View Our Practice Areas

The (Un)Availability of Multiple General Damage Cap Recoveries for Private Medical Malpractice in Louisiana

Tulane Law Review
May, 1997

Comment

THE (UN)AVAILABILITY OF MULTIPLE GENERAL DAMAGE CAP RECOVERIES FOR PRIVATE MEDICAL MALPRACTICE IN LOUISIANA

Copyright © 1997 Tulane Law Review Association;

Louisiana is in the minority of jurisdictions that imposes a cap on the general damages a medical malpractice plaintiff can recover. The cap, Louisiana Revised Statute 40:1299-42(B), is imposed "for all malpractice claims for injuries to or death of a patient..." However, it is unclear under what circumstances a plaintiff may recover general damages in excess of the cap. Other jurisdictions, such as Texas, Indiana, and the Virgin Islands, which also impose damage caps, have concluded that in certain situations plaintiffs may indeed recover damages in excess of their statutory cap. Factors in the various analysis include: (1) the number of defendants, (2) the definition of "injury," (3) the number of injuries, (4) the divisibility of injuries, and (5) the definition of an "occurrence" of medical malpractice. This Comment examines the situations under which a medical malpractice plaintiff in Louisiana could recover general damages in excess of the statutory cap. As a vehicle for this analysis, the author uses the Louisiana Supreme Court's recent decision in Turner v. Massiah, which held that, under its facts, the plaintiff could not recover multiple damage caps, but left open the possibility of another medical malpractice plaintiff doing so. The author concludes that, after the near-total abolition of solitary liability in Louisiana, it will become easier for plaintiffs to overcome the hurdles imposed by the supreme court in Turner, and to recover general damages in excess of the cap, as both law and equity should allow.

  1. Introduction

  2. Factual Scenario--Turner v. Massiah

  3. Statutory Construction of Damage Caps

  4. The Louisiana Approach--Multi factor Stuka Analysis

    1. The Turner Courts' Approaches

      1. Lower Courts

      2. Turner in the Louisiana Supreme Court

    2. Focus on the Stuka Factors

      1. Duty-Risk

      2. Solitary Liability

      3. Apportionment of Fault/Severability of Injury

  5. Virgin Islands, Indiana, and Texas Approaches to Recovery of Multiple Damage Caps

    1. The Virgin Islands Approach

      1. Per-Occurrence Analysis

      2. Application of Virgin Islands Approach to Factual Scenario of Turner

    2. The Indiana Approach

      1. Per-Injury Analysis

      2. Application of Indiana Approach to Factual Scenario of Turner

    3. The Texas Approach

      1. Per-Defendant Analysis

      2. Application of Texas Approach to Factual Scenario of Turner

  6. VI. Proposed approaches to Multiple Damage Cap Recoveries in Louisiana

I. Introduction

In the mid-1970s many states perceived a threat to the general availability of health care--increasingly large medical malpractice recoveries.[FN1] To combat this threat, forty-nine states enacted medical malpractice damage caps.[FN2] Some, like Indiana, placed a cap on the total allowable recovery, including both special and general damages.[FN3] Others placed a cap on only general damages. For example, Louisiana limits general damages "for all malpractice claims for injuries to or death of a patient" to $500,000.[FN4] To date, most damage caps have been declared unconstitutional under state law[FN5] or interpreted to allow multiple recoveries of the statutory maximum.[FN6]

This Comment addresses the possibility of a victim of private medical malpractice in Louisiana recovering general damages in excess of the statutory cap of $500,000 because of multiple injuries or multiple defendants. The question came before the Louisiana Supreme Court for the first time, in 1995, in the case of Turner v. Massiah.[FN7] In Turner, the trial court prevented the plaintiff from recovering jury-awarded damages in excess of the damage cap, even though there were multiple defendants and, arguably, multiple injuries, and the Louisiana Fifth Circuit Court of Appeals subsequently upheld the decision.[FN8]

Part II of this Comment establishes Turner as an example of an actual body of facts that can be used for analyzing the various approaches to the issue. Part III addresses the proper method of statutory construction for statutes limiting plaintiffs' recovery of general damages. Part IV discusses in detail the approaches taken by the Turner district, appellate, and supreme courts to arrive at their decisions. Part V then examines the approaches to the issue taken by other jurisdictions which have imposed damage caps on medical malpractice recovery--the Virgin Islands, Indiana, and Texas. In conclusion, Part VI of this Comment proposes a more accurate and realistic approach to the Louisiana damage cap.

II. Factual Scenario--Turner v. Massiah

Janice Turner suffered from Stage 2 breast cancer[FN9] as a result of the independent acts of malpractice of Drs. Hamid Massiah,[FN10] a plastic surgeon, and Simon Ward, an obstetrician and gynecologist.[FN11] Turner's injuries included a sixty percent loss of chance of recovery and a radical mastectomy.[FN12]

On May 14, 1984, Turner underwent elective breast augmentation surgery performed by Dr. Massiah.[FN13] Almost immediately after the surgery Turner complained of a hardening in her right breast, which Dr. Massiah attributed to scar tissue from the surgery.[FN14] Between May 1984 and January 1987, Turner visited Dr. Massiah a total of twelve times and Dr. Ward twice, each time complaining of the growing lump in her breast.[FN15] Dr. Massiah believed that the lump was harmless scar tissue and ordered no diagnostic tests.[FN16] Dr. Ward, for his part, ordered no diagnostic tests because "he did not feel it was his responsibility."[FN17]

Dissatisfied with her treatment, Turner went to other doctors who, after ordering routine mammograms and a biopsy, discovered that she had breast cancer.[FN18] Turner underwent a radical mastectomy, having the entire breast and some of the lymph nodes and underlying muscle removed.[FN19] The doctors determined that the cancer had spread to seven additional lymph nodes and had reached Stage 2.[FN20] As a consequence of the significant delay in diagnosis, Turner's chance of survival dropped from 85% to 25%.[FN21]

Turner and her husband brought suit against Drs. Massiah and Ward.[FN22] The jury, in response to interrogatories, apportioned fault between Massiah and Ward as 60% and 40%, respectively.[FN23] For loss of the breast, physical disfigurement, and past pain and suffering, the jury awarded $250,000; and for loss of chance of survival and future mental distress, it awarded $750,000. The million-dollar total was twice the statutory cap.[FN24] The trial court and appellate court, however, denied any recovery in excess of the cap.[FN25]

On appeal, the Louisiana Supreme Court held that when a medical malpractice victim suffers but one indivisible injury, regardless of the number of tortfeasor or acts of malpractice, a single cap of $500,000 on general damages will be imposed under the Medical Malpractice Act.[FN26]

III. Statutory Construction of Damage Caps

While the American Bar Association (ABA) has condemned the limitation of special damages in medical malpractice actions,[FN27] it has expressed no opinion on whether general damages should be limited.[FN28] In its report on the trend of placing caps on malpractice damages, the ABA stated that policies in favor of general damage caps are such that a ceiling on general damages would contain jury awards within realistic limits, reduce the exposure of insurers (which reductions could be reflected in lowered premiums), lead to more settlements and less litigation, and enable insurance carriers to set more accurate rates because of the greater predictability of the size of judgments.[FN29]

These considerations presumably led to the passage of the Louisiana Medical Malpractice Act.[FN30] Conversely, the ABA stated that considerations militating against general damage caps include the policies that medical malpractice should not be distinguished from other areas of professional malpractice or personal injury actions which have no ceiling on general damages, that general damages are as real to the plaintiff as economic loss, that a wrongdoer should pay for all the losses he has caused, including pain and suffering, and that the general damages portion of an award provides a fund out of which the plaintiff's attorney's fees can be deducted without leaving the plaintiff economically under compensated.[FN31]

Since the traditional tort-recovery scheme allows unlimited general damages, damage-cap statutes are considered "special [legislation] in derogation of the general rights available to tort victims."[FN32] Therefore, courts should interpret such legislation strictly and narrowly to protect the remaining rights of victims.[FN33] The presumption should be in favor of the maximum recovery to the plaintiff within the plain limits of the statute.[FN34] The Turner court strictly construed section 40:1299.42 of the Act, but from the wrong perspective. Rather than providing the maximum recovery to the plaintiff within the plain meaning of the statute, the Louisiana Supreme Court minimized the plaintiff's general damages in a zealous effort to effectuate the statute's purposes. Strict construction of special legislation should be used to protect the plaintiff's abrogated rights, not the policy behind the statute.

IV. The Louisiana Approach--Multi factor Stuka Analysis

The Medical Malpractice Act (Act) governs general damages for medical malpractice committed by private health care providers in Louisiana. The Act states:
The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.[FN35]

A. The Turner Courts' Approaches

1. Lower Courts

The trial court in Turner interpreted the Act as allowing a recovery of up to $500,000 for the damages caused by each doctor's negligence, for a total possible recovery of $1,000,000.[FN36] Applying the jury's apportionment of fault, the court determined that the general damages caused by Dr. Massiah (60% at fault) were $600,000.[FN37] Because of the $500,000 statutory cap on the damages caused by his negligence, the court reduced this amount to $500,000. This resulted in Dr. Massiah being liable for $100,000 and the Patient's Compensation Fund (PCF) paying the residual $400,000.[FN38] Similarly, the court found the damages caused by Dr. Ward (40% at fault) were $400,000, with Ward paying $100,000 and the PCF paying the residual $300,000.[FN39]

Massiah and the PCF appealed the judgment.[FN40] In affirming the judgment and the application of two caps, the Louisiana fifth circuit looked to Justice Dennis's concurring opinion in Stuka v. Fleming.[FN41] In his concurrence, Justice Dennis set forth three nonexclusive factors for determining when a victim could recover multiple damage caps.[FN42] He stated:
I am reluctant to conclude that the Fund may never be made to pay more than $400,000 for injuries contributed to by more than one health care provider-tortfeasor. Whether a single limitation applies to damages caused by plural defendants may depend on such factors as whether the defendants engaged in concerted action, whether the damages are severable, or whether the damages may be apportioned between the tortfeasor.[FN43]

