LOUISE ETHERIDGE, ET AL., ETC. v. MEDICAL CENTER HOSPITALS, ET AL.
Record No. 860194
Supreme Court of Virginia
January 13, 1989
Carrico, C.J., Poff,* Compton, Stephenson, Russell, Thomas, and Whiting, JJ.
* Justice Poff participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 1988.
Stanley G. Barr, Jr.; Thomas J. Harlan, Jr. (David J. Pierce; William M. Sexton; Michael F. Bergan; Philip N. Kabler; Kaufman & Canoles, P.C.; Harlan, Knight, Dudley & Pincus, on briefs), for appellees.
Amici Curiae: Commonwealth of Virginia (Mary Sue Terry, Attorney General; Gail Starling Marshall, Deputy Attorney General; James T. Moore, III, Senior Assistant Attorney General; William L. Thurston, Assistant Attorney General; Gregory E. Lucyk, Assistant Attorney General, on brief), for appellees.
Medical Society of Virginia (Allen C. Goolsby, III; Patricia M. Schwarzschild; W. Jeffrey Edwards; Robert Acosta-Lewis; Hunton & Williams, on brief), for appellees.
STEPHENSON, J., delivered the opinion of the Court.
The principal issue in this appeal is whether
I
Louise Etheridge and Larry Dodd, co-committees of the estate of Richie Lee Wilson (Wilson), sued Medical Center Hospitals (the hospital) and Donald Bedell Gordon, executor of the estate of Clarence B. Trower, Jr., deceased (Trower), alleging that the hospital and Trower were liable, jointly and severally, for damages Wilson sustained as a result of their medical malpractice. Evidence at trial revealed that, prior to her injuries, Wilson, a 35-year-old mother of three children, was a normal, healthy woman. On May 6, 1980, however, Wilson underwent surgery at the hospital to restore a deteriorating jaw bone. The surgery consisted of
Wilson‘s injuries are severe and permanent. She is brain damaged with limited memory and intelligence. She is paralyzed on her left side, confined to a wheelchair, and unable to care for herself or her children.
At the time of trial, Wilson had expended more than $300,000 for care and treatment. She will incur expenses for her care the remainder of her life. Her life expectancy is 39.9 years. Wilson, a licensed practical nurse, earned almost $10,000 in 1979, the last full year she worked. She contends that she proved an economic loss “in excess of $1.9 million.”
The jury returned a verdict for $2,750,000 against both defendants. The trial court, applying the recovery limit prescribed in
At all times pertinent to this case,
II
On February 6, 1975, the General Assembly adopted House Joint Resolution No. 174, authorizing a study and report on malpractice insurance premiums for physicians. H. R. Res. 174, Va. Gen. Assem. (1975). The study was conducted by the State Corporation Commission‘s Bureau of Insurance.
Based upon its study, the General Assembly found that the increase in medical malpractice claims was directly affecting the premium cost for, and the availability of, medical malpractice insurance. Without such insurance, health care providers could not be expected to continue providing medical care for the Commonwealth‘s citizens. Because of this threat to medical care services, the General Assembly, in 1976, enacted the Virginia Medical Malpractice Act (the Act). Acts 1976, c. 611.
The need and reasons for the legislation are stated in the Preamble to the Act:
Whereas, the General Assembly has determined that it is becoming increasingly difficult for health care providers of the Commonwealth to obtain medical malpractice insurance with limits at affordable rates in excess of $750,000; and
Whereas, the difficulty, cost and potential unavailability of such insurance has caused health care providers to cease providing services or to retire prematurely and has become a substantial impairment to health care providers entering into practice in the Commonwealth and reduces or will tend to reduce the number of young people interested in or willing to enter health care careers; and
Whereas, these factors constitute a significant problem adversely affecting the public health, safety and welfare which necessitates the imposition of a limitation on the liability of health care providers in tort actions commonly referred to as medical malpractice cases[.]
