Rose v. Doctors Hospital

al., Petitioners, Beth Lisa et ROSE al.,

DOCTORS HOSPITAL et

Respondents.

No. C-6535.

Supreme Court Texas.

Dec.

Dissenting Phil- Opinions of Chief Justice Original

lips Doggett and Justice from

Opinion Sept. Filed Cooper, Gwinn,

R. Brent Robert A. Ken- Huddleston, Stone, neth C. Michael W. Dal- las, Francisco, Austin, respondents. C.J. for ON OPINION MOTION FOR REHEARING COOK, Justice. rehearing granted motions for are

part part. and overruled in This court’s opinion judgment September withdrawn, following and the place. substituted in case, again this once we consider constitutionality damages provisions of the Liability of the Medical Im- Insurance provement Act, TEX.REV.CIV.STAT.ANN. 4590i, (Vernon 11.02 and 11.03 (“Medical Supp.1991) Act”), Liability time in wrongful the context of a appeals action. The court decided the statutory provi- sions are constitutional. 735 S.W.2d subsequently We decided to the court of appeals opinion statutory' damages ap- limitations are unconstitutional when plied damages in common law medical malpractice actions. Lucas v. United States, Lucas, however, holding

Our did not extend to death actions. nowWe legislature may, through hold that the cur- constitutionally Medical tail death actions. procedural presents The case also issues. We are asked to decide whether a remit- fatally titur becomes defective when party re- filing appeals it in the court of Mulder, right complain serves stan- Douglas D. John H. Hagler, arriving If Krist, Kronzer, dard used in at the remittitur. Ronald D. W. James Hous- ton, defective, petitioners. such must a remittitur appeals appeals The court reversed the trial remanded for a trial court's should have new judgment notwithstanding conditionally verdict ren- since the had been remittiturs judgment subject suggest- dered for the Roses appeals agreed, filed. wrote The court ed remittiturs. The Roses filed remittiturs in opinion unpublished an which remanded court, suggested by they amounts but cause for a new trial. right complain having reserved the been hospital applications Roses and the filed erroneously required do so. complaining opinions writ of error writ- all appeals. opinion ten Hospital the court of Our Doctors then filed a motion for rehear- appeals' appeals ing complaining court of case addresses the issues in all court of reversal rendition; opinions. hospital claimed the court of case, from reduc whether, and our decision Lucas particular in this consider wrong Beth apply damages awarded to Lisa appeals ing the court of did arriving They at the remittitur. We standard also contend Rose. filed in the court of

hold a remittitur applied an erroneous standard of appeals is a reservation unaffected reviewing arrive at the the evidence to used right appeal the standard to Hospital complains remittitur. Doctors hold We further arriving the remittitur. at a remit that the Roses filed “conditional” appeals applied the cor- of that the court titur, one which because was defective the remittiturs arriving at rect standard judg to of the non-acceptance amounted a in this case. appeals. of the court of We address ment issue in turn.