The Turner appellate court found that the Act constitutes special legislation "in derogation of common or natural rights [and] is to be strictly construed and not extended beyond its obvious meaning."[FN44] Consequently, the Louisiana fifth circuit construed the Act the same as the trial court and concluded that one cap should apply to each act of negligence by each doctor.[FN45] The result allowed Turner to recover twice the cap.[FN46]

However, in its incomplete analysis, the Louisiana fifth circuit evaluated only the first of the three nonexclusive Stuka factors. It found no concerted action between Massiah and Ward, and that each, in his independent capacity, breached the standard of care owed to Mrs. Turner.[FN47]

The fifth circuit posited an additional, constitutional reason for allowing multiple recoveries under the private malpractice section of the Act. The court found a variance in language when it compared the Act's parallel provisions for private medical malpractice[FN48] and public medical malpractice (e.g., university hospitals).[FN49] The public provider malpractice provision imposes a $500,000 cap on general damages "for an alleged act of malpractice."[FN50] However, the private version uses slightly different language, referring to "claims" for its cap.[FN51] The court cautioned that a construction of the private version of the Act that permitted less recovery for injuries inflicted by a private health care provider than for those inflicted by a public health care provider would be arbitrarily discriminatory and in violation of the equal protection clauses of the Louisiana and United States Constitutions.[FN52] Thus, to maintain the constitutionality of the Act, the fifth circuit held that the private provision must provide the same protection as the public provision and allow one cap for each act of malpractice, rather than for each claim.[FN53]

2. Turner in the Louisiana Supreme Court

On appeal, the Louisiana Supreme Court[FN54] misconstrued the difference between the legal causation and apportionment of fault inquiries, mischaracterized the plaintiff's injuries, and improperly evaluated the circumstances, alluded to in Stuka,[FN55] under which a plaintiff can recover general damages in excess of the liability cap imposed by the Medical Malpractice Act.[FN56] The court held that, under the duty-risk analysis, which is used to determine legal causation in medical malpractice cases,[FN57] a doctor has a duty to correctly diagnose a patient's illness, and that duty includes the risk that another doctor will incorrectly diagnose the illness.[FN58] The risk for an incorrect diagnosis is the resulting injury or injuries.[FN59] The Louisiana Supreme Court defined this risk as the possibility of the patient contracting Stage 2 breast cancer.[FN60] Because the same analysis applied to both doctors, the court held that each was liable for 100% of Turner's injuries. The doctors' liability "was based on more than the imposition of a solitary obligation between joint tortfeasor; [[each doctor's] liability for all of the victim's damages resulted because [[each doctor] was the legal cause of all of the victim's harm."[FN61] The court concluded that the facts of this case, evaluated under the Stuka factors, did not allow the plaintiff to recover multiple caps.[FN62] It held that, when there are "two providers, two torts, one patient, and one injury... the total amount recoverable is $500,000."[FN63]

In analyzing legal causation and apportionment of fault, the court admonished the Louisiana fifth circuit that "percentage of fault and legal cause are two separate inquiries."[FN64] Then, using only the duty-risk analysis, the court determined that each doctor was the legal cause of 100% of the plaintiffs injuries because a doctor has the duty to diagnose a patient's illness and bears the risk for the failure to do so.[FN65] Included in the duty to diagnose is the risk that another doctor will misdiagnose.[FN66] In so stating, the supreme court implicitly determined that the negligence of another doctor is not an intervening or superseding cause of the victim's harm. It then reasoned that, since the negligence of either doctor was sufficient to cause the harm in and of itself, the negligence of each doctor was "the legal cause of the entire harm."[FN67] Important insight into this holding is provided by the statement that "each tortfeasor's liability for all of the tort victim's injuries was based on more than the imposition of a solitary obligation...; his liability for all of the victim's damages resulted because he was the legal cause of all of the victim's harm."[FN68]

In the midst of this analysis, the court characterized the plaintiff's injury as Stage 2 breast cancer,[FN69] even though the jury awarded damages for, first, loss of the breast, disfigurement, and pain and suffering; and second, loss of chance of survival and future mental distress.[FN70] The court again mischaracterized Turner's injuries when looking at the Stuka factors to determine whether she might recover multiple caps.[FN71]

The characterization of the plaintiff's injury as Stage 2 cancer is crucial to the court's analysis of the Stuka factors. Again, Justice Dennis suggested in Stuka that multiple caps may be available depending on "whether the defendants engaged in concerted action, whether the damages are severable, or whether the damages may be apportioned between the tortfeasor."[FN72] The court ignored the first Stuka factor,[FN73] whether the defendants acted in concert, but determined that neither of the other two factors--severability of injury or apportionment of damages between the defendants--were evident under these facts.[FN74] The court stated that "the injury was indivisible because it could not be divided up into parts... traceable back to a specific delectable origin."[FN75]

Furthermore, the damages were incapable of apportionment because there was no way to tell when the cancer started, and thus no way to determine which doctor contributed what percentage of fault to the injury.[FN76] The supreme court noted that "damages cannot be calculated with reference to any other date than when the cancer was discovered."[FN77] The court then relied on Prosser and Keeton in holding that the damages could not be apportioned because there was no logical basis for attributing one aspect of the injury to one doctor and the rest to the other.[FN78] Thus, the majority's interpretation of the last two Stuka factors seems to be that they are asking the same question--whether the court can tell specifically who caused what injury. An injury is severable, according to the court, if it can be determined which defendant caused what part of it, and damages can be apportioned if it can be determined which defendant caused what part of them.[FN79] The supreme court read the Act as imposing a "per injury" cap on general damages and, from its Stuka analysis, determined that for any single injury, the plaintiff can recover only one cap.[FN80]

Justice Kimball, however, criticized this reading of the Act.[FN81] Her dissent began with a watertight construction of the Act. She interpreted "the total amount recoverable for all malpractice claims for injuries"[FN82] to allow a separate cap for each malpractice claim.[FN83] She stated that, "indeed, when the word 'all' is used in tandem with a plural noun such as 'claims' in this case, 'all' means 'each and every one of."[FN84] Upon examining the definitions provided in the Act, Kimball determined that a malpractice claim is "a claim for a breach of duty or a negligent act on the part of a health care provider which causes damage to a patient."[FN85] Though this construction by itself would allow the plaintiff to recover multiple caps under these facts (i.e., Turner would have a separate cause of action against each doctor because each was a legal cause of her injuries), Kimball nevertheless proceeded into the Stuka analysis. Kimball characterized the majority's analysis as one which, rather than using the Stuka analysis, determines the availability of multiple caps solely on the basis of severability of the injury.[FN86] Justice Kimball noted that "this invariably leads to absurd results."[FN87] Under such an analysis, only one cap is available when a victim is killed by the independent and unrelated acts of malpractice of multiple doctors because the injury is not severable.[FN88] However, if the victim had not died, the plaintiff could recover a separate cap for each injury so long as the injuries were severable.[FN89] Because of these "absurd" results, Kimball embraced a multi factor approach to multiple caps, adding to the original Stuka factors "the relationship between the acts of malpractice, i.e., did the acts occur during the same operation or procedure, or were they greatly separated in time and place."[FN90]

It is unclear what these (now) four factors really address, but it seems that on some level the inquiry is basically "How many injuries were there?". The inquiries into whether the defendants engaged in concerted action and whether the acts were related in time and place seem to form a causation-oriented approach to single/multiple occurrences.[FN91] If the acts occurred during the same surgery or if the doctors were engaged in concerted action (i.e., one doctor referred the patient to the other), the causation approach would view the resulting injury or injuries as constituting a single occurrence, because they flowed from one cause: an uninterrupted, continuing course of treatment.[FN92] On the other hand, a focus on severability of injury and apportionment of damages seems to be an "effects" approach to single/multiple occurrences.[FN93] In other words, if the injury is severable, it can actually be viewed as multiple injuries,[FN94] regardless of what caused it. This is essentially the effects approach to single/multiple occurrences.[FN95]

Four factors thus led Justice Kimball to conclude that multiple caps should be available in this case.[FN96] First, she determined that each doctor breached the duty he owed to Mrs. Turner over a span of several years.[FN97] She found, therefore, that "the acts of malpractice were not so closely related in time so as to bar a second recovery."[FN98] She also concluded that there was no concerted action, because "neither doctor recommended Mrs. Turner to the other."[FN99] In agreement with Justice Lemmon's concurrence,[FN100] Justice Kimball found, further, that fault could be apportioned.[FN101] Lastly, she argued that the damages were severable because, as cancer progresses, the treatments become more painful and costly, and the victim's chance of recovery decreases.[FN102] Though these statements are unclear, Kimball's theory is that an injury[FN103] is severable if it has multiple components, i.e., loss of chance of survival, economic loss,[FN104] and pain and suffering. However, Kimball stated that "even if the damages are indivisible, the other factors strongly militate against the application of one cap in this case,"[FN105] and thus she would allow recovery of multiple caps regardless of the treatment of Turner's injury or injuries.

B. Focus on the Stuka Factors

The Stuka analysis, similar to the "per occurrence" approach to recovery of multiple caps, looks at several factors, including, but not limited to, the connection, if any, between the defendants' actions, the severability of the victim's injuries, and the apportionability of fault and damages.[FN106] Once it is determined that each defendant is a legal cause of the plaintiff's injuries, the Stuka analysis may be used to determine whether the plaintiff can avail herself of multiple caps.[FN107] Though difficult to distinguish at times, the Stuka factors are nevertheless distinct, and apportionment of fault and damages do not hinge on severability of injury.