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after April one, nineteen hundred seventy-seven, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed seven hundred fifty thousand dollars.
III
A
It is firmly established that all actions of the General Assembly are presumed to be constitutional. Riddleberger v. Chesapeake Railway, 229 Va. 213, 215, 327 S.E.2d 663, 664 (1985); Waterman‘s Assoc. v. Seafood, Inc., 227 Va. 101, 110, 314 S.E.2d 159, 164 (1984); Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 832 (1980); Peery v. Board of Funeral Directors, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961); Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952); Ex Parte Settle, 114 Va. 715, 719, 77 S.E. 496, 497 (1913). Therefore, the party assailing the legislation has the burden of proving that it is unconstitutional, Riddleberger, 229 Va. at 215, 327 S.E.2d at 664, and if a reasonable doubt exists as to a statute‘s constitutionality, the doubt must be resolved in favor of its validity, Blue Cross, 221 Va. at 358, 269 S.E.2d at 832. Indeed, because “[a] judgment as to the wisdom and propriety of a statute is within the legislative prerogative,” id., courts will declare legislation invalid only when it is “plainly repugnant to some provision of the state or federal constitution,” id. Thus, Wilson‘s multiple claims of unconstitu
B
One of Wilson‘s primary contentions is that
When the Virginia Constitution first was adopted in 1776, a jury‘s role was defined by three procedures: the “case stated,” the “demurrer to the evidence,” and the “special verdict.” Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 319 (1966) (Henderson). The “case stated” procedure best portrays the time-honored distinction between the roles of a court and a jury in a judicial proceeding.
The “case stated” was a trial device employed to bypass the jury when only undisputed facts remained in a case. When this occurred, the jury‘s role was reduced to a mere formality. Henderson at 305. During a trial that resulted in a “case stated,” the jury remained to resolve factual issues that arose, but the jury was not empowered to give specific legal effect to its decisions. Id. at 305-06. The “case stated” procedure, therefore, demonstrates that, at the time the Constitution was adopted, the jury‘s sole function was to resolve disputed facts.
Without question, the jury‘s fact-finding function extends to the assessment of damages. Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466, 469-70 (1985); O‘Brien v. Snow, 215 Va. 403, 405, 210 S.E.2d 165, 167 (1974). Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Forbes, 130 Va. at 260-61, 108 S.E. at 20. Thereafter, it is the duty of the court to apply the law to the facts. Id. at 265-67, 108 S.E. at 22.
The limitation on medical malpractice recoveries contained in
More importantly, as previously stated, the jury trial guarantee secures no rights other than those that existed at common law. Significantly, the common law never recognized a right to a full recovery in tort. See Phipps, 201 Va. at 452, 111 S.E.2d at 425; see also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88-89 n.32 (1978) (compiling cases). Thus, although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment. For this reason, too, the limited recovery set forth in
In the present case, the jury resolved the disputed facts and assessed the damages. Wilson, therefore, was accorded a jury trial as guaranteed by the Virginia Constitution. Once the jury had determined the facts, the trial court applied the law and reduced the verdict in compliance with the cap prescribed by the
C
Wilson also contends that
Procedural due process guarantees a litigant the right to reasonable notice and a meaningful opportunity to be heard. Parratt v. Taylor, 451 U.S. 527, 540 (1981); Com‘sion v. Hampton Rds. Oyster Co., 109 Va. 565, 585, 64 S.E. 1041, 1048 (1909); Ward Co. v. Henderson White Co., 107 Va. 626, 630, 59 S.E. 476, 478 (1907). The procedural due process guarantee does not create constitutionally-protected interests; the purpose of the guarantee is to provide procedural safeguards against a government‘s arbitrary deprivation of certain interests. Leis v. Flynt, 439 U.S. 438, 441 (1979). See also Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 840-41 (1977).