each

I. FACTS VALIDITY II. STATUTORY is history

The of this case convoluted original opinion partly explained Lucas, the United States Court appeals opinion in our on the court of and asked this Appeals the Fifth Circuit application for writ of mandamus. the limitation court to decide whether 244; purposes S.W.2d 177. For S.W.2d damages the Medi malpractice medical opinion, to a we confine ourselves the Tex Act is consistent with cal summary the circumstances which open We looked as Constitution. brought court issues must to this to de provision of our constitution courts today. decide provision thwarted termine whether Hos- Rex Rose was admitted Doctors damages limitations. application of next His pital day. and died there the The states: widow, Beth, parents, his Alton Lisa and open, per- every and All courts shall Frances, brought a lands, him, in his injury for an done son against contending that hospital, action person reputation, shall have goods, Rex had a fatal dose of Rose received remedy law. by due course of morphine patient hospital. a at the while CONST, I, 13. TEX. $2,825,000 Beth jury The to Lisa awarded $815,000 Alton Fran- Rose each to that, litigant’s analyzing noted We Rose, judg- ces the trial court rendered but provision, the under this right to redress notwithstanding ment the verdict. First, satisfy criteria. litigant must two cognizable com- reversed, litigant must have a holding The court of being re- some the hos- law of action that that there was evidence that mon cause Second, pital litigant Rex Rose’s death. The court must show caused stricted. did, however, suggest remittiturs to reduce arbi- restriction unreasonable or that the jury. Lisa awarded purpose against the trary when balanced in ac- Beth were reduced Rose’s Lucas, 757 the statute. basis of 11.02 the Medical Liabil- cordance with Votteler, 690; at S.W.2d Sax suggested Act. court remittitur ity 661, 666 reducing dam- Alton and Frances Rose’s initially acknowledged that vic- The court supported by the evi- ages to the amount negligence have well-de- tims of medical dence. sue law of action to fined common cause responded by remit- filing The Roses Lucas, at injuries. prescribed by period the time titurs within The court then concluded that However, Roses appeals. at met provisions issue damages limitations right complain expressly reserved the is, they un- criterion, were the second ruling requiring the remittiturs. arbitrary when balanced reasonable and of the stat- and basis ap against purpose argue that the court Roses Having at reached these Id. 690-92. prohibited by the Texas Constitu ute. peals was conclusions, “application” decided that the dam- it was the of the stat- ages ute to the “circumstance” of a common law were unconsti- malpractice medical claim which was held tutional “as catastrophically- to be unconstitutional. The “effect” of damaged malpractice seeking victims ” holding inapplicability is the 11.- §§ ‘remedy due course of law.’ Id. 02 and 11.03 to common law medical mal- practice According claims. to the sever- Notwithstanding specific application clause, ability this effect—and this effect holding catastrophically Lucas confined to 11.02 and 11.03. —is damaged victims, the Roses ar- clause, goal severability of this gue holding voids the statute in all portions applications retain valid respects applications. and for all We dis- possible, statute whenever reflects the case agree. law’s reminder that the construction “[i]n statutes, done, if lawfully it can be it is initially We note that Lucas was a certi- duty court to construe a statute question. fied We were authorized so as to render it valid.” Sharber v. Flor- CONST, TEX. imple- art. V 3-c and the § ence, 341, 345, 131 Tex. menting appellate procedure rules of (1938). Telegraph Western Union question, part answer the in which was State, (1884), Co. v. Tex. 630 we ac- the limitation on medical mal- “[w]hether knowledged that some statutes are severa- practice damages in TEX.REV.CIV.STAT. ble while others are not and stated the test 4590i, (Ver- ANN. art. 11.02 and 11.03 §§ determining finding for when a of unconsti- Supp.1991) non is consistent with the Texas tutionality portion of one of a statute inval- Constitution.” idates the whole statute: Any response necessary other than that to When, therefore, part of a statute is answer the authorized the Con- unconstitutional, that fact does not au- enabling stitution or the rules would be thorize the courts to declare the remain- dicta. Rule makes clear that answers also, provisions der void all the unless questions to certified are allowed as subject-matter, depend- in are connected long proceed- as “there are involved in the other, together operating ent on each ings certifying questions purpose, before the same or otherwise so con- meaning pre- it may of law of this state nected cannot be which be determi- passed sumed the would pending.” native of the cause then Tex.R. the one without the other. The constitu- App.P. 114(a). rule, Under that we did not tional and unconstitutional decide, decide, Roses contend we did may even contained in the same sec- be wrongful the limitation on death— tion, yet perfectly distinct and rather than medical —dam- separable, first so stand ages inconsistent with the Texas Con- —is though point the last fall. The is not stitution. To do so would have been to they whether are contained the same decide then pending a “cause not before section, for the into sections distribution court,” certifying involving a cause artificial; they is purely but whether are wrongful death rather than common law essentially inseparably connected malpractice. medical If, substance. when the unconstitutional out, support proposition portion For further is stricken that which re- itself, void, complete capable mains is that the statute is not we turn being executed in accordance with the severability statute’s clause. It states in intent, apparent legislative wholly inde- application part that if the of the statute to pendent rejected, of that which it was any person or circumstance held uncon- must stand. stitutional, then the effect the invalida- at 634. Id. portion tion shall be confined to adjudged statute to be unconstitutional. When consider the we Western Union Aug. Act of ch. 41.04. In test in the context of 11.02 and § Liability Act the case of the Medical recognize validity. the statute’s These we guided by the today, care sections cover “health us before definition of such Lucas. claims.” We first two-prong analysis ask common expressly claims mentions both upon a remedy is based Roses’ whether wrongful personal injury and law If law cause of action. cognizable common claims. TEX.REV.CIV.STAT.ANN. grounded, open then the remedy so was 4590i, 1.03(4) (Vernon Supp.1991). Ac- prevents application of courts test, if, Union cording Western case. Liability Act in this Medical application to when we strike statute’s claims, we are left with the common law upon theories Like all actions based complete in it- something which “remains of action negligence, the Roses’ cause self, being capable executed ac- It would have law claim. was common intent, legislative wholly cordance with pre Rose had it not been died with Rex independent rejected, of that was legislature in the served Union, 62 Tex. at must stand.” Western & TEX.CIV.PRAC. death statute. 11.03 application 11.02 and of §§ (Vernon seq. et REM.CODE ANN. complete remains death claims therefore, 1986). remedy, was Roses’ itself, of in accord capable in execution statute, by the not common conferred intent, indepen- and legislature’s with the not a the Roses do seek law. Because application to common law any dent of remedy, open provi law the courts common statute, therefore, be sev- claims. The can wrongful to their death apply sion does not ered, leaving a valid law. open that Accordingly, we hold the claim. any be To reach other conclusion would may applica the provision not bar courts legisla- ignore not the intent of the provisions of Medi damages the the tion of Lucas, specific holding in but ture the Liability death eases. wrongful Act in cal also our traditional distinction between personal statutory injury common law concerning appli- arguments Further wrongful recognized this death claims. We open of courts to stat- cation Lucas, restating distinction tradition- death actions are effective- utory wrongful open provision al rule that the courts of in More- holding by our recent ly deflected applies only to common law constitution Inc., Drug, Sterling no v. 787 S.W.2d 348 claims. relied this distinction We to. decision, (1990). we followed that 11.03 to application strike 11.02 and §§ Supreme Court deci- steady line malpractice claims. common law medical holding is no common-law sions that there wrongful Had we faced a death claim Id. at wrongful death. cause of action for same we could have reached the it is the ac- 366. Moreno establishes that conclusion, open provision courts itself, open legislature not the tions of statutory we apply does not claims. Can modify wrongful provision, which courts something Lucas rely upon to do we now death actions. may not under the law as delineated do argue that itself, further Lucas is, petitioners that the statute The Rose declare wrongful Liability damages provi- unconstitutional the context Act’s the Medical claims? We think not. For this protection death equal clauses sions violate the discussed, we con- all the other reasons federal our state constitutions. construing statute clude so, Roses, appli- argue the because This is validly applied to all but which be differentiates between cation of the statute common law claims. asserting law litigants common classes as- claims and those medical OF STATU- III. CONSTITUTIONALITY prevail To serting wrongful death claims. TORY DAMAGES PROVISIONS must overcome upon this claim Roses longstanding presumption favor of open courts To whether determine v. See Sax Vot- legislature. applica- act of the prevents an constitutional teler, (Tex.1983). severity clude The the reduction of excessive claims, Roses have not decreasing met burden with re- health care gard to claims, either the Medical making Act or cost of those insurance death statute. reasonably affordable rates available to providers, making health care afforda- pro United Constitution States ble health care more accessible and avail- deny any person vides no state shall public. able to the Id. The method jurisdiction equal protection within chose to effect CONST, XIV, of the laws. amend U.S. 1.§ purposes is outlined 11.02 and provides Our state constitution that all free pro- damages provisions. damages CONST, equal men rights. TEX. rationally visions relate to the interests I, 3. Texas cases echo federal standards state as stated the statute’s list determining when a statute whether vio statute, purposes. therefore, does equal protection provi lates under either equal protection. violate See, e.g., Spring sion. Branch I.S.D. Stamos, 559-60 IV. DAMAGES CALCULATION that, Those standards dictate when the party suggests a different Each classification created state statute method in a for calculation infringe upon rights does not fundamental damages cap We case. inherently suspect or does not burden an hold under the amount of class, equal protection requires only that “per 11.02 is to calculated on a defen rationally classification be re- dant” basis. legitimate to a lated state interest. Id. at rights suspect 559. No fundamental cap provision The damages of article in this Equal classes involved case. provides: 4590i therefore, protection requires, that the liability In an on a health care action Wrongful Death Statute and the Medical judgment claim where final is rendered Liability merely rationally Act related to against physician provid- a or health care legitimate a state interest. er, damages liability the limit civil of physician provider or health care death statute confers to an not to shall be limited amount only surviving a cause of action the $500,000. exceed children, parents spouse, the of de 11.02(a) art. 4590i Tex.Rev.Civ.Stat.Ann. § ceased. TEX.CIV.PRAC. & REM.CODE (Vernon Supp.1991). (Vernon 1986). ANN. 71.004 The restric § tion on class of reflects the beneficiaries in Baptist Hospital This court indicated ensuring compensation state’s interest Texas, Baber, Inc. v. Southeast of S.W.2d 310 only normally who persons have (Tex.1986), damages relationship had the closest to the deceased “per cap provision to be is on a and who suffer the most from his death. Baber, defendant” basis. we stated Hidalgo County Castillo v. Water appeals that the need court of not (Tex.App. Dist. No. grounds decided the case on constitutional 1989, writ). —Corpus Christi The re judgment since the the case did not statute, therefore, strictive terms of the statutory exceed “the of combined rationally interest of the state. relate to an judgment both Id. The defendants.” Equal protection violated. is not million for Baber case was Mrs. $1.3 stat- and other and survival

