RUSSO v. KRAUS, 2010-0178, 2010-0179 (La.App. 4 Cir. 9/29/10)

.S. 37:1261 et seq. See Note, supra, 53 Tul. L. Rev. at 642 n. 10.

After reviewing the appellate record, however, we find that the plaintiffs/appellants present a compelling argument that La.R.S. 9:5628 fails to further an appropriate state interest as applied to Mrs. Russo and others similarly situated. In Whitnell v. Silverman, 93-2468, p. 6 (La. App. 4 Cir. 11/4/94), 646 So.2d 989, 994, reversed on other grounds, 95-0112 (La.12/6/95), 686 So.2d 23, the trial court held a three-day hearing that presented extensive evidence on the issue of whether a medical malpractice insurance crisis existed when La.R.S. 9:5628 was originally enacted (or later when the act was substantively amended). In its reasons for judgment, the trial court stated:

The evidence establishes that the Legislature enacted Act 808 of 1975 without the benefit of actuarial evidence specifically cally applicable to Louisiana's situation in 1975. Moreover, analyzing Mr. Lowe's, Mr. Wood's and Mr. Hurley's testimony, the Court finds that it is more probable than not that although the quantity of medical negligence cases being filed, the amounts being paid out by insurers, etc., were increasing, such was a normal actuarial aberration in figures that did not at that time (1975) warrant substantive action by the Legislature.

As recognized by our brethren of the Second Circuit Court of Appeal, Louisiana appellate courts presented with attacks on the constitutionality of La.R.S. 9:5628, as applied to diseases with latency periods in excess of three years, have upheld the statute on equal protection grounds. Walker v. Bossier Medical Center, 38,148, pp. 4-5 (La.App. 2 Cir. 5/12/04), 873 So.2d 841, 844 (hereinafter " Walker I"), decided by a vote of 3-2, held that the statute was an unconstitutional deprivation of due process as applied to Mrs. Walker, who had contracted Hepatitis C during a 1981 blood transfusion. The court also stated:

As noted in Walker, see Jeter v. Shamblin, 34,225 (La.App. 2 Cir. 12/6/00), 774 So.2d 1071; Martini v. Louisiana State University Medical Center-Shreveport, 28,167 (La.App. 2 Cir. 1/22/97), 688 So.2d 642; In re Medical Review Panel of Conerly, 02-0485 (La.App. 5 Cir. 12/30/03), 865 So.2d 198; Hardy v. Blood Systems, Inc., 01-0134 (La.App. 3 Cir. 5/2/01), 794 So.2d 13; Trahan v. Our Lady of Lourdes Regional Medical Center, Inc., 00-1140 (La. App. 3 Cir. 1/31/01), 778 So.2d 1205; Heal v. Pendleton Memorial Methodist Hospital, 99-0040 (La.App. 4 Cir. 4/21/99), 733 So.2d 698; In re Medical Review Panel of Brown, 97-2803 (La.App. 4 Cir. 7/1/98), 715 So.2d 1249; Doe v. Southern Baptist Hospital, 98-0063 (La. App. 4 Cir. 5/6/98), 717 So.2d 654. But see In re Matter of Trahan, 03-1002 (La.App. 5 Cir. 1/27/04), 866 So.2d 907, a case involving a claimant with a disease with a latency period in excess of three years, in which the Fifth Circuit, finding that the constitutional question was not properly before it for review, set aside the judgment sustaining the defendant's exception of prescription and remanded the matter to the trial court to allow the plaintiff an opportunity to properly litigate the constitutional challenge.

To find La.R.S. 9:5628 constitutional as applied to plaintiffs who suffer from diseases with latency periods which prohibit their manifestation and discovery until well after the three-year, event-oriented period provided by Section 5628 would be to prevent a small number of the least blameworthy, yet most seriously injured claimants from having their day in court. To do so would divest such plaintiffs of their fundamental right to due process through the legal system while allowing defendant health care providers to avoid accountability and litigation.