1. Duty-Risk

Because the Louisiana Supreme Court has improperly joined the questions of legal causation and percentage of fault, the duty-risk analysis (used to determine legal causation in Louisiana medical malpractice cases)[FN108] is the proper place to begin the Stuka analysis.[FN109] Duty-risk is analogous to proximate cause in that it determines legal causation--whether, once it is established that the defendant was a cause in fact of the injury or injuries, the defendant will have to respond in damages.[FN110] However, the two theories are quite different. Duty-risk is decided by the court and is based almost exclusively on policy, whereas proximate cause is decided by the jury and is based exclusively on foreseeability of injury.[FN111] Under the duty-risk analysis, the court looks at the particular circumstances surrounding the case at bar and makes a policy determination of whether the defendant(s) ought to be held liable for the resultant injuries.[FN112] The question is "whether the risk of injury from ["x" behavior] is within the scope of protection of a rule of law which would prohibit [that behavior]."[FN113] In other words, if the legislature were to promulgate a rule forbidding what the defendant did, would it do so in part because of the injury to the plaintiff? Would the risk of the plaintiff's injury have been encompassed within a rule forbidding the defendant's behavior? If so, the defendant's action or inaction is a legal cause of the plaintiff's injury or injuries. In determining whether a duty-risk relationship is present, "the same policy considerations which would motivate a legislative body to impose duties to protect [people] from certain risks are applied by the court in making its determination."[FN114] These policy considerations include "morality, the economic good of the group, practical administration of the law, justice as between the parties,"[FN115] foreseeability,[FN116] and a version of Learned Hand's famous formula "B > PL.'[FN117]

2. Solidary Liability

When, through the duty-risk analysis, multiple defendants are found to be legal causes of the plaintiff's injury/ies, all that accrues is solitary liability for the defendants.[FN118] Solidary liability in a medical malpractice case means that the plaintiff may recover up to 50% of her damages from any defendant, regardless of their actual fault.[FN119] It does not mean that the defendant from whom the plaintiff recovers 50% of her damages is actually 50% at fault.[FN120] Neither does it mean that a defendant who is less than 50% at fault is stuck "holding the bag" for more damages than he caused.[FN121] Rather, solitary liability defines only the liability relationship between the defendants and the plaintiff--it does not determine the defendants' ultimate liability. Illustrative of this point is the statement in Steptoe v. Lallie Kemp Hospital that "the solitary liability of the... defendants does not determine their rights in relation to each other."[FN122]

3. Apportionment of Fault/Severability of Injury

After one determines that solitary liability has arisen because each defendant was a legal cause of the injuries, there must be a further inquiry into the defendants' actual fault,[FN123] which defines the defendants' rights in relation to each other. These rights consist of contribution and indemnity.[FN124]

To effectuate this, Article 1812(C) of the Louisiana Code of Civil Procedure requires that, after legal causation is determined, "the degree of such fault [must be] expressed in percentage."[FN125] Once apportionment of fault is accomplished, Civil Code Articles 1804 and 2324 allow a defendant who pays damages in excess of those he actually caused to seek contribution and indemnity.[FN126] Article 2324 preserves the defendants' rights, and Article 1804 provides the formula by which they are calculated.[FN127] It states that, "among solitary obligors, each is liable for his virile portion... If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor."[FN128]

Apportionment of fault is not always easy, and may involve a good bit of guesswork. When an injury is severable, the task may be made easier. For example, when one tortfeasor shoots the victim in the arm, and another tortfeasor shoots the victim in the leg, it is simple to divide the injuries and to apportion fault along those same lines.

Prosser and Keeton shed considerable light on the issue of severability of injuries.[FN129] An injury is severable, or capable of apportionment, if the wounds can be considered "separate wrongs,"[FN130] as when two tortfeasor shoot the victim, one in the leg and one in the arm.[FN131] On the other hand, any single injury, such as death or a broken leg, is considered unseverable, because no ingenuity can suggest anything more than a purely arbitrary apportionment of such harm. Where two or more causes combine to produce such a single result, incapable of any reasonable division, each may be a substantial factor in bringing about the loss, and if so, each is charged with all of it.[FN132]

However, a seemingly unseverable injury, such as a polluted stream, nevertheless may be severable.[FN133] "If two defendants, independently operating the same plant, pollute a stream over successive periods, it is clear that each has caused separate damage, limited in time, and that neither has any responsibility for the loss caused by the other."[FN134]

The fact that an injury is not severable, however, does not mean that apportionment of fault cannot be achieved. The task is more difficult, but to protect the rights of the defendants, it must be accomplished.[FN135] Fault for any injury, severable or not, must be apportioned, and damages apportioned between the defendants accordingly.[FN136] In Hayes v. Kelly, a case of mistaken identity, the plaintiff was falsely arrested and imprisoned for receipt of stolen goods.[FN137] The trial court set damages at $55,000 and apportioned fault between the three defendants as 33%, 33%, and 34%.[FN138] Regarding the apportionment of fault, the appellate court deferred to the trial court's finding, stating that "assessment of fault is largely a factual determination."[FN139] With respect to the severability of injury/apportionment of damages distinction, the injury caused by the false imprisonment was clearly "incapable of any reasonable or practical division,"[FN140] and specific aspects of it could not be traced back to any specific delictual origin. Therefore it was not severable. Nevertheless, were it not for the imposition of solitary liability, the appellate court implicitly would have apportioned the damages with respect to the individual defendants' virile portion and held each defendant liable only for that portion of the damages which his negligence constructively "caused."[FN141] The principle is that fault can and must be apportioned for unseverable injuries.[FN142] Each defendant is deemed to have caused that portion of damages which matches his percentage of fault, or his virile portion.[FN143]

V. Virgin Islands, Indiana, and Texas Approaches to Recovery of Multiple Damage Caps

Turner was a case of first impression before the Louisiana Supreme Court.[FN144] Though the issue was foreshadowed in Jones v. St. Francis Cabrini Hospital[FN145] and Stuka v. Fleming,[FN146] the supreme court had yet to address the possibility of multiple caps for multiple injuries or defendants.[FN147] Thus the only Louisiana guide to the issue is the seminal Stuka analysis, tested for the first time in Turner.[FN148]

Other jurisdictions, however, have addressed the issue repeatedly and formulated tests for the recovery of multiple damage caps.[FN149] There are essentially two camps in the field of multiple caps, one focusing on the injuries and the other on the defendants. The Virgin Islands, which awards one cap per occurrence,[FN150] and Indiana, which awards one cap per injury,[FN151] comprise the injury-oriented camp. Texas sits alone in the defendant-oriented camp, awarding one cap per defendant, regardless of the number of injuries.[FN152] This formulation is perhaps the most plaintiff- friendly of the group, at least where multiple defendants are involved, as in Turner.

Louisiana is difficult to place in either of the two camps, because its analysis seems to share characteristics of both. The multifactor approach created by Justice Dennis in Stuka v. Fleming suggests as salient "whether the defendants engaged in concerted action, whether the damages are severable, or whether the damages may be apportioned between the tortfeasor."[FN153] (Note that Justice Dennis did not intend for this list to be exclusive--he merely suggested these as relevant factors.)[FN154]

With respect to Justice Dennis's use of the plural "defendants" and "tortfeasor," the Stuka analysis may be a hybrid of the two camps discussed above. Like the injury-oriented camp, it clearly requires multiple injuries. In light of Dennis's language, it also may require, like the defendant-oriented camp, multiple defendants. If so, the Louisiana approach is the toughest of the lot from the plaintiff's perspective, for to recover multiple caps requires satisfying not one but two tests--that there were multiple injuries and that multiple defendants caused them.

On the other hand, Justice Dennis's use of the plural may stem only from the facts at hand in Stuka, a case that involved multiple defendants,[FN155] rather than from an attempt to drag the requirement of multiple defendants into the melee. If such was the case, one could surmise that multiple defendants are not required for multiple caps.

A. The Virgin Islands Approach

1. Per-Occurrence Analysis

As stated, the Virgin Islands applies its statutory cap on a per occurrence basis.[FN156] The statute, which has been interpreted to allow multiple recoveries of the cap,[FN157] states:
(a) The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($250,000) per occurrence.

(c) The total amount awarded for non-economic damages for any injury to a patient as a result of a single occurrence in an action under this subchapter may not exceed seventy-five thousand dollars ($75,000).[FN158]

Thus, the critical inquiry in the Virgin Islands is the number of occurrences. There are two methods of determining the number of occurrences: causation-oriented[FN159] and effects-oriented.[FN160] A causation- oriented approach looks to the factual predicate(s) of the injuries to determine the number of occurrences. Where one unified action causes all injuries, there is one occurrence regardless of how many injuries attain.[FN161]

Alternatively, an effects-oriented approach looks at the injuries in question from the perspective of the victim. Regardless of what event(s), be they one or many, caused the injuries, each injury is a separate, compensable occurrence.[FN162]

Courts in the Virgin Islands use the causation approach,[FN163] as do most other jurisdictions.[FN164] However, the United States Court of Appeals for the Fifth Circuit applies both the causation and effects theories.[FN165] Likewise, Louisiana courts are split on their approach to number of occurrences.[FN166]

In Wiltshire v. Government of the Virgin Islands, the United States Third Circuit held that the Malpractice Act's cap "applied anew with each negligent event," and allowed a recovery of three times the cap because there were three occurrences with at least three injuries.[FN167] That it was impossible to trace each injury back to its specific "delictual origin" was not an impediment to a multiple recovery.[FN168]

In Wiltshire, the plaintiff's infant daughter was injured by three separate acts of malpractice--the unnecessarily protracted use of an umbilical catheter, a negligently performed cardiopulmonary resuscitation, and the improper placement of a feeding line in her scalp.[FN169] Consequently, the child, at the age of five, could not walk, was incontinent, could hardly speak, was possibly hearing impaired, suffered from spastic quadriparesis and a seizure disorder, and had a permanent scar on her forehead.[FN170] Under the causation theory,[FN171] the appellate court held that each separate act of malpractice constituted a separate occurrence for purposes of the Act's cap, and the plaintiffs could therefore recover up to $750,000.[FN172] The court neither stated nor implied that the mere fact that most of the victim's injuries could not be correlated with any specific act of malpractice was a bar to multiple recovery.

2. Application of Virgin Islands Approach to Factual Scenario of Turner

Under the Louisiana Act, the Virgin Islands' per-occurrence analysis would yield a multiple recovery to Turner. The two essential variables under the per-occurrence approach are the number of injuries and their factual predicate(s). Turner suffered two injuries--a radical mastectomy and a 60% loss of chance of recovery. The factual predicates were the independent failure of her two doctors to detect the cancer. Though the causes of her injuries were identical, they cannot be seen as one unified action, the hallmark of a single occurrence under the causation approach, because they were committed by two doctors acting independently.[FN173] It would not matter, under the rationale of Wiltshire, that neither of Turner's injuries could be associated directly with either doctor's malpractice.