The Medical Act delineates the against Baptist Hospital ute in a claimants purposes interests of the state list of severally. The Campbell jointly Dr. beginning of the statute. found the amount, 4590i, 1.02(b) damages cap adjusted under TEX.REV.CIV.STAT. § $804,419. The (Vernon Supp.1991). purposes These in- article 4590i was $804,- right judgment in case did reserved but exercised the not exceed multiplied by They argue that Doctors Hos- two—the number of cul- in this case. options pable rigid defendants in the notion available pital’s case. of deprive a liti- remitting party a would to It damages cap is clear that the amounts deprive gant right appeal of to his “per should be calculated on defendant” a appeal of to decide on jurisdiction court 11.02(a) because basis of § traditionally certain which have issues against clearly applies recovery to power of this court to come within defendant, individual the award to address. plaintiff. individual recover Plaintiffs who against more than one defendant position is the as- Critical to the Rose judgment therefore obtain a in excess of sumption party complaining of a that a cap, long so as the combined suggestion of remittitur appeals’ court all liability defendants is not exceeded. imposition right appeal has the remittitur, irrespective of whether he Thus, case amount par- If a rights reserves the remittitur. $500,000, is a cap plus ty right, does not have that then reserva- price adjustment consumer index meaningless. right appeal (see present Tex.Rev.Civ.Stat.Ann. art. right appeal Only party if has 11.04), multiplied 4590i by two since remittitur can the arise whether culpable there are two in this defendants rights contained within the reservation Judgment case.2 ac- hereby rendered filing destroys right itself remittitur cordingly. appeal. V. REMITTITURS 85(c) Rules Rule of the Texas Appellate Procedure addresses the function dispute high- The remittitur in this case appeal. provides rule of remittiturs lights opposing perceptions of the nature that, if a believes that a and purpose Hospi- of remittiturs. Doctors suggested a remit- trial court should have argues tal is a a remittitur “take-it-or- titur, appeals may suggest of offer, party a leave-it” one which allows no Texas case law instructs that the one. options straightforward accept- other than one of factual suffi standard of review is rejection. ance a party accepts Once the Co., ciency. Larson Cactus Util. remittitur, judgment he to consents the and (Tex.1987). If the remit S.W.2d may right complain a it not reserve to of remittitur, ting party judg files the then Hospital’s later. position Doctors is that is in accord ment reformed and affirmed any response a to remittitur other than party with remittitur. If the de ance the acceptance, outright including reservation remittitur, judgment to the then clines file right appeal remittitur, of to the the makes 85(c). Tex.R.App.P. is reversed. the remittitur conditional and constitutes rejection judgment. Under these 85(c) Rule does not contain restrictions circumstances, argues a Hospital, Doctors remitting right appeal. party’s the to appeals court of has no choice but to re- support find Texas authorities to the We mand for a new trial. right appeal to the contention that the judgment, appeals’ court of final whether a argue party may Roses that a file a affirmation, reversal or a reformation appeals remittitur the court of but ex- any way by of pressly right complain reserve the affected terms Rule to of rehearing application 85(c). contrary, this On the court un- motion empowered questionably judg- for writ of error to this The Roses to review court. applicability any 2. We do not address the of this situation in which defendant is less than negli- comparative calculation to the completely liable. gence situation. This case does not a involve resulting ments imposition from the appeals applied of of proper standard in 85(c) Rule arriving because at judgments the remittitur. are predicated upon the court of appeals’ con- conclusion, In we hold clusion evidence is insufficient to provisions of the Medical Act are sustain the trial judgment. court’s Lar- applied constitutional when to son, 730 at legal S.W.2d 641. Like all death actions. that damages We hold un- determinations, sufficiency factual damages cap der the provisions are to be in arriving suggestions standards used “per on a calculated defendant” basis. subject are remittitur to examination finally, And we hold that reservation of may rights this court form the a remittitur filed in a basis court of appeals party’s deprive remitting party does not appeal. Herbert, See Herbert v. right appeal. judgment to (Tex.1988), citing Pool appeals is reversed insofar as Co., v. Ford Motor 715 634-35 it remands for a new trial and affirmed in (Tex.1986). respects. all other Judgment is rendered Roses in opin- accordance with this We now turn to the wheth ion. er the right appeal reservation of a to destroys contained within the remittitur PHILLIPS, C.J., DOGGETT, J.,