By comparison, substantive due process tests the reasonableness of a statute vis-a-vis the legislature‘s power to enact the law. Ordinarily, substantive due process is satisfied if the legislation has a “reasonable relation to a proper purpose and [is] neither arbitrary nor discriminatory.” Duke v. County of Pulaski, 219 Va. 428, 437-38, 247 S.E.2d 824, 829 (1978). See also Board of Supervisors v. State Milk Comm., 191 Va. 1, 8-9, 60 S.E.2d 35, 39 (1950), appeal dismissed, 340 U.S. 881 (1950); Finney v. Hawkins, 189 Va. 878, 886, 54 S.E.2d 872, 876 (1949); Stickley v. Givens, 176 Va. 548, 560, 11 S.E.2d 631, 637 (1940). If legislation withstands this so-called “rational basis” test, due process is not violated.
When, on the other hand, legislation affects a “fundamental right,” the constitutionality of the enactment will be judged according to the “strict scrutiny” test, i.e., the law must be necessary to promote a compelling or overriding governmental interest. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 18 (1973). Those interests that have been recognized as “fundamental” include the right to free speech, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); the right to vote, Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618 (1969); the right to fairness in the criminal process, Mayer v. Chicago, 404 U.S. 189 (1971); the right to marry, Zablocki v. Redhail, 434 U.S. 374 (1978); and the right to fairness in procedures concerning governmental deprivation of life, liberty, or property, Goldberg v. Kelly, 397 U.S. 254 (1970).
Occasionally employed in connection with claims of due process violations is the “irrebuttable presumption” line of analysis. Generally, if a government presumes facts that leave no room for rebuttal and uses that presumption to deny a person a constitutional right, due process will be violated. See Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). If the right or status affected by the irrebuttable presumption is constitutionally protected, the presumed facts must be “necessarily or universally true.” Vlandis v. Kline, 412 U.S. 441, 452 (1973). Conversely, if the right or classification enjoys no constitutionally-protected status, the presumption will be upheld if it is rationally related to a legitimate legislative goal. Weinberger v. Salfi, 422 U.S. 749, 771-72 (1975).
In this appeal, Wilson bases her claim of a due process violation solely upon the irrebuttable presumption rationale. She contends that she has been “deprived of an effective opportunity to be heard, since [
In LaFleur, a Board of Education had established rules that required pregnant teachers to take a leave of absence at the end of the fourth or fifth month of pregnancy and prohibited their return to work until three months after childbirth, irrespective of whether the teacher was actually able to perform her job. The Supreme Court stated that the mandatory leave rules “directly affect ‘one of the basic civil rights of man,‘” id. at 640, (quoting
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)), i.e., the right to
In reaching its conclusion, the Court said “the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing” at her job. Id. at 644. The Court noted that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.” Id. at 639. The Court held that the Constitution requires a more individualized approach to determining whether a teacher is physically capable of continuing her employment during pregnancy and resuming her duties after childbirth. Id. at 645.
In the present case, Wilson has not been denied reasonable notice and a meaningful opportunity to be heard.
The effect of
In Part II of this opinion, we set forth the General Assembly‘s findings for limiting the amount of recoveries in medical malpractice cases. The purpose of
D
Wilson further contends that
The powers of the Commonwealth‘s courts are set forth in
One area in which the General Assembly‘s authority has not been forbidden or restricted is the common law. “The common and statute law in force at the time this revised Constitution goes into effect, so far as not in conflict therewith, shall remain in force until they expire by their own limitation or are altered or repealed by the General Assembly.
Virginia alone can prescribe the jurisdiction of her own courts. She can mould her remedies as she pleases . . . . She may be bound to provide some remedy for wrong, but she is the exclusive and sovereign judge of the form of the remedy.
The Richmond, &c. Railroad Co. v. The Louisa Railroad Co., 54 U.S. 71, 77 (1852).