Id. at pp. 6-7, 873 So.2d at 845. [Emphasis in original] However, the court limited its conclusion to hold that La.R.S. 9:5628 was unconstitutional only as applied to these claimants. In declining to apply R.S. 9:5628 to bar the plaintiffs' cause of action in Walker I, the court found that:

[W]hile the Medical Malpractice Act, including its peremptive period, is rationally related to a legitimate govern ment interest, reasonable medical costs, and readily available health care, the statute's rote application in the case sub judice does not further such interests and ignores the rights of innocent medical malpractice claimants. To require a plaintiff to assert a claim before the alleged malpractice and resulting injury are discoverable imposes an impossible condition on her access to the courts and the pursuit of her tort remedy.

Id. at p. 7, 873 So.2d at 845.

The hospital sought review by the Supreme Court. Finding that Walker I appeared to conflict with Williams v. Jackson Parish Hospital, 33,847 (La.App. 2 Cir. 10/20/00), 768 So.2d 866, rev'd on other grounds, 00-5170 (La.10/16/01), 798 So.2d 921, the Supreme Court vacated the judgment and remanded the case for an en banc hearing. Walker v. Bossier Medical Center, 04-1797 (La.2/25/05), 894 So.2d 1096.

The Court stated:

Bossier Medical Center and the State of Louisiana seek review of a judgment of the court of appeal which declares La.R.S. 9:5628 unconstitutional. Pretermitting the merits, we observe that the court of appeal's opinion in the present case appears to be in conflict with Williams v. Jackson Parish Hospital, 33,847 (La.App. 2 Cir. 10/20/00), 768 So.2d 866, reversed on other grounds, 00-3170 (La.10/16/01), 798 So.2d 921, in which a different panel of that circuit found La.R.S. 9:5628 to be constitutional. The majority opinion in the case at bar does not distinguish Williams, nor does it overrule that decision.

In light of this apparent conflict within the circuit, we find it appropriate to vacate the judgment of the court of appeal and remand the case for an en banc hearing. See, e.g., Lamson Petroleum v. Hallwood Petroleum, 02-1338 (La. 10/25/02), 832 So.2d 975.

Id.

On remand, the court en banc found the statute constitutional. See Walker v. Bossier Medical Center, 38,148 (La.App. 2 Cir. 5/11/05), 902 So.2d 1228. The court stated that to successfully challenge the validity of Section 5628 on equal protection grounds, the plaintiffs bore the burden of proving that the statute did not further an appropriate state interest. However, the court found that the plaintiffs failed to satisfy their burden in light of prior Supreme Court findings that the three-year limitation period was intended by the legislature to alleviate increased insurance costs attributed to the extended period available for filing medical malpractice claims and that the statute was rationally related to the state's interest in attempting to provide the public with accessible health care at reasonable costs. Id. at p. 7, 902 So.2d at 1234-35.

In Whitnell v. Silverman, 95-0112 (La. 12/6/95), 686 So.2d 23, the Supreme Court reversed this court's finding that La.R.S. 9:5628 violated La.Const. Art. I, § 3, in that it unreasonably discriminated against Mrs. Whitnell on the basis of physical condition, thereby creating a classification prohibited by the Louisiana Constitution. To support our position, we noted the testimony of Stuart Hoffman, M.D., who provided an illustrative list of 19 diseases with latency periods in excess of three years. The list of the 19 diseases with latency periods in excess of three years consisted of the following:

1. Carcinoma of the cervix-in situ-pap smear

2. Mammographic evidence of breast carcinoma-non-palpable

3. Familial hypolipidemia

4. Asymptomatic coronary atherosclerosis

5. Early stage multiple myeloma

6. Von Willbrand's disease

7. Leukoplakia

8. Colon polyps

9. Malignant melanoma behind ear

10. Aneurysm — thoracic aorta — cerebral artery

11. Early stage ovarian carcinoma

12. Chronic active hepatitis

13. First degree heart block

14. Second degree heart block

15. Petit mal seizures

16. Congenital absence of the spleen

17. Pernicious anemia

18. Gout

19. Blood Transfusion Acquired AIDS

The Court found Section 5628 constitutional as applied to Mrs. Whitnell as her medical condition was discoverable within the three-year period. Additionally, because her medical condition was not included among the nineteen diseases listed above, the Court held that the lower courts erred in finding the statute unconstitutional as applied to individuals with diseases which have latency periods in excess of three years. Because she was not in the class of persons with latent diseases, the plaintiff had no standing to assert constitutional attacks for third parties who were not before the Court. However, the Court stated:

This ruling by the Court does not address the constitutionality of La.R.S. 9:5628 as it applies to individuals with diseases that have latency periods in excess of three years. The court has basically declined to decide on this issue because it is not presently before it.