right appeal. to We believe that a liti joined by MAUZY, dissent RAY and JJ. gant’s right appeal obligations and the sugges this court to review a remittitur PHILLIPS, Justice, dissenting. Chief outweigh any tion confusion that The basic issue in case is whether remitting caused party’s reservation legislative limits on medical rights. party including such a res liability, Tex.Rev.Civ.Stat.Ann. 4590i nothing ervation has stated than the more (Vernon Supp.1990), un- is, obvious, right that he has a constitutional as appeal judgment. long As as the re causes action as as common-law well mitting party makes it clear court of I ques- believe actions. we resolved accepting suggestion that he is holding in Lucas v. United consequent remittitur and the reforma States, 757 S.W.2d 687 There- tion of judgment, additional fore, compelled I am to dissent. reserving right appeal amounts to States United Court of surplusage. mere Accordingly, hold Appeals for the Fifth Circuit certified the right appeal that a reservation following questions to us: contained in an otherwise remittitur valid on Whether limitation medical mal- rejection does not amount to a the remit- practice in Tex.Rev.Civ.Stat. titur. (Ver- art. 4590i Ann. 11.02 11.03 §§ Supp.1986) non is consistent with the inquiry Our final focuses on the so, Constitution, if whether it appeals standard used the court of liability applies to limit the of each defen- this case arrive at the As we to remittitur. recovery rather dant than the of each stated, have the standard is suffi factual claimant. Larson, ciency. 730 641. S.W.2d at To 270, States, v. United 811 F.2d 271 enable to determine the Lucas this court whether (5th Cir.1987). By answering the first properly applied, standard has been question negative, in the we struck down obligated court of appeals to detail malpractice “caps” the medical without re- Pool, analyze the evidence. 715 gard type being to action asserted. case, S.W.2d at 633-35 In this dutifully the court of accom has however, Today, the court states: “Our plished the evidence. analyzing task holding not extend Lucas ... did to sup are to the court At 842. We thus able conclude that death actions.” To appellate courts willing, federal port proposition, this the court relies courts guess” to an “Erie language from that seem not have undertake selected Lucas will by injured questions state Tex. ingly scope limits to actions law. its on unresolved Const, rule, Ignored V, promul- to persons opposed as survivors.1 Our 3-c. indicat au- portions opinion are different pursuant to this constitutional gated struck ing that the entire was may ques- provides that we answer thority, down, just application personal to to us “if there are involved tions certified un injury ambiguity claims.2 While certifying any proceedings before fortunate, courts both federal state of this state which questions court of law as applied to have Lucas then may determinative of cause See, injury as actions. e.g., well Wheat appears it pending and as to which (5th States, 1256, F.2d United controlling certifying court that there is Cir.1988); Hospital Laredo v. Mercy Supreme in the precedent decisions Rios, (Tex.App. 114(a). — San Tex.R.App.P. Texas.” Court denied). I too would Antonio writ today first The court concludes that the holding broadly. our more read posed in was not “determi- question Lucas conflict, the Perhaps of this because pending” the cause then because native of also that under Texas Rule holds narrowly. more have been framed it could Appellate implement- Procedure could been agree question I procedure, question our ed our certified strongly disagree I differently, but asked it response was dicta insofar as Lucas answer to the it had be.3 Our applies wrongful death rather than com- posed sufficient to enable question as was malpractice mon-law actions. At 844. This apply state law the federal court fear, holding, I seriously undermine it. That a narrow- deciding the case before question the effectiveness of our certified have been question er would also determi- procedure. authority deprive us of the native does asked, question does as nor to answer The Texas the case Constitution removes precedential val- deprive response controversy jurisdic- restriction on our that, question If no answer to a certified tion so when both federal and state ue. Likewise, at the 1. The court in Lucas said: conclude tution.” 757 S.W.2d at ... “[W]e liability opinion, limits ... are an- unconstitutional court held: "[0]ur end of its catastrophically damaged malprac- question is that the limita- swer to the certified seeking 'remedy by tice victims due course of in Tex. on medical tion law.’” 757 S.W.2d at 690. The Court further 4590i, Rev.Civ.Stat.Ann. art. long recognized that stated: "Texas courts have I, and violative of article is inconsistent with negligence victims of medical have a well-de- Id. at of the Texas Constitution.” section fined common law cause of action to sue for injuries negligently Id. inflicted them.” Moreover, said: “In the context court, at this late also whether 3.I injured neg- persons catastrophically by medical date, any right inquire ques whether the has ligence, we it is and arbi- believe unreasonable posed Circuit in was the Fifth Lucas recovery trary speculative to limit their in a Sterling appropriate. As we said in Moreno v. experiment insur- to determine whether Inc., (Tex. 1990), Drug, 787 S.W.2d 348 the certi Finally, ance rates decrease.” Id. at 691. will process very proce question a“is limited fied unreasonable the court held: hold “[W]e device; questions we cer legislature dural answer arbitrary that to conclude for arbitrary damage caps, applicable nothing also to all claim- more.” Id. 349. We tified help seriously injured, will ants no matter how is not that "the whole case before noted relationship actual ordinary assure a between appeal." rational Id. court as it would be in an amounts awarded.” Id. obligation to ensure that While this court has an good question is asked in faith the certified beginning opinion, stat- 2. At the of its the court law, capable as a matter of resolution questions un- ed the equivocally and answered certified ordinarily expertise rely on must con- "that correctly precise certifying court to frame 11.02 and of article tained Sections 11.03 for our determination. issue I, 4590i violate article the Texas Consti- § precedential can have value if question legislative intent, merely; but “it is an aid could have been greater framed with speci- not an inexorable command.” ficity precision, or our decisions in such instance, In this I find cases will beyond be of little use the feder- severability singularly clause unhelp- al case in which our assistance was in- ful. provides While it that the unconstitu- voked.4 tionality “application” provision of one of a if Even is correct does not “applications” affect other there- holding Lucas does not extend to actions of, provides it also the “effect” of death, however, I still believe striking provision a down shall be confined striking Lucas controls this ease. In clause, sentence, subsection, “to the sec- caps down the in common-law causes of tion, provision” article or If held invalid.5 action, we necessity also struck them legislature “application” had used down in proceedings unless the portions clause, both intent would