Thus, whether the remedy prescribed in
E
Wilson also contends that
Wilson also claims that
Long ago, we held that “[l]aws may be made to apply to a class only, and that class may be in point of fact a small one, provided the classification itself be a reasonable and not an arbitrary one, and the law be made to apply to all of the persons belonging to the class without distinction.” Ex Parte Settle, 114 Va. at 718-19, 77 S.E. at 497. Accord Riddleberger, 229 Va. at 217, 327 S.E.2d at 665. See also Peery, 203 Va. at 166, 123 S.E.2d at 97 (statute permitting disabled veterans within prescribed classification to obtain funeral director license without examination did not constitute special legislation).
Moreover, if the classification bears “a reasonable and substantial relation to the object sought to be accomplished by the legislation,” it will survive a special-laws constitutional challenge. Mandell v. Haddon, 202 Va. 979, 991, 121 S.E.2d 516, 525 (1961). Accord Benderson Development Co. v. Sciortino, 236 Va. 136, 149, 372 S.E.2d 751, 757 (1988). Indeed, “the necessity for and the reasonableness of classification are primarily questions for the legislature. If any state of facts can be reasonably conceived, that would sustain it, that state of facts at the time the law was enacted must be assumed.”4 Martin‘s Ex‘rs v. Commonwealth, 126 Va. 603, 612-13, 102 S.E. 77, 80 (1920). Whether a classification is arbitrary “depend[s] upon the purpose and subject of the particular act and the circumstances and conditions surrounding its passage.” Id. at 610, 102 S.E. at 79. Accord Avery v. Beale, 195 Va. 690, 701, 80 S.E.2d 584, 591 (1954); Joyner v. Centre Motor Co., 192 Va. 627, 632-33, 66 S.E.2d 469, 472 (1951).
After careful and deliberate study, the General Assembly determined that health care providers faced increasing difficulty in obtaining affordable malpractice insurance coverage in excess of $750,000 and that this situation would tend to reduce the number of health care providers available to serve Virginia‘s citizens. The
According the legislation the presumption of validity to which it is entitled, we conclude that the classification is not arbitrary and bears a reasonable and substantial relation to the object sought to be accomplished by the legislation. We further conclude that the legislation applies to all persons belonging to the class without distinction and, therefore, is not special in effect. Accordingly, we hold that
F
In Wilson‘s final constitutional attack upon
To withstand an equal protection challenge, a classification that neither infringes upon a fundamental right6 nor creates a suspect class7 must satisfy the “rational basis” test. Exxon Corp. v. Eagerton, 462 U.S. 176, 195-96 (1983); Hodel v. Indiana, 452
The rational basis test is satisfied “if the legislature could have reasonably concluded that the challenged classification would promote a legitimate state purpose.” Eagerton, 462 U.S. at 196. Consequently, a classification will not be ruled unconstitutional merely because it causes some inequality or some discrimination. Dandridge v. Williams, 397 U.S. 471, 485 (1970); Sheek v. City of Newport News, 214 Va. 288, 291, 199 S.E.2d 519, 522 (1973). As Chief Justice Warren so aptly stated:
[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. . . . State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
McGowan v. Maryland, 366 U.S. 420, 425-26 (1961).
Wilson seeks to “second guess” the General Assembly by claiming that its factual findings do not constitute a reasonable basis for limiting recoverable damages in a medical malpractice action. Wilson also claims that “[e]ven if there were some factual premise for the legislation,” it must fail because there is no relationship between the General Assembly‘s goal and the means it chose to attain the goal. We do not agree.
In Part II, we have set forth the basis for the classification.
