an insurer liable to defend a suit involving the suicide of a patient who jumped from a window. The Guaranty Nat'l Ins. Co. court found that the decision not to place fixed protective screens over the windows, which could have prevented the suicide, was an administrative business decision rather than a professional medical decision excluded from coverage. This administrative business decision, the court ruled, was a cause of death independent of the failure to observe the patient, because the jury found that each separately was a proximate cause of the patient's death.

In determining what falls under the rubric of “professional services,” as opposed to a “business decision,” the court said, it had to consider the inherent skills typified by the profession in question. To qualify as a professional service, the task must arise out of acts particular to the individual's specialized vocation. Communication with patients is vital to providing “health” or “nursing” services. If Lofton had not been a quadriplegic, he would not have required communication devices that could be operated by a mouth stick. Providing this service to Lofton was integral, to the provision of a 24-Hour Shared Attendant Program for someone in Lofton's condition, as evidenced in the contract between DSSW and TDHS. Hence, the court found, this case was not analogous to Guaranty Nat'l, in which the hospital decided to use screws in the window sashes rather than fixed, protective screens. The contract between DSSW and TDHS made clear the purpose of the communication devices: it required DSSW to “arrange for each household to have a telephone or an emergency response device for requesting assistance in emergency situations and for requesting assistance with activities for daily living.” Thus, the claim that Lofton's death was caused by the failure to provide communication devices was inseparable from the Lofton family's claim that DSSW failed to provide adequate medical care, and the medical services exclusion applied. Accordingly, Allstate had no duty to defend DSSW.