Id. at p. 9 n. 13, 686 So.2d at 29 n. 13.

In his dissent in Whitnell, Justice Lemmon noted:

A case with a lengthy latency period might call for our reexamination of the Crier decision on the constitutionality of Section 5628. Section 5628 distinguishes not only between victims of medical malpractice and victims of other torts, but also between medical malpractice victims with injuries that manifest themselves within three years and victims with injuries that remain latent beyond three years. While such classifications are usually analyzed for equal protection purposes under a rational basis standard (the asserted rational basis being the perceived medical malpractice insurance crisis in the 1970s), there are also due process implications to the analysis.

There have been suggestions that only a small percentage of medical malpractice claimants are affected by a three [sic] year statute of repose. The converse, however, is equally true — only a small percentage of claims against health care providers are eliminated by such a statute. Depriving a few perhaps horribly injured innocent victims of their claims in order to relieve a few health care providers of late filing problems such as lost evidence, faded memories and unavailable witnesses appears to be fundamentally unfair, which is the hall-mark of a due process violation. The medical malpractice victim, who has the ultimate burden of proof at trial, labors under the same difficulties caused by the late manifestation of an injury, which is not attributable to the victim.

Id. at p. 3 n. 5, 686 So.2d at 33 n. 5. [Citation omitted.]

In David v. Our Lady of the Lake Hospital, 02-2675, p. 18 (La. 07/02/03), 849 So.2d 38, 51-52, the Court again left open the issue of the constitutionality of the statute as it applies to an action filed by a claimant with a disease whose latency period exceeds three years:

Nevertheless, equity suggests that since the jurisprudence addressing the applicability of LSA-R.S. 9:5628 to a cause of action such as David's has been in a state of flux, remand is proper under the extraordinary circumstances encountered during this prolonged litigation. Further, this court has left open the issue of the constitutionality of LSA-R.S. 9:5628 as it applies to bar an action by a person suffering from a disease with a latency period in excess of three years. See Whitnell v. Silverman, 95-0112, p. 9 n. 13 (La.12/06/96), 686 So.2d 23, 29 n. 13. Pursuant to LSAC.C.P. art. 2164, which permits appellate courts to remand cases when the interest of justice is served, we sustain OLOL's exception of prescription, but remand this matter to the trial court to allow David an opportunity to file an amended petition urging the constitutional challenge. [Emphasis supplied; footnotes omitted.]

In the instant case, the parties agree that Mrs. Russo died from squamous carcinoma in situ, a disease with a latency period exceeding three years. One can say that the record before us shows that her medical condition is substantially identical and/or similar to the first disease on the Whitnell list. In order to be more certain, on remand at the Sibley hearing, the parties should put forth evidence into the record to establish that squamous carcinoma in situ is one of the nineteen diseases in Whitnell and/or that it should be added to the list of nineteen. We note further that the Supreme Court has neither criticized nor repudiated that list. On two separate occasions, the Court has acknowledged that the issue presented herein is open.

The trial court may, in its discretion, bifurcate the trial of this issue from the remainder of the Sibley hearing issues as discussed in this opinion below.

Consequently, we presently decline to find that La.R.S. 9:5628 is unconstitutional as applied to Mrs. Russo and third parties with diseases with latency periods in excess of three years by violating La.Const. Art. I, § 3. The statute, although facially neutral, creates two classes of medical malpractice victims: (1) those whose injuries are discoverable within three years and (2) those whose injuries are not. As applied to the second class, the statute does not afford them the same protections as it does to the first class.

The plaintiffs/appellants also challenge the constitutionality of La.R.S. 9:5628 on the basis that its application deprives them of the constitutional right to access to the courts. Article I, Section 22 of the Louisiana Constitution of 1974 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

As the Supreme Court determined in Crier, supra, the constitutional guarantee of access to courts and a remedy for injuries does not warrant a remedy for every single injury. In that case, the Court examined the historical background of Article I, Section 22 of the Louisiana Constitution and concluded that in adopting this constitutional article, the Constitutional Convention did not intend to limit the legislature's ability to restrict causes of action or to bar the Legislature from creating various areas of statutory immunity from suit. The Court further acknowledged that the establishment of statutes of limitations (prescriptive periods) is within the scope of legislative authority, and that enactment of same does not eliminate the remedy for a civil wrong. The Legislature essentially makes a legislative determination that after a certain period of time, no cause of action can arise. Moreover, "[w]here access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not arbitrary." Crier, 496 So.2d at 310 (citing Bazley v. Tortorich, 397 So.2d 475 (La. 1981)).