However, in Turner, had Drs. Massiah and Ward been in practice together, or if one had referred Turner to the other, her injuries would have been caused by one unified action. Therefore, though she suffered two injuries, there would be only one compensable occurrence allowing only a single recovery of the cap.

B. The Indiana Approach

1. Per-Injury Analysis

Indiana courts interpret that state's statute to allow one recovery up to the cap for each injury. However, because of the courts' crabbed approach to what constitutes an injury, no plaintiff has recovered a multiple cap.[FN174] The statute reads:
(a) The total amount recoverable for an injury or death of a patient may not exceed five hundred thousand dollars... except that, as to an act of malpractice that occurs on or after January 1, 1990, the total amount recovered for an injury or death may not exceed seven hundred fifty thousand dollars...

(b) A health care provider qualified under this article is not liable for an amount in excess of one hundred thousand dollars... for an occurrence of malpractice.[FN175]

Though the statute speaks of a cap that applies to each injury, Indiana courts have not given it a literal, let alone liberal, reading.[FN176] In St. Anthony Medical Center, Inc. v. Smith the decedent was subjected to malpractice which caused a stroke and subsequently to malpractice by a different health care provider that killed him.[FN177] An Indiana appellate court held that there was only one injury, and only one recovery of the statutory cap was permitted.[FN178]

In St. Anthony, the court determined that the first act of malpractice occurred when, prior to prostate surgery, the decedent was left unattended and in an unstable condition for two-and-one-half hours,[FN179] during which time he suffered a stroke. The second act of malpractice occurred when, nine days later, a nurse administered to the decedent three times his prescribed dosage of Heparin.[FN180] The decedent died fifteen days after that, a total of twenty-four days after the negligently-induced stroke.[FN181] The jury awarded damages at just under twice the statutory cap, but the trial court reduced the award to the statutory cap.[FN182] Though the plaintiff argued on appeal that two caps should apply because there were two distinct acts of malpractice and two distinct injuries, namely a stroke and death, the court affirmed the judgment, stating that "[the decedent] suffered a single injury, a stroke, which led to his death."[FN183]

2. Application of Indiana Approach to Factual Scenario of Turner

The confused logic of St. Anthony might appear to be a bar to a multiple recovery in our factual scenario. The decedent in that case did not die from the first act of malpractice, but from the second, and therefore the plaintiffs should have recovered one cap for the stroke and a second cap for the death. However, because the decedent ultimately died, the court gave effect to the "per death" part of the statute, even though it allows one cap for each "injury or death of a patient."[FN184]

St. Anthony, however, is distinguishable from Turner on its facts since Turner did not die as a result of the malpractice. Therefore, an Indiana court applying the Louisiana Act would permit a multiple recovery, because, once the "or death" aspect is removed, the court would be constrained to acknowledge the multiple injuries and award one recovery for each.

Of course, the court could refuse to acknowledge multiple injuries and characterize the injury instead as breast cancer, as the Louisiana Supreme Court did in Turner, with the mastectomy and loss of chance being symptoms thereof.[FN185] For reasons discussed in Part VI of this Comment, however, this would be legally incorrect.

C. The Texas Approach

1. Per-Defendant Analysis

Texas allows a recovery of one cap per defendant by way of "the multiplier effect." The amount of general damages available in a malpractice suit is calculated by multiplying the statutory cap by the number of defendants.[FN186] The statute states:
(a) In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.

(b) Subsection (a) of this section does not apply to the amount of damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury.[FN187]

In Rose v. Doctors Hospital the Supreme Court of Texas held that "the amount of damages under § 11.02 is to be calculated on a 'per defendant' basis."[FN188] The method for calculating damages under the Texas Act is to multiply the statutory limitation by the number of defendants.[FN189] The court noted that "plaintiffs who recover against more than one defendant may therefore obtain a judgment in excess of the cap, so long as the combined statutory liability of all defendants is not exceeded."[FN190]

2. Application of Texas Approach to Factual Scenario of Turner

The Texas multiplier approach is quite simple to apply and yields a multiple recovery in many cases, but perhaps is too liberal in its awards, thereby defeating the purposes of having a damage cap.[FN191] The total possible damages allowable in a malpractice case are arrived at by multiplying the statutory cap by the number of defendants. The statutory cap in Louisiana is $500,000, and there were two defendants in Turner. Thus, in our factual scenario, Turner could recover $1,000,000.

The Texas multiplier approach also would restore the $100,000 that was eliminated from Turner's damages by the lower Turner courts. Recall that this occurred because Massiah's virile share ($600,000) exceeded his individual cap of $500,000 by $100,000. Though the district and intermediate appellate courts in Turner would have allowed a multiple recovery, they treated the damages caused by each doctor separately for purposes of the cap. Thus, when Massiah's damages exceeded the cap, the excess damages were trimmed away. However, under Texas law, that excess would be accounted for by the fact that Ward caused $100,000 less than the statutory cap. Damages caused by one doctor in excess of the per-defendant statutory cap are still recoverable so long as the total damages do not exceed the multiplier product (i.e., number of defendants times statutory cap).[FN192]

In certain extreme cases this would result in a far more equitable recovery than even the plaintiff-friendly lower Louisiana courts would allow. For example, assume two doctors commit malpractice on a patient and fault is apportioned at 95% and 5%, with damages totaling $1,000,000. The statutory cap is $500,000, so again the total possible damages is $1,000,000. Even though the damages caused by one of the doctors ($950,000) exceed the statutory cap for his damages by $450,000, that excess is still recovered because the damages caused by the other doctor ($50,000) were $450,000 less than they could have been.

In the above example, lower Louisiana courts would limit the plaintiffs recovery to $550,000, $50,000 more than the statutory cap, but $450,000 less than actual damages. That result would vary significantly from a Texas court's result, because Texas compares the total damages found by the fact finder to the aggregate allowable damages. Though plaintiff-friendly, the lower Turner courts would not reach this equitable result. This is because they would not use an aggregation method (i.e., the "multiplier" concept) but a per capita method, with the result being an artificial severance of actual damages that exceeded any individual defendant's personal cap.

VI. Proposed Approaches to Multiple Damage Cap Recoveries in Louisiana

The majority opinion misconstrues the legal causation/apportionment of fault analysis. While it admonishes the appellate court that "the percentage of fault and legal cause are two separate inquiries,"[FN193] it either fails to heed its own warning or, if it does heed it, makes a very poor attempt at treating the two issues separately.[FN194] The central source of confusion, and of the inconsistencies which led to Kimball's and Lemmon's confusion over apportionment of fault, is the statement that each defendant is liable for all of the damages not because of solitary liability but because each was "the legal cause of all of the victim's harm."[FN195] As the majority correctly stated, legal causation and percentage of fault are separate inquiries.[FN196]

Legal causation is determined by the duty-risk analysis.[FN197] A finding that a duty-risk relationship exists between the plaintiff and the defendant says no more than that the defendant, or in this case defendants, will be liable to the plaintiff. Where, as here, there are multiple defendants, to say that each is a legal cause of injuries is to say only that they are solidarily liable to the plaintiff.[FN198] As Article 2324(B) states, the rights of the defendants as amongst themselves--contribution and indemnity--are preserved, and for that reason fault must be quantified subsequent to the determination that each is a legal cause of the injuries.[FN199] This principle is addressed more specifically in Article 1804, which states that "~among solitary obligors, each is liable for his virile portion... If the obligation arises from an offense or quasi- offense, a virile portion is proportionate to the fault of each obligor."[FN200]

Analyzing the court's confusing statement in light of these provisions, one sees that the proper way to discuss legal causation between multiple defendants is to say that each was a legal cause, rather than the legal cause.[FN201] When one speaks of the legal cause, one has already implicitly, and improperly, apportioned fault because the question that follows determination of legal causation has already been answered-- "Once we've determined that the defendant was a legal cause, how much of the blame was his?" The answer is that the defendant will be liable for all of the damages because that is his "virile portion."[FN202] That is, since he is the legal cause, there can be no other legal cause, and therefore the portion of his fault must be 100%. Under this reasoning, the court's statement leads to utter confusion as to whether fault can or cannot be apportioned under these facts. If the court determines that fault cannot be apportioned, then it has erred, because even though contribution and indemnity are not at issue in this case[FN203] they may be in the next case. As such, the Louisiana Supreme Court has failed to consider the Turner decision's effect on stare decisis. If fault cannot be apportioned in this case, how will the court protect the rights of the defendants[FN204] in similar cases if those rights are at issue? However, if the court thinks fault can be apportioned and has made an apportionment of 100% for each defendant, then the plaintiff must be allowed to recover twice for her injuries since there must, by definition, have been two injuries.

The Louisiana Supreme Court also erred in its characterization of the plaintiffs injuries. Mrs. Turner's injury was not Stage 2 cancer. Rather, her injuries--plural--were loss of chance and loss of the breast. In Weber v. State, the disease a worker contracted on his job was considered a separate and distinct injury from its accompanying loss of chance of recovery.[FN205] The facts in Turner militate more convincingly for a finding of separate injuries. Not only did the jury award damages for separate injuries-- loss of chance and loss of the breast--but the injuries are clearly distinguishable. The loss of chance is the primary injury, and should consist of loss of future earnings, of quality of life, etc. The loss of the breast is the secondary injury, and should consist of pain and suffering, mental anguish, disfigurement, etc. Indeed, these were the grounds on which the jury awarded Mrs. Turner's damages.[FN206] Stage 2 breast cancer is not an injury, but a composite injury. It consists of loss of chance and loss of the breast. The fact that the court cannot say that one doctor caused one of the injuries and the other doctor the other, or alternatively, how much of each injury each doctor caused, does not mean that the injury is not severable. It is a severable injury which becomes unseverable only because we don't know when the cancer began.

But the injury is severable on another level. One can theoretically divide the loss of chance suffered by the plaintiff across the three years and fourteen office visits. Prosser and Keeton lend support to this proposition.[FN207] Just as a polluted stream is a severable injury where two polluters successively contribute to the damage, where two doctors successively fail to diagnose breast cancer, the accumulating loss of chance is severable.[FN208] Theoretically, each doctor has caused only the loss of chance which occurred between the time Turner visited him and the next time she visited a doctor. The doctors, in fact, are solidarily liable, but the principle is the same--that the seemingly unseverable injury is nonetheless capable of severance. The fact that specific aspects of the cancer could not be traced back to and attributed separately to either doctor does not mean that there weren't multiple injuries. If apportionment of the damages to each of the doctors is necessary, then the court may consider a constructive apportionment as a means of effectuating an equitable result.