statute is severable. probably is, however, be clear. As it I find neither an aid nor a command in this con- embarking upon severability analy a fusing language. sis, the primary focus must be on the inten legislature. tion of the N. Sanger, See therefore, inquiry, is whether “the Statutory Sutherland Construction part intermingled invalid is so with all (Sands rev.). Indeed, 44.03 4th ed. 1986 parts of impossible the act as to make it it is the “duty of a court to ascertain and them, separate preclude pre- and so give legislative effect to concerning intent sumption Legislature that the would have severability of a statute.” Tex.Gov’t.Code passed anyhow.” the act Sharber v. Flor- (Vernon 1988). Ann. “The test ence, 341, 345, 604, 131 Tex. 115 S.W.2d severability in the absence of an ex (1938). also, Western Union press severability legisla clause is one of State, Telegraph v. 62 Tex. Co. tive intent.” The Association (1884). close, While the issue is I cannot Educators v. The State Com Professional any conclude that the absence of limita- Education, missioner personal injury, leg- tion on actions for (Tex.1990). Conversely, the existence provided islature nonetheless would have severability of a finding clause is an aid to ceiling on claims for death. legislative not, such a intent. It is how separate ever, suggest Two factors that the conclusive. As Justice Brandeis said Kansas, legislature in Dorchy never intended for section 11.02 State 264 U.S. First, 323, 324-25, 44 S.Ct. to be severable. the internal 68 L.Ed. 686 “sever- (1924), savings provides ability clause clause” in rule of section 11.03 indicates construction determining aid in contemplated never Lucas, problem any, any provision 4. The with applica- if did not arise If of this statute or its way ques- from the the Fifth Circuit framed the any person tion to or circumstance is held tion, but from the fact that we unconstitutional, answered it invalidity invalid or such qualification. without reservation or Before we applica- does not affect other or 11, 1988, May handed down this court given tions of this statute which can effect already arguments had time in this case. The heard oral for the first clause, sentence, without the invalid subsec- arguments briefs tion, section, article, applica- or or parties, supplemented by post-submission the briefs, tion, affect, invalidate, impair, and shall not extensively dealt with the constitutional nullify or the remainder of this but the significance of whether a cause of action is clause, effect thereof shall be confined to the sentence, subsection, section, legislatively judicially or created. If we found provi- article or arguably persuasive, this distinction we should adjudged sion of the Act so to be invalid opinions. have raised it in our various Lucas unconstitutional and to this end the above are Instead, we answered the without re- declared to be severable. striction, and that answer controls the case at note, 1977, Tex.Rev.Civ.Stat.Ann. art. 4590i Acts modify bar unless we choose Lucas. 817, (Vernon Supp.1990). ch. 41.04 § complete severability 5. The clause is as follows: Meeting Tapes of Formal Transcription of the applications of of different severance Affairs, wording on State House Committee damages cap in 11.02. The section sug- 14, 1977, history 11.03 at 183. legislative of section March only it to gest legislature intended legisla- Thus, indication of a is no there entirety of the sec- from the be severable liability caps in the to sever tive intent limitations, 11.02(a) opposed to a applications. The into distinct 11.02 section particular application thereof: the contemplated that only legislature 11.03. In the event Section Sec. down, in $500,000 might struck cap be 11.02(a) subchapter is stricken $150,000pain and suf- case the in- subchapter or is otherwise from this remain. 11.03 would cap in section fering than a method other validated in Second, high damage awards in means, following legislative the through cases were personal injury common-law effective: .... shall become legislature greater much concern 4590i, art. Tex.Rev.Civ.Stat.Ann. wrongful death cases. than awards in language was (Vernon Supp.1990). This nothing findings There is approved legislature included after Report,6 upon which Keeton Commission proposed amend- Representative Powers’ based, suggest the Act was Powers Representative ment to H.B. impose dam- or should legislature would to the House: explained the amendment wrongful death cases ages limitations section, words, other If the rest of the Keeton Commission Although alone. $500,000 cap were to be the limit or damages recov- only capa recommended unconstitutional or invalid declared large suffering, it cited pain and erable court, [by] some other any by a reason injury cases as personal recoveries legislature, then means than escalating [other] health contributing to factor suffering limitations of just pain and in the 1970s. in Texas insurance costs Bill, $150,000 except in stay in the would that sub- “apparent found Commission disfigurement. a case of judg- in settlements and reductions stantial involving inju- severe in those cases ments Henderson, Representative speaking impact on insur- significant have a ries will amendment, described it sim- against the rate.” pure premium and the ance costs ilar terms: Report, at 6. Keeton Commission Mr. SPEAKER: UNIDENTIFIED is, Henderson, already, there an internal Further, legislature enacted when Bill, Is there cap under the is there not? Im Liability and Insurance Medical that if the Court finds not a 1977, damages recovera Act in provement $500,000 study commission cap which the Wrongful Death Act were under ble recommend, placed but which we did not to those recover comparison very limited physicians, is found in there for injury actions. personal able in common-law unconstitutional, revert we would v. Schin Prior to our decision Sanchez $150,000 suffering cap, do we pain and (Tex.1983),damages dler, 651 S.W.2d 249 not? Wrongful Act Death under recoverable loss rule. pecuniary correct, limited were That’s HENDERSON: REP. Walker, 48 Tex. contingent. See March provide that as a Report of the Texas report "Final Legislature in its entitled created the Medi- the 64th In Commission, Liability Study Liability Study Commis- Medical Professional cal Professional enacting refer- Legislature.” Commission" in as "the Keeton known sion to 65th chairman, Page See Note W. Keeton. Improve- ence following and Insurance the Medical Tex.Ins.Code, Tex.Rev.Civ.Stat.Ann. explicitly Act in ment 1981). (Vernon twenty-two For art. 21.49-3 findings adopted this commission. the causes of Commission studied months the 4590, 1.02(13) (Ver- Tex.Rev.Civ.Stat.Ann. It alleged crisis." Legislature "medical Supp.1990). non to the 65th made recommendations (1877). large The in part, rendering judgment recoveries achieved that Alton Rose personal in injury $815,000 common-law cases Frances and Rose each recover 1970s, therefore, primary were the focus of Hospital, from Doctors less remittiturs of legislature’s Indeed, $230,000 $315,000, the ini respectively, concerns. and tial $2,825,000 draft the Medical Liability of and Insur Lisa Rose recover from Improvement provided ance Hospital, $500,- Act for a dam Doctors less a remittitur of $500,000 ages cap only personal injury plus in interst and costs. cap

