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Multiple Caps for Multiple Negligent Acts

    (La. 11/19/99)

In a 5-2 decision involving interpretation of the Malpractice Liability for State Services Act (MLSSA), La. R.S. 40:1299.39 et seq., the Louisiana Supreme Court has recently held that the MLSSA allows multiple caps for damages when separate acts of negligence are ascertainable and the resulting injuries are separable. 

A.  Multiple Acts Caused Multiple Injuries

Ms. Deborah Batson, a thirty-seven year-old woman, was brought to the emergency room at South Louisiana Medical Center (SLMC) in July of 1990.  She was admitted to the hospital for treatment of a bleeding ulcer and underwent a surgical procedure to correct this condition. 

Pre-operatively and postoperatively, the treating physicians failed to prescribe antibiotics to prevent the onset of infection.  Within hours after her surgery, Ms. Batson began to exhibit signs of an infection.  Five days postoperatively, she was draining purulent material from her incision site, which had opened.  At that point, the physicians initiated antibiotic therapy.  By then, however, her infection had progressed into sepsis. 

As a result of the sepsis, Ms. Batson developed adult respiratory distress syndrome and was placed in the intensive care unit where she remained for more than six months.  During that six-month stay, she had a heart attack, extending her total hospitalization to nine months.  In the entire approximate nine-month hospitalization, the nursing staff of the hospital failed to reposition Ms. Batson as often as necessary to prevent the onset of bed sores.  She subsequently developed bed sores which resulted in severe scarring on the lower half of her body.   She ultimately underwent pigskin grafting to close the wounds and to improve the scarring.
In addition to these problems, Ms. Batson also suffered from flexion contractures of the hips, knees, and ankles, which caused her to draw up into the fetal position.  These contractures were caused by her prolonged immobilization during the hospitalization and would have been preventable with proper orthopaedic and physical therapy.  Although subsequent surgical procedures were moderately successful in correcting the flexion contractures, she still sustained permanent damage.     

As a consequence of Ms. Batson’s continued exposure to antibiotic therapy for her sepsis, she sustained a 62% loss in hearing.  She also suffered an injury to her brain resulting in permanent cognitive dysfunction which related to the sepsis.  The sepsis also caused a platelet deficiency which required a splenectomy.  During the splenectomy, she developed a near fatal blood clot. 

Finally, she was later diagnosed with diffuse intravascular coagulopathy, a condition that resulted in severe vaginal bleeding and which also required surgery and long-term catheterization.  The long-term catheterization and atrophy of the bladder caused urinary incontinence.  Following her discharge from SLMC, she was transferred to a nursing home where she remained for nearly two years.  At the time of the trial, she was primarily wheelchair bound and permanently disabled. 

B.  Initiation of Suit and the Lower Court’s Decision
Ms. Batson and her parents initially sued SLMC and the State of Louisiana alleging that her injuries were the result of SLMC’s negligence in (1) failing to properly and timely diagnose her condition; (2) failing to provide competent and adequate medical testing; (3) failing to provide the proper standard of care; and (4) failing to obtain informed consent.  They later amended their petition to add several private defendants.  The claims against the state defendants were tried to the bench and after a full week trial, the trial court rendered judgment in favor of plaintiffs finding that the state defendants had breached the required standard of care and that their negligence was the legal cause of Ms. Batson’s injuries.

The trial court’s judgment allowed multiple caps under the MLSSA and found the state defendants 100% liable for her sepsis, hearing and brain injuries, and incontinence.  The court awarded $249,791,000.03 for past medical expenses, $87,049.75 for future medical expenses, and $500,000.00 for other general and special damages.  With respect to the flexion contracture injuries, the trial court found the defendants 60% at fault and awarded Ms. Batson $322,169.95 for past medical expenses, $900,000.00 for future medical expenses, and $500,000.00 for other damages.  Finally, the trial court found the defendants 70% at fault in causing her bed sores and awarded Ms. Batson $78,352.36 for past medical expenses, $70,000.00 for future medical expenses, and $500,000.00 for general damages.

C.  Court of Appeals and Louisiana Supreme Court

The Louisiana Court of Appeals for the First Circuit reversed the trial court’s judgment and applied one $500,000.00 cap for all of plaintiff’s injuries and/or claims.  In so doing, the court relied upon Conerly v. State, 97-0871 (La. 7/8/98); 714 So.2d 709.  In that decision, the supreme court had previously held that when there is an act of malpractice causing the death of a patient, and the plaintiff brings a survival and wrongful death claim, the MLSSA allowed one $500,000.00 cap for both claims. The court of appeal further ruled that the cap on damages under the MLSSA was constitutional.  The trial court’s judgment was affirmed in all other respects. 
The Louisiana Supreme Court granted an application for writ of certiorari specifically to determine the question of whether only one cap applied to Ms. Batson’s injuries under the MLSSA.  The supreme court initially addressed the court of appeal’s reliance upon Conerly.  It reasoned that there was only one act of malpractice in Conerly and, thus, only one cap was recoverable.  Conerly did not address the issue of whether separate caps would apply to separate acts of negligence.  Finally, Conerly held that a claimant suing under the MLSSA could not recover more than a claimant who sued under the private act.

Turning to Ms. Batson’s injuries, the supreme court concluded that there were three major events or injuries; (1) sepsis, (2) bed sores, and (3) flexion contractures.  Thus, there were three torts, three groups of tortfeasors, and three injuries.  The court held that the MLSSA did not foreclose the possibility of a plaintiff’s recovering more than one cap for multiple injuries resulting from multiple acts of malpractice.  The court reasoned that the MLSSA limited recovery to $500,000.00 for “the injury” for “an alleged act of malpractice.”  The legislature’s use of the singular nouns “injury” and “act” denoted that it did not intend to limit a plaintiff to one recovery for multiple injuries resulting from multiple acts of malpractice.  Thus, the language of LSA R.S. 40:1299.39 (F) should be interpreted to indicate by inference that the total amount recoverable for each act of malpractice should not exceed $500,000.00.  The court concluded:

To hold that a plaintiff can only recover one cap regardless of how many times he or she is the victim of malpractice would imply that when a person enters a hospital and is the victim of an initial act of malpractice, all other healthcare providers have free reign to commit any number of additional negligent acts with full immunity.  Clearly, the legislature did not intend such an outrageous result.

    D.  Application to the Private Act

Justice Lemmon wrote a concurring opinion in which he dismissed the State’s argument that a single $500,000 recovery should apply because the malpractice which caused the sepsis was a cause-in-fact of the ulcers and flexion contractures.  He reasoned that although the original tortfeasor may well be liable for all of plaintiff’s injuries, each subsequent tortfeasor is also liable for the injury he or she caused by separate acts of malpractice.  “The $500,000 statutory cap is not part of the liability determination in which cause-in-fact plays a role, but rather comes into play in considering limitations on liability.”  Since the $500,000 limitation is considered special legislation in derogation of the rights of tort victims, strict construction militated against a single limitation for separate acts resulting in separate injuries. 

Chief Justice Calogero also concurred and specifically acknowledged that “the facts and the law in this case do not compel us to address the Medical Malpractice Act, which limits liability for private health care providers . . . .”  This statement was significant because Justice Traylor, in dissent, argued that the private act’s language did not preclude recovery of multiple caps under these facts.  Thus, he concluded that allowing recovery under the MLSSA would repudiate Conerly’s admonition against a claimant’s recovering more under the MLSSA than he could recover under the private act. 

Under Justice Traylor’s reasoning, if Batson withstands a request for rehearing and remains law, the private act must also afford claimants separate caps for separate acts of negligence which cause distinct injuries.