Two issues remain. Each involves the interpretation of statutes. First, Wilson contends that the limit of $750,000 imposed by
The statute provides that “[i]n any verdict returned against a health care provider in an action for malpractice . . . the total amount recoverable for any injury to . . . a patient shall not exceed seven hundred fifty thousand dollars.” (Emphasis added.) Wilson‘s claim was for an indivisible injury, see, e.g., Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202, 205, 355 S.E.2d 306, 307-08 (1987), caused by the concurring negligence of each defendant. Giving
Second, relying upon
No [charitable] hospital . . . shall be immune from liability for negligence or any other tort on the ground that it is a charitable institution unless such hospital renders exclusively charitable medical services for which service no bill for service is rendered to, nor any charge is ever made to the patient, or unless the party alleging such negligence or other tort was accepted as a patient by such institution under an express written agreement executed by the hospital and delivered at the time of admission to the patient or the person admitting such patient providing that all medical services furnished such patient are to be supplied on a charitable basis without financial liability to the patient; provided, however, that a hospital . . . which is insured against liability for negligence or other tort in an amount not less than
$500,000 for each occurrence shall not be liable for damage in excess of the limits of such insurance.
(Emphasis added.)
Wilson asserts that the italicized language should be interpreted to allow her to recover against a charitable hospital in a medical malpractice case an amount up to the maximum of the hospital‘s liability insurance coverage,8 irrespective of the limitation on recovery imposed by
In 1976, two years after the enactment of
Acting upon the joint subcommittee‘s recommendation to clarify
Wilson argues that because
We conclude that
V
For all the foregoing reasons, we will affirm the trial court‘s judgment.
Affirmed.
RUSSELL, J., dissenting.
In my view, the medical malpractice “cap” imposed by
The General Assembly shall not enact any local, special, or private law in the following cases:
. . . .
(3) Regulating the practice in, or the jurisdiction of . . . the courts . . . or providing or changing the methods of collecting debts or enforcing judgments . . . .
. . . .
(12) Regulating labor, trade, mining, or manufacturing . . . .
. . . .
(18) Granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.
The general law which constitutes our frame of reference is the entire body of statutory and common law which enables persons injured by tortious conduct to have free access to the courts, and to seek, as a matter of right, recovery of such damages as may be lawfully awarded by a properly constituted jury. A statute which purports to suspend or limit that right, favoring any special individual, class, or group, is, by definition, a special law.
The General Assembly enacted
The other side of this unhappy equation is that
The majority opinion seeks to justify this legislative venture into the swamps of economic favoritism by invoking the test articulated in Mandell v. Haddon, 202 Va. 979, 991, 121 S.E.2d 516, 525 (1961): a classification will survive a special-laws challenge if it “bear[s] a reasonable and substantial relation to the object sought to be accomplished by the legislation.” The majority opinion then refers to the legislative determination contained in the preamble to the Medical Malpractice Act (Acts 1976, c. 611) to the effect that it had become so difficult for health care providers to obtain insurance at affordable rates that public health, safety, and welfare were adversely affected. The legislative remedy was deemed to “bear a reasonable and substantial relation to the object sought to be accomplished” and to be a general law because it affected all health-care plaintiffs and defendants. In other words, because the legislature declared that a problem existed, and attempted to alleviate it, and because all members of the privileged class are treated alike, the attempt must be constitutional.
In my view, the majority‘s conclusion can only be reached by ignoring our own narrow interpretation of the Medical Malpractice Act and by resolutely closing our eyes to all concerns outside the narrow field of health care. In Richman v. National Health Laboratories, 235 Va. 353, 367 S.E.2d 508 (1988), a patient claimed injury due to the negligence of a medical laboratory which had erroneously misread a “pap smear” as “benign negative” when in fact it showed the patient to be suffering from active cervical cancer. The patient filed a “Notice of Claim” pursuant to the Medical Malpractice Act, naming the laboratory, certain physicians, and a professional corporation. The two-year statute of limitations ran before suit was filed, but the plaintiff patient relied on the tolling provisions of the Medical Malpractice Act. On appeal, we agreed with the trial court that the Act was too narrow to include the medical laboratory. We pointed to the statutory language: “‘Health care provider’ means a person, corporation . . . licensed by this Commonwealth.”