In the case at bar, one may reasonably assert that Mrs. Russo was part of a class disadvantaged by the enforcement of La.R.S. 9:5628, and further, that the statute is unconstitutional as applied to her under the facts of this case. The evidence so far appears to indicate that Mrs. Russo could not have discovered her cervical cancer within the three years afforded by the statute. Under these circumstances, one may reasonably assert that Mrs. Russo was afforded less consideration or protection than other tort or medical malpractice victims subject to the statutory prescriptive periods promulgated by the Legislature. But again, we presently decline to find that La.R.S. 9:5628 unconstitutionally deprived Mrs. Russo of access to the courts under the facts of this case.

In Kenyan v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984) (en banc), the Supreme Court of Arizona addressed the question of whether its three-year statute of limitations for medical malpractice actions was constitutional. The plaintiff therein could not have known that her doctor committed malpractice until approximately six years after the "injury" took place. The trial court granted the defendant health care providers' motion for summary judgment, which was reversed by the intermediate appellate court. The Supreme Court granted review.

When reviewing the equal protection claim under the Arizona constitution, the Court applied a strict-scrutiny test similar to that of Louisiana: "Under this method a discriminatory statute may be upheld only if there is a `compelling state interest' to be served and the regulation is `necessary' to achieve the legislative objective." Id. at 78, 688 P.2d at 970. To aid it in its determination, the Court relied on the evidence in the record:

The parties seem to agree that the statistics contained in the Report of the Secretary's Commission on Medical Malpractice, supra at 254, indicate that over 88% of all medical malpractice injuries which result in claims are reported within the first two years following injury, that 95 to 96% of all claims have been reported within three years, 97% within four years and only 2% are unreported after five years. ATLA Amicus Brief at 3; defendant's supplemental brief at 17; see also S. Law and S. Polan, Pain and Profit: The Politics of Malpractice 122-23 (1978), quoting the National Association of Insurance Commissioners study of claims paid from July of 1975 through June of 1976. These statistics indicate to us that the "long tail" caused by the discovery rule is not a significant portion of the problem. If prompt actuarial certainty is required, reduction of the statute of limitations would have been a much more rational method of achieving the compelling state interest than abolition of the discovery rule and consequent abrogation of the few and unusual claims where, because of lack of knowledge or disability, the claimant was unable to bring the action within the flat time limits.

Id. at 86, 688 P.2d at 978.

Although we find that Kenyan was sufficient evidence for Arizona's purposes to establish no insurance crisis existed in 1975, being the same time frame of when La.R.S. 9:5628 was first enacted or when subsequent substantive amendments were passed, no evidence exists in the appellate record before us that the small percentage of claims that might be filed by an injured party would have any effect on either healthcare costs, malpractice insurance premium rates, or the affordability of healthcare in Louisiana. To be certain that such was the case in Louisiana in 1975 and when substantive amendments to Section 5628 were enacted, we find that a remand is warranted. Thus, we find that a Sibley hearing is warranted for the pur-pose of placing into evidence the necessary testimony, documents, and other evidence to permit the trial court to reach a conclusion.

Based on the foregoing, we do not presently hold or find La.R.S. 9:5628 unconstitutional as applied to the narrow group identified above. Consequently, we reverse the summary judgments and exception of prescription granted by the trial court. We remand the matter for further proceedings consistent with this opinion. At the Sibley hearing, the court should consider, inter alia, (a) whether the proper parties plaintiff are before the court ( see footnote 1, supra), (b) whether a medical insurance crisis existed when La.R.S. 9:5628 was enacted (and when the statute was later substantively amended), and (c) if Mrs. Russo's disease is one of the nineteen diseases cited in Whitnett, supra, or should be added to the list.

REVERSED; REMANDED.

BONIN, J., Concurs with Reasons.