In the alternative, Louisiana courts may use the "occurrences" theory applied in the Virgin Islands to determine how many compensable injuries the plaintiff suffered.[FN209] Under the causation theory, there would be two compensable injuries since Turner's injuries were caused by two wholly unrelated acts of malpractice. Under the effects theory, she would recover multiple caps because the effects were multiple injuries.

By holding that multiple caps are not available to a plaintiff who suffers a single indivisible injury, and then improperly characterizing what constitutes an indivisible injury, the court has either misread the Act or misapplied it. When determining how many caps should apply, a Louisiana court must address the policies behind both limitations on damages and unlimited damages.[FN210] The court must strike an equitable balance between effectuating the legislature's intent, i.e., increasing the availability of affordable health care, with the policies behind unlimited tort recovery, i.e., full compensation for all injuries, full liability for tortfeasor, and equitable treatment of victims without regard to by whom they were injured.[FN211] The Louisiana Supreme Court failed to equitably balance these policies in Turner. The plaintiff clearly suffered multiple injuries and was damaged by more than $500,000, but the court ignored compensation policies in favor of effectuating the legislature's policies.

As an alternative to the majority's construction of the Act, the court may look to construction of the Texas Act, which has been held to apply on a "per defendant" basis.[FN212] This would also result in recovery of multiple caps because of the malfeasance of two doctors.

Whichever construction the court applies in the future, the door has not been closed on recoveries in excess of the cap. Clearly multiple injuries are required. However, how distinct those injuries must be, and whether the court will fully embrace the Stuka factors, is yet to be seen. In light of the several states' treatment of medical malpractice damage caps, Louisiana's treatment is an endangered species. As it stands, Louisiana and Indiana are the last two states that staunchly enforce damage caps. The Louisiana Supreme Court's language in Turner indicates that it is willing to permit multiple caps as long as the plaintiff suffers sufficiently distinct injuries. Since the near-total abolition of solitary liability, however, the supreme court has lost a significant crutch on which it rested its decision in Turner to deny the plaintiff recovery of multiple caps. Medical malpractice plaintiffs will now recover the damages they should under law and equity, because, without solitary liability, the damage cap can no longer be applied as broadly, and erroneously, as it was in Turner.


a

B.S. 1994, University of Illinois at Urbana-Champaign; J.D. 1997, Tulane Law School. I would like to thank my mother, Mary-Bernice J. Hager, for her encouragement and support throughout my law school career. Without her, this Comment would never have been possible.

1

See Patrick Kehoe, Comment, Medical Malpractice: A Sojourn Through the Jurisprudence Addressing Limitation of Liability, 30 Loy. L. Rev. 119, 119- 20 (1984).

2

See id. at 120 nn.9 & 12.

3

The Indiana statute states:
(a) The total amount recoverable for an injury or death of a patient may not exceed five hundred thousand dollars... except that, as to an act of malpractice that occurs on or after January 1, 1990, the total amount recovered for an injury or death may not exceed seven hundred fifty thousand dollars...
(b) A health care provider qualified under this article is not liable for an amount in excess of one hundred thousand dollars... for an occurrence of malpractice.
Medical Malpractice Act, Ind. Code Ann. § 27-12-14-3(a) & (b) (Michie 1994).

4

La. Rev. Stat. Ann. § 40: 1299-42(B)(1) (West 1992).

5

Aside from this footnote, this Comment will not address the question of the constitutionality of damage caps for medical malpractice. However, the author points out the Louisiana Fifth Circuit Court of Appeals' observation that the varying treatment accorded victims (depending on whether they were injured by a state or private health care provider) may violate the Equal Protection clauses of either the Louisiana or United States Constitution. See Turner v. Massiah, 641 So. 2d 610, 620 (La. Ct. App. 5th Cir. 1994), aff'd in part, rev'd in part, 656 So. 2d 636 (La. 1995). This is but one of a host of arguments that medical malpractice damage caps are unconstitutional. Such challenges have proven successful in other jurisdictions, but not in Louisiana.

Some state statutes have been stricken under the "open courts" doctrine because plaintiffs must go through medical review panels, rather than a jury, to obtain recovery. See Lucas v. United States, 757 S.W.2d 687, 690-92 (Tex. 1988) (holding that, as applied to common-law medical malpractice claims, Texas's statutory cap on medical malpractice damages violated that state's constitution). Other courts have stricken them because, under the rigors of state or federal constitutional protection, the legislature has been unable to meet the burden of justifying the differential treatment accorded victims based on whether or not the tortfeasor was a health care provider. See Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 165-71 (Ala. 1991). The argument has also been made successfully that caps violate state constitution equal protection clauses because plaintiffs are treated differently based on the extent of their injuries--those with minor injuries recover full compensation for their damages when the award falls below the cap, but those with catastrophic injuries receive far less than their actual damages due to imposition of the cap. See Carson v. Maurer, 424 A.2d 825, 836-37 (N.H. 1980) (per curiam).

Such arguments have proven fruitless in Louisiana. In Butler v. Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 (La. 1992), the Louisiana Supreme Court held that the $500,000 limit on general damages did not violate the Louisiana Constitution's Equal Protection Clause because the Act's limitations were reasonably related to furthering the general state interest of compensating victims; the court found a quid pro quo whereby tort victims traded a full recovery for a guaranteed recovery. See id. at 521; see also Owen v. United States, 935 F.2d 734, 738-39 (5th Cir. 1991) (interpreting Louisiana law and holding that the Act does not violate the state's guarantee of equal protection); Williams v. Kushner, 549 So. 2d 294, 296 (La. 1989) (holding that since the Patients' Compensation Fund (PCF) is basically a state-run insurance company, it is free to limit its liability to any extent it sees fit, and claimants have no constitutional ground for attacking the limitation); LaMark v. NME Hosp., Inc., 542 So. 2d 753, 754- 56 (La. Ct. App. 4th Cir. 1989) (holding that the Act does not violate the state equal protection clause). Considering the lack of support the Louisiana Supreme Court has shown for constitutional attacks on the Act, it seems likely that when the Court does address the issue raised by the appellate court in Turner (i.e., whether the difference in treatment based on who injured the victim, private or public health care provider, violates the state's guarantee of equal protection, discussed infra) it will find sufficient justification for the disparity in the Act's public policy of providing greater availability of health care. For a thorough analysis of the several states' case law on the constitutionality of medical malpractice damage caps, see Kehoe, supra note 1. See also Williams, 549 So. 2d at 299-301. For a broad annotation of several states' varying treatments of medical malpractice damage caps, including constitutional validity and construction and application, see Carol A. Crocca, Annotation, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 A.L.R.5th 245 (1995).

6

See, e.g., Wiltshire v. Government of V.I., 893 F.2d 629, 634 (3d Cir. 1990) (holding that "the Malpractice Act's liability provisions are applied anew with each negligent event"); Rose v. Doctors Hosp., 801 S.W.2d 841, 847 (Tex. 1990) ("Damages cap amounts should be calculated on a 'per defendant' basis because the language of § 11.02(a) clearly applies to the recovery against the individual defendant, not the award to the individual plaintiff.").

7

656 So. 2d 636 (La. 1995).

8

See Turner, 641 So. 2d at 612-14.

9

According to international standards, Stage 2 breast cancer involves a tumor that can be greater than 2.0 cm in diameter and which has metastasized to the lymph nodes in the armpit. See Interview with John Howard, M.D., in New Orleans, La. (Feb. 20, 1997). Once a tumor reaches the lymph nodes, chance of survival drops radically because the lymph nodes drain into the cardiovascular system. See id. Once in the bloodstream, cancer cells can reach the lungs, brain, ovaries, liver, and bones, causing additional tumors in those sites. See id.

10

This is the correct spelling of Dr. Massiah's name. The spelling in the reported case name is incorrect. See Turner, 656 So. 2d at 637 n. 1.

11

See id. at 637-40.

12

See id. at 637, 639-40.

13

See id. at 637. Because of the current spate of product liability litigation concerning breast implants, the author notes that the particular type used were "silicone-saline gel implants." Turner, 641 So. 2d at 613.

14

See Turner, 656 So. 2d at 637.

15

See Turner, 641 So. 2d at 612-13.

16

See Turner, 656 So. 2d at 637.

17

Id.

18

See id.

19

See Turner, 641 So. 2d at 614.

20

See id.

21

See Turner, 656 So. 2d at 640.

22

See id. at 637-38.

23

See id. at 638.

24

See id. Turner's husband was also awarded $8,000 for loss of consortium. See id. However, his damages will be ignored to make calculations and discussion simpler. Consequently, the damage figures herein will be slightly less than those discussed by the court.
Also to be ignored are the damages awarded to Mrs. Turner for past medical bills. Economic (special) damages are not included in the cap on recovery for non-economic (general) damages imposed by the Medical Malpractice Act, La. Rev. Stat. Ann. § 40:1299.42 (West 1992).

25

See Turner, 641 So. 2d at 612.

26

See Turner, 656 So. 2d at 641. An interesting assortment of amicus briefs were filed by the Louisiana Hospital Association, Louisiana Dental Association, Medical Protective Company, HCA Highland Hospital, Inc., Louisiana Medical Mutual Insurance Company, Louisiana Psychiatric Company, DePaul Hospital, Galen-Med, Inc., Lakeland Medical Center, HDC Health Service of Louisiana, North Monroe Hospital, Central Louisiana Healthcare System, Lake Area Medical Center, Louisiana Patient's Compensation Fund, Ville Platte Medical Center, and Cypress Hospital. See id. at 637.

27

See Report of Committee on Medical Professional Liability, 102 A.B.A. Ann. Rep. 786, 849 (1977) [hereinafter ABA Report].

28

See Id.

29

Id.