cases and in wrongful for death cases.7 DOGGETT, Justice, dissenting. Undoubtedly, legislature could have again eagerness implement Once a cap separate wrongful enacted a death policy produced social desired has a result actions, cap a and such would not have jurispru- both inconsistent with established violated open courts of our incongruent appropriate dence with the Sterling constitution. See Moreno v. judiciary. Masquerading role of as a 348, (Tex.1990). Drug, 787 S.W.2d 355-57 restraint, judicial defender the court The sections 11.02 and trespasses upon the function of the redraft- surrounding and the circumstances their legislation, ing power a reserved to an- however, passage, demonstrate government. branch of other court’s did intend for section 11.02 surgical dissection of of the 1977, not, be severable and would Improve- and Insurance Medical passed cap wrongful on ment Tex.Rev.Civ.Stat.Ann. 4590i cap personal death without claims (Vernon Supp.1990), an pre- effort injury claims. damage serve death clear statutory provisions

As the actions contravenes both the lan- are not sev- erable, guage century of the over a holding Lucas, if statute and our even limited actions, compelling precedent. compels common-law similar strongly result in at I the case bar. While strategy court’s endeavor is disagreed extensively with see questions and answer not relevant to to ask C.J., (Phillips, 757 S.W.2d at 702-21 dissent- inquiry. our fundamental ing), I would not disturb so a consti- recent not, presented by appeal as the court tutional decision our court. I am also suggests, applicability “open done, unwilling, I believe has the court 1, provision, courts” article section 13 of scope to restrict the decision Constitution, the Texas as considered in imposing qualification upon a retroactive States, Lucas United S.W.2d 687 question. answer to the certified (Tex.1988),or appropriateness of a stat- applied Liability utory personal injury Before it the Medical distinction between death, Improvement Act, and Insurance before us in v. Sterling Moreno Inc., appeals sup- Drug, found sufficient evidence to verdict, port suggest- legisla- jury’s subject Nor need we consider whether the could, petition- ed with our common-law remittiturs. The ture should consistent constitution, suggested limit recoverable in ers each filed remittiturs agree appeals based amounts. I the court of actions Rather, applied deriving malpractice. the correct standard in its medical suggested question presented I of constitutional common-law remittiturs. is one affirm judgment would therefore law and construction: whether unconstitutionality part partial court of it in of a statute reverse Transcription Representative corporated Tom Uher offered the amend- into the Act. See caps ment to House Bill 1048 which Meeting Tapes of Formal House Committee injury to both and death amend- Affairs, cases. The on State March approved in- ment was the House and was

