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McPherson v. Lake Area Medical Center5/24/2000
malpractice caused damages in excess of $100,000.
While it appears that the existence of malpractice was resolved by the settlement, causation of damages exceeding $100,000.00 was still at issue at the trial.
While La.R.S. 40:1299.44(C)(5) provides that liability is established and the supreme court's pronouncement in Graham shapes the extent of that "liability," La.R.S. 40:1299.47(H) clearly provides:
Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by a claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part. (Emphasis added.)
No distinction is made in this seemingly mandatory provision for cases in which a settlement has established the physician's liability for the first $100,000.00 of damages. Therefore, it seems clear that the panel's opinion and the testimony of its members shall be admitted at the urging of either party.
In the face of this clear provision and the requirement that the plaintiffs prove causation in excess of $100,000.00, the plaintiffs contend that this case requires the exclusion of both the opinion and the members' testimony as neither is relevant to causation or damages. I am aware that the facts of this case are unique in that the defendant is an anesthesiologist while two of the panel members were of different specialties. Furthermore, the panel concluded that the defendant did not breach the standard of care. Thus, the panel members' testimony would appear to address standard of care issues and nothing more, as would the panel opinion. This standard and breach are established by the settlement. Nonetheless, the statute clearly requires that both shall be admissible. The legislature has made the policy determination that the parties shall have access to this evidence, a determination that is clear from the wording of the law and one that the parties have a right to rely on. In my opinion, the issue here is not one requiring interpretation of the law, but is one focused on the application of a clear and unambiguous law. Although it may be difficult to see how La.R.S. 40:1299.44(C)(5) and La.R.S. 40:1299.47(H) work together in cases such as the one before us, we must apply the law as written. See La.Civ.Code art. 9.
Neither would I follow the recent case of Bridgers v. Southwest Louisiana Hosp. Ass'n., 99-520 (La.App. 3 Cir. 11/3/99); 746 So.2d 731, writ denied, 99-3402 (La. 2/18/00); _ So.2d _. While it appears, in Bridgers, that a hearing for particularized findings as to the type of evidence available from the panel was never held, it seems that, ultimately, both the panel and the testimony of its members could have been completely excluded, as it was in this case, as the panel in Bridgers found no breach of the standard of care; the same finding as in this case. The absolute exclusion of the opinion and testimony of the panel works against La.R.S. 40:1299.47(H) which provides that both shall be admissible. Although the reasoning in Bridgers is considered and tailored to accommodate the underlying friction between the two statutory provisions, I do not conclude that the full extent of that reasoning should be adopted.
In fine, as the Medical Review Panel opinion and the testimony of its members were improperly excluded due to the requiremen
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