30

The court in LaMark v. NME Hospitals, Inc., 542 So. 2d 753 (La. Ct. App. 4th Cir. 1989), stated that "the purpose of the legislation is to ensure the availability and affordability of medical care for the citizens of Louisiana." Id. at 755-56. Legislative history for the Act, however, is unavailable.

31

ABA Report, supra note 27, at 849.

32

Williams v. St. Paul Ins. Cos., 419 So. 2d 1302, 1304 (La. Ct. App. 4th Cir. 1982); see also Rodriguez v. Louisiana Med. Mut. Ins. Co., 618 So. 2d 390, 394 (La. 1993) (citing Monteville v. Terrebonne Parish Consol. Gov't, 567 So. 2d 1097, 1100-01 (La. 1990)).

33

See Rodriguez, 618 So. 2d at 394; Williams, 419 So. 2d at 1304.

34

See Rodriguez, 618 So. 2d at 394; Williams, 419 So. 2d at 1304.

35

La. Rev. Stat. Ann. § 40: 1299.42(B)(l) (West 1992).

36

See Turner v. Massiah, 656 So. 2d 636, 638 (La. 1995).

37

See id. at 638-39.

38

See id. Of the total general damages, the Act specifies that the liable health care provider pays the first $100,000, and the PCF pays any residual judgment, up to an additional $400,000 for "each claim." See La. Rev. Stat. Ann. § 40: 1299.42(B)(2)-(3)(a).

39

See Turner, 656 So. 2d at 638.

40

See id. Because Dr. Ward had previously paid his $100,000, and because the PCF paid the additional $300,000 for damages caused by Ward immediately after the judgment was entered, the Turners executed a partial satisfaction of judgment, releasing Ward and the PCF so far as his damages were concerned. See id.

41

561 So. 2d 1371 (La. 1990).

42

See id. at 1375 (Dennis, J., concurring in part, dissenting in part).

43

Turner v. Massiah, 641 So. 2d 610, 619-20 (La. Ct. App. 5th Cir. 1994) (quoting Stuka, 561 So. 2d at 1375 (Dennis, J., concurring in part, dissenting in part)), aff'd in part, rev'd in part, 656 So. 2d 636 (La. 1995).

44

Turner, 641 So. 2d at 620 (quoting Rodriguez v. Louisiana Med. Mut. Ins. Co., 618 So. 2d 390, 394 (La. 1993)). Specifically, the court found that the rights derogated were those of a tort victim to receive full compensation for injuries sustained, both special and general, and that the Act should be strictly construed so that the beneficiaries of the limitation (qualified health care providers) receive no more benefit than the legislature intended in passing the Act. See id.

45

See id.

46

See id.

47

See id.

48

See id.; La. Rev. Stat. Ann. § 40: 1299.42(B)(1) (West 1992).

49

See Turner, 641 So. 2d at 620; La. Rev. Stat. Ann. § 40:1299.39(F).

50

La. Rev. Stat. Ann. § 40:1299.39(F) (emphasis added).

51

See id. § 40: 1299.42(B)(1) (emphasis added).

52

See Turner, 641 So. 2d at 620 (citing Williams v. Kushner, 549 So. 2d 294 (La. 1989)).

53

See id.

54

The majority opinion was written by Justice Yelverton, sitting pro tempore in place of Justice Dennis. See Turner v. Massiah, 656 So. 2d 636, 637 n.* (La. 1995). Justice Yelverton is from the Louisiana Third Circuit Court of Appeal. See id.

55

See Stuka v. Fleming, 561 So. 2d 1371, 1375 (La. 1990) (Dennis, J., concurring in part, dissenting in part).

56

La. Rev. Stat. Ann. 40:1299.42(B).

57

See Turner, 656 So. 2d at 639 (citing Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331, 336 (La. 1994)).

58

See id.

59

See id.

60

See id. The author feels that logically there were two injuries-- the mastectomy and loss of chance. This is supported by the recent Louisiana Supreme Court case of Weber v. State, 635 So. 2d 188, 192 (La. 1994). See infra notes 205-208 and accompanying text.

61

Turner, 656 So. 2d at 639 (citing Lambert v. U.S. Fidelity & Guar. Co., 629 So. 2d 328, 329 (La. 1993)).

62

See id. at 640 (citing Stuka v. Fleming. 561 So. 2d 1371, 1375 (La. 1990) (Dennis, J., concurring in part, dIssenting In part)).

63

Id. at 640 (citing La. Rev. Stat. Ann. § 40:1299.42(B)(1), (B)(3)(b) (West 1992); Descant v. Administrators of Tulane Educ. Fund, 639 So. 2d 246, 249 (La. 1994); Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So. 2d 517, 519 (La. 1992)).

64

Id. at 639 (citing La. Code Civ. Proc. Ann. art. 1812(C) (West 1990)).

65

See id.

66

See id.

67

Id.

68

Id.

69

See id.

70

See Turner v. Massiah, 641 So. 2d 610, 614 (La. Ct. App. 5th Cir. 1994), aff'd in part, rev'd in part, 656 So. 2d 636 (La. 1995). Because of the wording of the Act, it is critical for a victim to suffer multiple injuries for them to recover multiple damage caps. Stage 2 breast cancer arguably can be broken down into separate component injuries, including radical mastectomy and loss of chance. See infra Part VI.A.

71

See Turner, 656 So. 2d at 640.

72

Stuka v. Fleming, 561 So. 2d 1371, 1375 (La. 1990). It is important to note that the supreme court disagreed with the appellate court's determination that this was such a case, not with either the use of the Stuka factors or the possibility of some future plaintiff recovering multiple caps. See Turner, 656 So. 2d at 640.

73

This factor is the only one the appellate court did look at. See Turner, 641 So. 2d at 619-20.

74

See Turner, 656 So. 2d at 640.

75

Id.

76

See id.

77

Id.

78

See id. "No ingenuity can suggest anything more than a purely arbitrary apportionment of such harm." W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 52, at 347 (5th ed. 1984).

79

See Turner, 656 So. 2d at 640.

80

See Turner, 656 So. 2d at 641-42 (Kimball, J., dissenting).

81

See id. at 641-43 (Kimball, J., dissenting).

82

La. Rev. Stat. Ann. § 40:1299.42(B)(1) (West 1992) (emphasis added).

83

See Turner, 656 So. 2d at 642-43 (Kimball, J., dissenting).

84

Id. at 642 (quoting Webster's New Universal Unabridged Dictionary (1992)).

85

Id. at 642.

86

See id.

87

Id.

88

See id.

89

See id.

90

Id.

91

See, e.g., McKeithen v. S.S. Frosta, 430 F. Supp. 899, 902-05, 1978 AMC 31, 34-42 (E.D. La. 1977) (applying Louisiana law and holding that, where a marine insurance policy provided coverage of $300,000 for "claims arising out of or in consequence of any one occurrence," the $300,000 limit applied to the aggregate of all claims arising out of a collision between a tanker and a ferry, rather than to each individual claim, because one event-- the collision--was the cause of every claim for damages).

92

See, e.g., Aetna Cas. & Sur. Co. v. Medical Protective Co., 575 F. Supp. 901, 903 (N.D. Ill. 1983) (holding that the plaintiff's blindness from continued usage of an eye medication constituted one occurrence, even though the pediatrician refilled the prescription six times, because "there was one diagnosis and one course of treatment prescribed. All prescription refills and all the resulting injuries to Janice Thurston flowed from that single 'occurrence").

93

See, e.g., Anchor Cas. Co. v. McCaleb, 178 F.2d 322, 324-25 (5th Cir. 1949) (holding that an insurance policy that limited liability to $5,000 per accident with an aggregate maximum liability of $25,000 "must be construed from the point of view of the person whose property was injured.... If one cause operates upon several at one time, it cannot be regarded as a single incident, but the injury to each individual is a separate accident").

94

See Turner, 656 So. 2d at 640.

95

See, e.g., Anchor Cas. Co., 178 F.2d at 324-25 (applying effects theory of causation).

96

See Turner, 656 So. 2d at 642 (Kimball, J., dissenting).

97

See id.

98

Id.

99

Id.

100

See id. at 641 (Lemmon, J., concurring). Justice Lemmon concurred in the result and the reasoning except for the portion relating to apportionment of fault, stating that "when there is a single injury caused by two tortfeasor' failure to act and action by either would have prevented the injury, fault must be quantified." Id.

101

See id. at 642 (Kimball, J., dissenting). Kimball's and Lemmon's disagreements with the majority on the issue of apportionment of fault typify the confusion that may result from the inconsistencies in the majority's opinion. At two places in the majority's opinion, Justice Yelverton seems to say that there was no problem with the jury's apportionment of fault. He states that "the fact that the relative culpability of the providers can be assigned a percentage does not mean that in terms of legal cause each provider was not responsible for the whole injury." Id. at 639. This statement indicates that the apportionment of fault was not the source of the trial court's error. The court also states that "the use of apportionment of fault as a mechanism for making an indivisible injury divisible, thereby creating two injuries caused by two providers and justifying the application of two limitations of recovery, was error." Id. at 640. Here again, the apportionment of fault was not problematic, but what the trial court did with it was. These statements indicate that the majority may not have said that fault could not be apportioned between the defendants. Perhaps the real problem Kimball and Lemmon have with the majority's holding on this issue is the utterly confusing statement that "each tortfeasor's liability for all of the... injuries was based on more than the imposition of a solitary obligation...; his liability for all of the victim's damages resulted because he was the legal cause of all of the victim's harm.' Id. at 639-40 (citing Lambert v. U.S. Fidelity & Guar. Co., 629 So. 2d 328, 328-29 (La. 1993)). Apparently, what the majority has done is failed to heed its own warning that legal cause and percentage of fault are two separate inquiries. See id. at 639-40. This problem will be discussed more thoroughly later in this Comment. See infra notes 118-144 and accompanying text.

102

See Turner, 656 So. 2d at 642-43 (Kimball, J., dissenting).

103

Under this approach, Kimball necessarily must be defining Mrs. Turner's injury as Stage 2 cancer, as does the majority. See id. at 639, 640.

104

Cost of future treatment should not be considered when addressing recovery of general damages under the Act because they are specifically excluded from the damage cap by La. Rev. Stat. Ann. § 40: 1299(B)(1) (West 1992).