853 other similar property, real and annulled Today’s invalidates the remainder. deci- repeatedly sion, The had been answering sales. statute question, misapplies pur- it the extent held unconstitutional to precedent century over a written or time of sale ported change to the method court. respect private contracts purely with We first addressed issue of the effect prescribing the mode of enforcement. invalidity statutory provision of a the court was whether the issue before State, Telegraph Western Union Co. 62 v. was as to those con- statute constitutional (1884). Tex. 630 There we considered prescribing a method of enforce- tracts not purporting whether a statute to tax ment, i.e., rights those in which no valuable messages, telegraph which was held uncon- Echoing the test set forth were affected. Supreme stitutional the United States Union, stated: in Western imposed Court to the extent on interstate that repeatedly This Court held if has messages, constitutionally applied could be it part of an is declared invalid does act only. messages intrastate We held that act, unless the destroy not the entire not, stating partial it invalidi- could intermingled with part all invalid is so ty of a statute voids remainder when impossible it parts of act as to make provisions interdependent are so them, preclude separate and so subject-matter insepa- as connected to be presumption Legislature would rable: It passed anyhow.... act point they is ... whether are essen- that, also clear where statute contains inseparably tially and in sub- connected legal, and provisions are others which If, stance. when the not, may given unconstitutional which are effect be out, portion legal provisions by separating is stricken which re- them from itself, illegal. applies complete capable only But this rule mains is provisions to a where the are being executed in statute accordance with separable dependent one intent, and not legislative apparent wholly inde- other; support and does pendent rejected, that which was insepara- contention that that which stand. must separated. ble be (quoting Cooley’s 62 Tex. at 634 from (em- 345-46, Tex. at 115 at 606 Lim., 215). today’s opinion, Const. Unlike Examining phasis supplied).1 the statute proper Western standard was Union partial rule of applying the formulated but applied. enunciated also We invalidity, that: we concluded that, held because the that, intermingled any if separated parts are so could not be between interstate valid, parts they cannot are be messages, and intrastate “the different In the form separated the invalid. from parts intimately the act are so connected enacted, pur- that this when its law was part invalidity of a of the law possibility poses analyzed are there is invalid.” renders the entire law Id. at 636. part each separating them so that Florence, Similarly, in Sharber capable complete remains as in itself and (1938), Tex. 115 S.W.2d 604 cited also being in accordance with the executed today, we considered the ef- intent, independent legislative wholly partial unconstitutionality fect of of a mor- parts rejected being held the atorium statute and entire stat- unconstitutional. postponed ute The act sales of invalid. Id., at Tex. or property under executions orders of trust, sale, mortgages applied or analysis under deeds of This same has been provision held to any power an entire notice be giving other contracts of sale strike separable separable Sanger, Statutory the act is Sutherland Con- and whether Accord. N. (Sands rev.) (test disposi- fact). prong of this test is 4th ed. second struction legislature intended tive in this cause. whether the the act to unconstitutional when n.r.e.) (“after certain sit- writ ref’d the invalid uations. In City Arthur, Hanks v. parts severed, Port have been there must re of (Tex.1932), 48 S.W.2d 944 we determined main intelligible an and valid ordinance ca that Port attempt preclude Arthur’s lia- pable being placed of in execution and con bility through its municipal charter re- forming to the general purpose and intent quiring that it be notified of a defective enacting body.”). Today’s opinion of the prior condition to the inju- occurrence of an stands in stark contrast to this venerable ry was “open unconstitutional under the law, body of superficially recognizes as it provision courts” to the extent notice of controlling principles completely but fails required defects was from those who had apply any them in meaningful logical or knowledge of them. The enactment did manner. not remain valid under the more limited In evaluating any portions whether of injured circumstances when the party had sections 11.02 and 11.03 of the held knowledge condition, actual of a defective valid, unconstitutional remain our but rather compelled this court was to void focus is not what could or provision the notice in toto. Because no might drafting statute, have done distinction was made in the charter lan- but what it has done and the extent to guage between applica- valid and invalid portions which the invalid and valid tions, it, concluding refused to rewrite statute are severable. If the unconstitu- plain terms, however, that “the tional and constitutional are in- permit notice section do not us to make connected, separably ” engage we cannot these eliminations situations which judicial legislation by rewriting the statute applying provision the notice would be un- the legislature might, could or but must constitutional. (emphasis 48 S.W.2d at 950 strike the statutory provisions in their en- supplied). tirety. parte Levinson, Ex 160 Tex.Crim. These cases well-recognized establish a 606, (1955) (court may statutory set of and constitutional rules portions strike of the statute but not that have consistently been followed rewrite, law). change or add to the fact, jurisprudence. not but a few purport Sections 11.02 and 11.03 to limit court, ago months in a unanimous deci damages in “an action on a health care sion, applied them to strike an legis entire liability claim.” The term “health care lative act when one was found liability throughout claim” is used the stat- invalid. Association Professional ute, appearing times, twenty-three some Educators v. State Commissioner Edu encompasses both and com- cation, 788 S.W.2d 827 Inter mon-law causes of action.2 on Based appellate mediate Texas courts have relied Act’s inju- common treatment of actions for upon and consistently applied these well-es death, ry and those for the court of tablished rules looking concluded, effect, that the two in- were particular statute to determine sev- separable purpose determining for the See, erability. e.g., City Taylor v. Tay unconstitutionality. Co., S.W.2d at 247. Bedding Manufacturing lor Nothing brought has been to our (Tex.Civ.App. S.W.2d 215 attention — Austin ref’d); legislative history in the Independent sug- writ of the Act to San Antonio State, (Tex. gest any given School consideration was District 173 S.W. 525 ever ref’d); Civ.App. separating Antonio writ actions for death and those — San City Pinson, Forney injury. v. Estate 575 for term Because the “health care (Tex.Civ.App. liability inseparably claim” includes both — Texarkana treatment, departure Tex.Rev.Civ.Stat.Ann. 4590i or other claimed ac- from 1.03(a)(4) (defining liability cepted “health care standards of medical care or health care against safety proximately claim" as a "cause of action injury health or results in treatment, provider physician patient”) (emphasis supplied). care or lack of or death death, single class of sec- 11.03 refer injury and actions for in a health care awarded partially 11.03 are inval- tions 11.02 and —those action, personal injury liability whether for id, entirety. in their but invalid The focus of the statute death. or damage in this uphold the To inflicted but on the type of harm words, cause, strikes no word provider of of the defendant —a nature but rewrite the to redefine must statute term “medical care services. The health “health care claim” term similarly never been em- malpractice” has 11.03 mean sections 11.02 and of the Act to or previously in either case statute ployed only wrongful As actions for death. injury inflict- the extent of the to describe Hanks, do plain “the terms” of the statute ed; rather, synonymous it is a with term judicial intrusion into permit this liability.” “health care in- legislative contrary The arena. court’s confirms this A review statute terpretation blatantly with the conflicts malprac- The term “medical conclusion. legislature’s intent the term encom- once, findings in the and tice” is used pass injury actions for and death both There the purposes section the statute. sections, not throughout many the Act’s number of legislature states that “the just limiting re- damages, but those liability health care claims”—inclusive of health lating to notice of the claim to the injury and personal actions whether for physician, con- provider care informed increased since 1972 inordi- death —“has disclosure, filing legitimate health nately; applicability sent and [that] liability care claims”—inclusive actions expert ipsa loquitur, doctrine of res and personal injury and death— whether provisions, important to witnesses. These for affecting contributing medical “is a factor passage, designed were to benefit Act’s rates_” liability Tex.Rev. professional by providers reducing the num- health care 1.02(a)(1), (2) art 4590i Civ.Stat.Ann. § against ber suits them and of frivolous (Vernon Supp.1990). legislature found testimony placing on the type controls increased claims this “situation” —of and If the offered at trial. witnesses or death— personal injury whether for today with court’s decision to be malpractice insur- “has created medical consistency, is not some measure ” Texas.... Id. ance crisis in State of oriented, just care result term “health 1.02(a)(5) (emphasis supplied). Surely § throughout liability claim” the statute now not limited to referred to was the insurance only actions for This rash means death. inflicted personal injury coverage for legislative substantially choice the court professionals, also extended to medical but provisions benefitting weakens these em- put the statute Simply death as well. community. state medical in- malpractice” “medical ployed the term “health terchangeably with the term care The court’s discussion confuses Neither of these terms differen- liability.” care terms “health claim" personal injury and death.4 tiates between to draw “medical claim” emphasis places great distinction between further The court passed, when personal 11.02 on the fact injury actions.3 Sections (Vernon Supp.1986) analysis today’s opinion, Contrary 11.03 to the 4590i holding personal injury drew between with in Lucas no distinction consistent the Texas Constitution.... death. The court that it was not. S.W.2d at 687. We held granted cause had been in this that writ noted the term "medi- the Fifth Circuit’s use of Neither yet any respect. 757 failed to differentiate it in malpractice damages” answer nor our was cal can of the term S.W.2d at 690. Nor the use personal in- recoverable limited malpractice damages” Lucas be in- "medical terpreted jury. injury solely personal as a reference opinion damages, opinions in Lucas em- as the court’s concludes. 4. The four handed down Lucas, See, part, question pertinent interchangeably ploy certified in as well. the terms (discussing e.g., asked: dam- 757 S.W.2d at 689 malpractice” malprac- age in "medical statutes the limitation medical Whether J., states); (Gonzalez, dissenting) damages in of other tice Tex.Rev.Civ.Stat.Ann. “savings included a leg- clause” common to ignored legislative the court has clear islative enactments.5 But such clause clause, sentence, is directive. There is no one not a “A separability section, cure-all: clause does article or that can be parts clothe immunity the valid with from excised sections 11.02 and 11.03 and from invalidating gives effect law Rather, still leave workable remainder. inseparable blending bad with “savings has viewed the clause” good.” Crawford, E. The Construc- legislative delegation as a to the judiciary (1940); Statutes see also power If write statutes. Construction, Statutory Sutherland su- had chosen different pra, at 44.08. sections, these a different presented. be would it did not But and the legislature recognized the limitation must take the of the Act on damages contained in section 11.02 written, prefer might not as it to see the might very well found unconstitutional statute drafted. by court, provision this and made for that contingency in section 11.03 com- injects The court’s decision an unwork mences: uncertainty jurisprudence. able into Texas 11.02(a) portions long Imagine ago