If the Medical Malpractice Act leaves uncovered clinical laboratories, their officers and agents, and all other persons engaged in the health care industry who are not “licensed by this Commonwealth,” it is difficult to see any rational relationship between the Act and the avowed legislative purpose of solving the “liability insurance crisis” even within the narrow field of health care. The Act has simply selected a relatively small group of potential defendants and given them special protection. After more than a decade‘s experience with the Act, some commentators assert that it has had no appreciable effect on insurance rates. See Report of the Joint Subcommittee Studying the Liability Insurance Crisis and the Need for Tort Reform to the Governor and the General Assembly of Virginia, S. Doc. No. 11 (1987); Comment, The Constitutional Attack on Virginia‘s Medical Malpractice Cap: Equal Protection and the Right to Jury Trial, 22 U. Rich. L. Rev. 95, 96-97 n.8 (1987).
But there is no reason to limit our view to the area of health care alone.
Because the power of judicial review is the only protection which exists against legislation which has become unconstitutional as applied, our role is not limited to examining the effect of legislative amendments. When the application of a law is fairly challenged under the Constitution, it is our duty to examine its actual effect upon those subject to it, regardless of the origin of the factors which combine to produce that effect.
Benderson, 236 Va. at 150, 372 S.E.2d at 758-59 (emphasis added). It is therefore incumbent on us to examine the effect of the Act in the wider context of all who must resort to the courts for redress.
Within and without the legal community, a controversy has raged for well over a decade concerning an alleged “liability crisis,” or “insurance crisis,” or “tort crisis.” It is charged by some that liability insurance is scarce and expensive because of a conspiracy by insurers to increase rates to cover faulty investment and underwriting decisions; it is countercharged by others that the
News media and legal publications carry frequent reports of public-school athletic and social events cancelled, of swimming pools and playgrounds closed, of patriotic parades and fireworks displays discontinued, of useful products removed from the market, of municipal services curtailed, of businesses financially ruined, all attributed to the problem of tort liability and the expense or impossibility of insuring against it. Whether the problem is illusory or real, and if real, the allocation of responsibility for it, are questions beyond the scope of this case. It suffices to say that none of these wider aspects of the problem is related to health care, and none of them ever has been, or ever will be, ameliorated by the Medical Malpractice Act. In my view, therefore, when the actual effect of the statutory cap upon all those subject to it is fairly examined, it lacks any “reasonable and substantial relation” to the legislative objective.
It may be argued that the legislature, perceiving a problem, need not attempt its resolution at one stroke, but may move against it piecemeal. Thus, it would be constitutionally permissible to legislate with respect to the “liability crisis” within the field of health care at one session, to turn to the plight of municipalities at the next, and to other professions, businesses, and occupations at another. Fair enough. But the General Assembly enacted the Medical Malpractice Act in 1976, and has made no other discernible approach to the problem as it might affect others subject to the “liability crisis” in the courts during the ensuing twelve years. The special protection granted to the narrowly defined class of “health care providers” stands alone: a unique monument to the
I have no doubt that the General Assembly has full constitutional authority to limit or restrict all damages, or all unliquidated damages, or all noneconomic damages, or all punitive damages, with respect to all plaintiffs and all defendants regardless of their identities. Having determined that a “liability crisis” exists, the legislature may take rational and proper steps to create a remedy, including limitations on “the practice in, and jurisdiction of the courts.” But it must do so evenhandedly. The remedy must not depend upon the identity of the defendant.
The familiar figure holding the scales of justice wears a blindfold. She should not be required to peer around it to ascertain whether the defendant is a “health care provider” before deciding what judgment to pronounce. The Virginia Constitution is particularly emphatic in proscribing laws which protect a select group of defendants or which limit the rights of a select group of plaintiffs to obtain redress in the courts of the Commonwealth.
Because I think
THOMAS, J., and POFF, Senior Justice, join in dissent.