105

Turner, 656 So. 2d at 643 (Kimball, J., dissenting).

106

See Stuka v. Fleming, 561 So. 2d 1371, 1375 (La. 1990) (Dennis, J., concurring in part, dissenting in part). Note that Justice Dennis did not intend for this to be a comprehensive list of factors which the court should apply in deciding whether multiple caps should apply. See id.

107

See id.

108

See Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331, 336 (La. 1994).

109

The entire duty-risk analysis requires the plaintiff to show that: (1)the defendant's actions were a cause-in-fact of the plaintiff's injury, (2)that the defendant owed the plaintiff a duty which was imposed to protect against the risk involved, (3)that that duty was breached by the defendant, and (4)that there was a resulting injury. See Biggs v. United States, 655 F. Supp. 1093, 1094 (W.D. La. 1987) (applying Louisiana law). However, only issue two is pertinent to Turner. For an excellent example of the complete duty-risk analysis, see Jones v. Robbins, 289 So. 2d 104, 106-08 (La. 1974).

110

See E. Wayne Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L. Rev. 1, 15, 26 (1977); see also Steptoe, 634 So. 2d at 336 (holding that duty-risk is used to determine legal causation in a medical malpractice case).

111

See Thode, supra note 110, at 15, 26.

112

See David W. Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La. L. Rev. 1, 11-12 (1973).

113

Hill v. Lundin & Assocs., Inc., 256 So. 2d 620, 622 (1972).

114

Id. at 623.

115

Thode, supra note 110, at 28 (quoting Leon Green, Duties, Risks, Causation Doctrines, 41 Tex L. Rev. 42, 45 (1962)); see also Robertson, supra note 112, at 12.

116

See Thode, supra note 110, at 27.

117

Specifically, "[Where L is] the likelihood of injury, [B is] the magnitude of the burden of guarding against it and [P is] the consequences of placing that burden upon the defendant Lance v. Senior, 224 N.E.2d 231, 233 (Ill. 1967).

118

See Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331, 336 (La. 1994); see also La. Civ. Code Ann. art. 1804 (West 1987); La. Code Civ. Proc. Ann. art. 1812 (West 1990 & Supp. 1997); La. Civ. Code Ann. art. 2324(B) (West Supp. 1996), amended by Act No. 3, 3 West La. Sess. Law Serv. No. 1, at 3-4 (1996) [hereinafter Act No. 3 (1996)].

This Comment was written prior to the 1996 amendment to Article 2324(B). That amendment, which eliminates solitary liability where joint tortfeasor acted independently of each other (e.g., cases like Turner), will have at least two effects on medical malpractice cases in Louisiana.

First, because the amendment does not apply retroactively, Louisiana courts will still impose a solitary obligation on non-conspiring tortfeasor who were sued prior to the amendment. Thus, joint medical malpractice defendants whose cases were pending at the time of adoption will still be solidarily liable even though their cases are resolved after the amendment.

Second, with respect to the specific issue at hand in this Comment (i.e., whether multiple damage caps are available under Louisiana medical malpractice law), the elimination of solitary liability bolsters the author's position that plaintiffs injured by multiple medical-malpractice defendants should, and are more likely to, recover multiple damage caps. The reason for this is that Louisiana courts will no longer be able to gloss over the divisibility of injury or injuries as the supreme court did in Turner. Since solitary liability is no longer imposed, Louisiana courts are required to find the virile portion of damages for each defendant. See La. Civ. Code Ann. art. 1804 (West 1987); La. Civ. Code Ann. art. 2324(B) (West Supp. 1997). The court in Turner asserted that this could not be done under the facts of that case. See Turner v. Massiah, 656 So. 2d 636, 640 (La. 1995). In so doing, the supreme court relied in part, albeit falsely, on the solitary liability of the defendants. See id. at 639-40. From the imposition of solitary liability, the supreme court posited that each defendant was the legal cause of all of the plaintiff's injury or injuries, and thus the plaintiff's complications arising out of the defendants' medical malpractice were indivisible. See id.

However, had solitary liability been excluded from its Stuka analysis, the supreme court in Turner would have had no choice but to determine the respective defendants' virile shares. Upon doing that, the court then could not have maintained its argument that the injury/ies suffered by Mrs. Turner were indivisible merely because fault could not be apportioned between the defendants--it would have had to apportion fault. Certainly a Louisiana court could not, on the one hand, find a virile portion of damages for each of multiple defendants, as required by Article 1804, yet on the other hand deny the validity of that apportionment for purposes of determining whether the plaintiff could recover multiple damage caps.

119

See La. Civ. Code Ann. art. 2324(B), amended by Act No. 3 (1996).

120

See id.

121

See id.; Steptoe, 634 So. 2d at 336.

122

Steptoe, 634 So. 2d at 336.

123

See La. Code Civ. Proc. Ann. art. 1812(C).

124

See id. art. 1812(C)(1)(a) & (b).

125

Id. art. 1812(C).

126

See La. Civ. Code Ann. art. 1804 (West 1987); id. art. 2324(B) (West Supp. 1996), amended by Act No. 3 (1996).

127

See id. art. 1804; id. art 2324(B).

128

Id. art. 1804 (emphasis added).

129

See Keeton et al., supra note 78, § 52, at 345-55.

130

Id. § 52, at 348.

131

See id.

132

Id. § 52, at 347.

133

See id. § 52, at 352.

134

Id. (footnote omitted). The essential principle is that the fault for the unseverable injury is nevertheless capable of apportionment.

135

See La. Civ. Code Ann. art. 1804; id. art 2324(B).

136

See Hayes v. Kelly, 625 So. 2d 628, 632-34 (La. Ct. App. 3d Cir. 1993); La. Civ. Code Ann. art. 2324(B). The only difference under the pre- 1987 amendment version of Article 2324 (which applies to Turner, see Turner v. Massiah, 656 So. 2d 636, 640 n.3 (La. 1995)), was that a plaintiff could recover the full amount of her damages from any tortfeasor, regardless of their fault. See La. Civ. Code Ann. art. 2324 (West 1979) (current version at La. Civ. Code Ann. art. 2324 (West Supp. 1997)). Fault still had to be apportioned between the defendants, even under the original version of Article 2324, to protect their rights as amongst themselves. See id. art. 1804. Article 1804 became effective January 1, 1985, but the principle was in effect before that in Articles 2104 and 2106, as stated in comment (a) to Article 1804. See id. art. 1804 cmt. (a).

137

See Hayes, 625 So. 2d at 630.

138

See id.

139

Id. at 632.

140

Keeton et al., supra note 78, § 52, at 347, 345-55.

141

See Hayes, 625 So. 2d at 633-34.

142

See La. Civ. Code Ann. art. 1804 (West 1987); id. art. 2324(B), amended by Act No. 3 (1996). As stated, the principle is not new--it was formerly found in Articles 2104 and 2106. See id. art. 1804 cmt. (a).

143

See id. art. 1804.

144

The issue was presented but not answered in Jones v. St. Francis Cabrini Hospital, 652 So. 2d 1331 (La. 1995), where the victim's general damages were below the cap even though she suffered multiple injuries as a result of multiple acts of malpractice by multiple tortfeasor. See id. at 1337 n.9.

145

See id.

146

561 So. 2d 1371, 1375 (La. 1990) (Dennis, J., concurring in part, dissenting in part).

147

Many plaintiffs have sought recovery of general damages in excess of the cap, but none because of multiple acts of malpractice or multiple injuries. The plaintiffs have instead sought damages in excess of the cap by challenging the validity of the cap itself. See Owen v. United States, 935 F.2d 734, 738 (5th Cir. 1991); Williams v. Kushner, 549 So. 2d 294, 295 (La. 1989); LaMark v. NME Hosp., Inc., 542 So. 2d 753, 754-56 (La. Ct. App. 4th Cir. 1989). The court in LaMark seemingly closed the door on the possibility of any plaintiff ever receiving damages in excess of a single application of the cap, no matter what the situation. See LaMark, 542 So. 2d at 756. "[W]e reject appellants' argument that LSA-R.S. 40:1299.42(B) should be interpreted as a limitation on each separate claim for a single act of malpractice, as opposed to a limitation on the total amount recoverable for all malpractice claims for injuries to or death of a patient." Id. However, as will be discussed later, this reading is overly restrictive and leads to "absurd results." See Turner v. Massiah, 656 So. 2d 636, 642 (La. 1995) (Kimball, J., dissenting). Furthermore, Dennis's statement in Stuka, and the majority's receptivity of the Stuka analysis in Turner, indicate that the door on recovery of multiple caps is stuck, but not closed.

148

See Stuka, 561 So. 2d at 1375 (Dennis, J., concurring in part, dissenting in part).

149

These jurisdictions are the Virgin Islands, Indiana, and Texas.

150

See infra notes 156-172 and accompanying text.

151

See infra notes 174-183 and accompanying text.

152

See infra notes 186-190 and accompanying text.

153

561 So. 2d at 1375 (Dennis J., concurring in part, dissenting in part).

154

See id. (Dennis, J., concurring in part, dissenting in part).

155

See id. at 1371.

156

See Wiltshire v. Government of V.1., 893 F.2d 629, 634 (3d Cir. 1990) (holding that the Virgin Islands cap, 27 V.I. Code Ann. tit. 27, § 166b (1988), applies anew with each occurrence); McDonald v. Thomas, Civil No. 88/329, 1990 U.S. Dist. LEXIS 18114, at *2-3 (D.V.I. Aug. 2, 1990) (same). Most of the case law on the issue of single/multiple occurrences derives from insurance contract cases, where liability is limited to a certain amount "per occurrence" and the court must determine the insurer's liability based on how many occurrences there were. Since the medical malpractice scheme in Louisiana operates as a state-run insurance company, see Williams v. Kushner, 549 So. 2d 294, 296 (La. 1989), the analogy is proper. Thus, if the injury or injuries complained of constitute one occurrence, the plaintiff may recover only one cap. Conversely, if the injury or injuries complained of constitute multiple occurrences, the plaintiff may recover multiple caps. For a thorough annotation of the per-occurrence analysis, see Michael P. Sullivan, Annotation, What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer's Liability to a Specified Amount Per Accident or Occurrence, 64 A.L.R.4th 668 (1988).

