Med mal suit raises constitutionality questions in Orleans Parish
Alejandro de los Rios Aug. 30, 2010, 2:00am
A Gretna couple is challenging the constitutionality of liability caps on medical malpractice cases in Louisiana in a suit in Orleans Parish Civil District Court.
Michael and Terria Lewis are suing on behalf of their daughter, Diamond Lewis, who was born five weeks prematurely in 2004 and subsequently lost her leg after a series of medical procedures. The couple alleges that the doctors involved acted negligently, causing a vascular clot in their daughter's leg that led to the amputation.
In a supplemental petition for damages filed in March by New Orleans attorney Gilbert Andry IV, the plaintiffs claim that the Louisiana Medical Malpractice Act liability limits are unconstitutional because "determination of and awarding damages is a judicial function."
The petition also claims that the "adequate remedy" clause of the act "has been eroded by the passage of time" and that because insurance premiums have not also been capped, "the 'crisis' is now on the other side, where victim's recoveries are capped at $133,000 (using 1975 dollars) while no cap exists on insurance company compensation, profits, or premiums."
Plaintiffs want their constitutionality argument to "be severed and tried separately by the Court only after a factual determination that damages exceed the cap amount."
Special Assistant to the Louisiana Attorney General Elliott Baker filed a petition of intervention in July denying the unconstitutionality claims. It states that the plaintiff's claims "are not ripe for determination unless and until this Honorable Court rules that the statute applies in this case to adversely affect the Plaintiffs."
Orlans Parish Civil District Judge Herbert Cade ruled in favor of the state and bifurcated from the medical malpractice trial until and if the plaintiffs are awarded more than $133,000 in damages.
Named defendants include the State of Louisiana Department of Health and Hospitals, the LSU Health Sciences Center Health Care Services Division, Children's Hospital and the Medical Center of Louisiana at New Orleans.
Michael and Terria Lewis filed the original petition for damages in September 2008 in proper person after a medical review board found that the doctors complied with all reasonable standards of care in May 2008. Andry enrolled as counsel of record for the plaintiffs in September 2009.
In December 2009, Cade ruled in favor of the defense motion for summary judgment and dismissed the eight doctors that treated Diamond Lewis after he premature birth.
New Orleans attorney Belsome Bradley is representing Children's Hospital. Metairie attorney Irving Koch is representing LSU. Caldwell's office is representing the Department of Health and Hospitals.
A Sept. 10 hearing has been set on a plaintiff motion to compel the defense's answer to interrogatories.