In of statutes the event that Section of this de arising subchapter subchap- is stricken clared unconstitutional one one from this grave. ter having or is a meth- otherwise invalidated from For resuscitated means, through legislative cause, od other than an unconstitutional statute shall following become effective.... limit is what there to revivification of oth City prevent ers? What would of Port Rather contemplating partial than strik- from invoking provision, Arthur the notice ing of Section enacted Hanks, to held unconstitutional actions special unique replace mechanism to Or, similarly, why death? provision entirety if held invalid filing would fees held unconstitutional in any respect. (Tex. Hanlon, LeCroy v. 713 S.W.2d 335 Moreover, given this concern as to un- 1986), not argued applying now be to constitutionality, particularly appropri- cases? other These and numerous legislature purpose- ate to assume examples highlight the possible error of ly specific wording chose the included carving exception long-standing out an to a severability clause as well as other constitutional law and rule of provisions Act. of this attempt in an to validate sec construction severability in- clause at issue here 11.02 and 11.03 in this cause. tions par- structs court to limit the effect distinguishes sentence, court further our hold- “clause, tial invalidity to the sub- ” section, section, ing in Lucas on the that it arose in provision article or held basis result, to a from a unconstitutional. its rush to answer certified feder- (statute distinguishes any provision applica- “medical If of this statute or its claimants”); 698, “other any person claimants” from 699, tort circumstance is held or J., (Gonzalez, (referring dissenting) unconstitutional, 700 invalidity or such invalid claimant, malpractice” the "medi- the "medical applica- or does affect other plaintiff, malpractice" malpractice” cal "medical given of this can be tions statute which effect malpractice" actions and the "medical insurance clause, sentence, the invalid subsec- without J., crisis); (Culver, concurring) (discussing tion, section, applica- article or or awards); malpractice” (Phillips, “medical tion, affect, invalidate, impair, and shall not C.J., (statute dissenting) differentiates between nullify or the remainder but the persons suing malpractice" for "medical clause, thereof shall be effect sentence, confined (Phil- torts); for other n. 7 those who sue section, article, subsection, provi- C.J., dissenting) lips, (referencing mal- "medical adjudged of the Act so to be invalid or sion damage statutorily practice" im- and to this end the above are unconstitutional states). posed in other to be declared severable. 29, 1977, Aug. provides: ch. 41.04. 5. That clause Act of equal in the court’s can I concur doing, court Nor appellate al court. In so rather analysis. Unlike authority protection to answer seriously erodes V, by the relied questions. opinion article sec- certified Under unauthoritative Constitution, constitutionality concerning we are today tion 3-c of the court empowered questions of state of benefi statutorily “answer limited class aof death, appellate from a federal law certified action for ciaries in an imposed by limitation court.” District Hidalgo County Water Castillo 114(a), Appellate Pro- Rule Texas Rules of (Tex.App. Corpus No. — cedure, is that state law be determinative writ), here is the the issue Christi pending. then Nowhere is of the cause tort victims created between distinction suggestion remotest that a deci- there the defen by a certain class of injured who are question is this court on certified sion of i.e., providers care health dant — —and controlling precedent than any less a state way, Put another injured others. appeal from a state a decision made on class to create a favored is it constitutional appellate simply This is not the law: court. provid only health care of tortfeasors — pay full dam required pointless exer- ers—who are would be a Certification they inflict? The injuries ages answers are for the cise unless the state court’s binding find a for this dis appears basis regarded as an authoritative purposes Fifth of the Medi of state law. Thus the in the recited statement tinction suggestion Improvement that answers early Insurance Circuit’s cal “merely claims, adviso- questions to certified decrease reduce excessive Act to entitled, dicta, given ry and like to be making health care insurance costs persuasive binding but not effect as however, That was more affordable. forgot- precedent,” long has since been recommendations upon based accepted that the state ten and is now Liability Study Texas Medical Professional binding. answers are Commission, frequently referred to as not conclude Report,” which could “Keeton Wright, Cooper, E. 17A A. Miller and C. an any correlation between that there was 4248 at Federal Practice and Procedure § the Act’s damage limitation and arbitrary (2d 1988).6 179 ed. To hold otherwise Moreover, has this court purposes.8 stated very purpose of the would undermine the of such recognized the absence previously process ensure that certification —to disregard relationship.9 By both a rational litigants, same state law is providing an extraordi ing this and whether in state or federal court. The analysis, equal protection narily superficial clearly by our federal courts are bound injustice both to a serious and, the court works Lucas, Wright, supra, decision see meaning of killed and to the fact, those who are have so held. v. United Wheat Cir.1988).7 guarantee. States, 1256, (5th vital constitutional F.2d 1259 860 If, however, had been no federal. there Insurance Co. v. state or 6. Accord Mutual Penn Life Abramson, 1202, ap- (D.C.App.1987) process 1207 to the federal 530 A.2d available certification question Lucas, (opinion certified "is stare decisis of on pellate would have court in abstention court, judicata as to the same this parties as well res placing parties required, before been Elliott, courts”); 74 In re in local resulting in the same answer state courts and 600, 347, 610-11, (1968) 446 P.2d 354 Wash.2d Mundy, Fed- question. Lillich and the same (decision "legal precedent question certified Law State eral Court of Doubtful Certification involving applicable all future controversies 888, (1971). Questions, U.C.L.A.L.Rev. 907 18 legal question and unless the until the same abstention avoids the The fact that certification Richards, opinion”); re court overrules binding nature of process not alter the should 827, (Me.1966) (judgment certi- 223 A.2d the result. having proceedings the force of treated "as fied within the courts of decided case law state”). Report citing at Keeton 8. Today’s a bifurcated stan- decision create unconstitutionality 11.02 and of sections dard of 9. Id. forum, dependent the nature of the Today’s decision will no doubt come as a

great shock many parties, lawyers judges who operated on the well-

founded belief that the effect of Lucas was

to render limitations unconstitu- See,

tional in all cases. e.g., Mercy Hospi- Rios,

tal v. (Tex.App. denied)

—San (uphold- Antonio writ

ing, action, in a trial court’s

refusal to order remittitur of by jury

awarded excess of

limit Supreme because Court “[t]he

in Lucas v. United States ... has held that

the limitation on medical dam-

ages as set out in the above statute is

unconstitutional.”); Wheat v. United

States, (“[a]s 860 F.2d at parties

agree, the Lucas decision moots the consti-

tutional [wrongful death] appeal.”). I approve Because do not rejection controlling precedent

court’s drafters,

become self-appointed legislative

I dissent. MAUZY, JJ.,

RAY join in this

dissent.

Mary STAUFFER, Petitioner, K. HENDERSON, Respondent.

J.D.

No. C-7480.

Supreme Court of Texas.

Dec.

Rehearing Overruled Jan.

Case Details

Case Name: Rose v. Doctors Hospital

Court Name: Texas Supreme Court

Date Published: Dec 19, 1990

Citation: 801 S.W.2d 841

Docket Number: C-6535

Court Abbreviation: Tex.