157

See Wiltshire, 893 F.2d at 634; McDonald, 1990 U.S. Dist. LEXIS 18114, at *6.

158

Health Care Provider Malpractice Act, V.I. Code Ann. tit. 27, § 166b (1988). Note that this cap applies to the total damages recoverable, rather than to only general damages. This may explain the courts' willingness to permit multiple recoveries.

159

See McKeithen v. S.S. Frosta, 430 F. Supp. 899, 902-05, 1978 AMC 31, 34-42 (E.D. La. 1977) (applying Louisiana law and holding that, where a marine insurance policy provided coverage of $300,000 for "claims arising out of or in consequence of any one occurrence," the $300,000 limit applied to the aggregate of all claims arising out of a collision between a tanker and a ferry, rather than to each individual claim, because one event--the collision-- was the cause of every claim for damages); see also Wiltshire, 893 F.2d at 634 (holding that an occurrence is determined by whether it had separate and distinct factual predicates).

160

See Lombard v. Sewerage & Water Bd. of New Orleans, 284 So. 2d 905, 907, 9 15-16 (La. 1973) (holding that, where the vibration and subsidence caused by a canal construction project resulted in damage to the property of 119 individual plaintiffs, an insurance policy limiting liability at $50,000 per occurrence was to be construed from the perspective of the injured parties, i.e., an effects rather than causation perspective).

161

See McKeithen, 430 F. Supp. at 902-05.

162

See Lombard, 284 So. 2d at 9 15-16. In the Turner context, the mastectomy and loss of chance would be the separate, compensable occurrences.

163

See Wiltshire, 893 F.2d at 634; McDonald v. Thomas, Civil No. 88/329, 1990 U.S. Dist. LEXIS 18114, at *2-3 (D.V.1. Aug. 2, 1990).

164

See, e.g., Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61 (3d Cir. 1982) (holding that the injuries to multiple plaintiffs from a six-year string of discriminatory employment practices constituted but one occurrence based on the principle that "as long as the injuries stem from one proximate cause there is a single occurrence"); Aetna Cas. & Sur. Co. v. Medical Protective Co., 575 F. Supp. 901, 903 (N.D. Ill. 1983) (holding that the plaintiff's blindness from continued usage of an eye medication constituted one occurrence, even though the pediatrician refilled the prescription six times, because "there was one diagnosis and one course of treatment prescribed. All prescription refills and all the resulting injuries to Janice Thurston flowed from that single 'occurrence' just as surely as the back-pay awards flowed from the single policy of discrimination in Appalachian Ins. Co.").

165

Compare St. Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689, 691-92 (5th Cir. 1955) (holding that an insurance policy that limited liability to "$5,000.00 each accident" should be construed "from the point of view of the cause rather than the effect"), with Anchor Cas. Co. v. McCaleb, 178 F.2d 322, 324-25 (5th Cir. 1949) (holding that an insurance policy that limited liability to $5,000 per accident with an aggregate maximum liability of $25,000 "must be construed from the point of view of the person whose property was injured... If one cause operates upon several at one time, it cannot be regarded as a single incident, but the injury to each individual is a separate accident"), and Liberty Mut. Ins. Co. v. Rawis, 404 F.2d 880, 880-81 (5th Cir. 1968) (holding that where a driver collided with one car but did not lose control, then collided with another car about 300 feet up the road, there were two accidents or occurrences under either the causation theory of St. Paul- Mercury Indemnity Co. or the effects theory of Anchor Casualty).

166

Compare McKeithen, 430 F. Supp. at 902-05 (applying Louisiana law and using a causation theory), with Lombard, 284 So. 2d at 915-16 (using an effects theory).

167

893 F.2d 629, 634 (3d Cir. 1990). The version of the Act involved in that case was slightly different than the current version, which is the result of several minor amendments in 1993.

168

See id.

169

See id. at 63 1-32.

170

See id. at 631.

171

See id. at 63 1-34. See, e.g., Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61 (3d Cir. 1982) (holding that the injuries to multiple plaintiffs from a six-year string of discriminatory employment practices constituted but one occurrence based on the principle that "~as long as the injuries stem from one proximate cause there is a single occurrence"). Applying the Appalachian rule, the court in McDonald v. Thomas, Civ. No. 88/329, 1990 U.S. Dist. LEXIS 18114 (D.V.I. Aug. 2, 1990), found three separate occurrences stemming from the surgery on and post- operative care of the plaintiff's ankle. See id. at *4-5. The court found that, during the surgery, "the parts were not all put back in an adequate position." Id. at *5. The court also found that the ankle was not supported in an adequate position after the surgery. See id. Lastly, the court found that the plaintiff was "permitted to bear weight on the ankle too soon after the surgery." Id. As a result of these acts of malpractice, the plaintiff suffered a "turned ankle" and "dropped foot." Id. at *6. Although the negligent support of the ankle immediately followed the surgical negligence, the court nonetheless held that each was a separate occurrence, because they "were not the result of 'but one proximate, uninterrupted and continuous cause," and that the plaintiff could therefore recover up to the statutory maximum for the injuries resulting from each act. Id. (quoting Appalachian Ins. Co., 676 F.2d at 61).

172

See Wiltshire, 893 F.2d at 634-36.

173

See id. at 634.

174

See, e.g., Bova v. Roig, 604 N.E.2d 1, 2-3 (Ind. Ct. App. 1992) (holding that the plaintiff is entitled to recover only once); St. Anthony Med. Ctr., Inc. v. Smith, 592 N.E.2d 732, 738-39 (Ind. Ct. App. 1992) (holding that the plaintiff may not recover for two acts of malpractice). In Bova, the plaintiff was blinded in one eye through the multiple acts of malpractice of his eye surgeon. See Bova, 604 N.E.2d at 1-3. The first act of malpractice was the negligent removal of a cataract from the plaintiff's eye. See id. Then, during the postoperative period, the surgeon failed to detect an ulcerating condition in the eye. See id. The combination of the surgeon's acts of malpractice resulted in permanent blindness in the eye. See Id. On appeal, the plaintiff argued that, under subsection (b) of the Act, he was entitled to receive damages up to the $100,000 cap from the surgeon for each of the acts of malpractice. See id. In affirming the judgment of a single cap, the appellate court said "even if we were to assume arguendo that the jury found two separate acts of medical malpractice, the Act's limitations still allow Bova to recover only... $100,000 against Roig... Bova suffered a single injury, blindness in his left eye. Hence he is entitled to recover only once." Id. at 3.

175

Medical Malpractice Act, Ind. Code Ann. § 27-12-14-3(a) & (b) (Michie 1994).

176

See Bova, 604 N.E.2d at 2-3; St. Anthony Med. Ctr., 592 N.E.2d at 738-39.

177

592 N.E.2d at 734-35.

178

See id. at 739.

179

See id. at 734-35.

180

See id.

181

See id.

182

See id. at 739.

183

Id.

184

Ind. Code Ann. § 27-12-14-3(a) (Michie 1994) (emphasis added).

185

See Turner v. Massiah, 656 So. 2d 636, 639 (La. 1995).

186

See Rose v. Doctors Hosp., 801 S.W.2d 841, 847 (Tex. 1990); Wynn v. Cohan, 864 S.W.2d 205, 206-07 (Tex. App. 1993) (addressing the multiplier concept in a comparative negligence context).

187

Medical Liability and Ins. Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i (West Supp. 1997). After Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988), the act is unconstitutional when applied to common-law medical malpractice claims, but Rose, 801 S.W.2d at 842, held that the act is valid when applied to wrongful death actions stemming from medical malpractice.

188

801 S.W.2d 841, 846 (Tex. 1990).

189

See id. at 847.

190

Id.

191

See supra notes 27-31 and accompanying text.

192

Rose, 801 S.W.2d at 846.

193

Turner v. Massiah, 656 So. 2d 636, 639 (La. 1995) (citing La. Code Civ. Proc. Ann. art. 1812(C) (West 1987)).

194

See id. at 639-40.

195

Id. at 639 (citing Lambert v. U.S. Fidelity & Guar. Co., 629 So. 2d 328, 329 (La. 1993)); see also id. at 640 n.3.

196

La. Code Civ. Proc. Ann. art. 1812(C).

197

See Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331, 336 (La. 1994).

198

See La. Civ. Code Ann. art. 2324(B) (West Supp. 1996), amended by Act No. 3 (1996). Again, the amendment to Article 2324(B) eliminates the solitary liability of non-conspiring joint tortfeasor. However, solitary liability is still imposed upon non-conspiring joint tortfeasor who were sued prior to the amendment. See supra note

199

118

200

See id. Actually, the amendment to Article 2324(B) now requires fault to be apportioned, because solitary liability no longer exists for non-conspiring joint tortfeasor. See La. Civ. Code Ann. art. 2324(B) (West Supp. 1997).

201

Id. art. 1804 (West 1987) (emphasis added).

202

Indeed, this is the inevitable result of the amendment to Article 2324(B). See La. Civ. Code Ann. art. 2324(B) (West Supp. 1997); supra note 118.

203

Id.

204

See Turner v. Massiah, 656 So. 2d 636, 639-40 & n.3 (La. 1995).

205

The rights of contribution and indemnity are guaranteed by La. Civ. Code Ann. arts. 1804 & 2324B.

206

635 So. 2d 188, 192 (La. 1994).

207

See Turner v. Massiah, 641 So. 2d 610, 614 (La. Ct. App. 5th Cir. 1994), aff'd in part, rev'd in part, 656 So. 2d 636 (La. 1995).

208

See Keeton et at., supra note 78, § 52, at 352.

209

See id.

210

See Wiltshire v. Government of V.I., 893 F.2d 629, 634 (3d Cir. 1990); McDonald v. Thomas, Civ. No. 88/329, 1990 U.S. Dist. LEXIS 18114, at *2-6 (D.V.I. Aug. 2, 1990).

211

See ABA Report, supra note 27, at 849. See id.

212

See Rose v. Doctors Hosp., 801 S.W.2d 841, 846-47 (Tex. 1990); Wynn v. Cohan, 864 S.W.2d 205, 206-07 (Tex. App. 1993) (addressing the multiplier concept in a comparative negligence context).

END OF DOCUMENT