Summary
In Graley v. Satayatham, 343 N.E.2d 832, 836 (C.P. Cuyahoga County 1976), the court struck down the Ohio statute abolishing the collateral source rule in medical malpractice cases because no showing of a "compelling governmental interest" was made.
Summary of this case from Pinillos v. Cedars of Lebanon Hospital Corp.Opinion
Nos. 948074, 945919.
February 20, 1976.
Court of Common Pleas of Ohio, Cuyahoga County.
Leonard P. Sabalis, Cleveland, for plaintiff.
Robert G. Quandt, Cleveland, of counsel, for defendant.
Richard F. Walsh, Cleveland, the plaintiffs.
Mario C. Ciano, Cleveland, for defendant.
MEMORANDUM OF OPINION
The within cases are actions in which the plaintiffs alleged medical malpractice on the part of the defendants and are asking recovery herein for the damages allegedly suffered as a result of said malpractice.
Case No. 948,074, Arlie B. Graley v. Pradist Satayatham, M.D., was assigned to Judge George J. McMonagle.
Case No. 945,919, Richard Ahlgrim, et al v. The Cleveland Clinic Foundation, et al, was assigned to Judge George W. White. The defendants in each case have filed motions raising identical questions. The within opinion is the joint opinion of Judges McMonagle and White.
The defendants have filed motions to dismiss the complaint on the grounds that:
(1) Plaintiffs in their complaint have ignored Ohio Revised Code Section 2307.42 in that they have failed to list all benefits of any kind paid or payable from any source other than the plaintiffs' immediate family.
(2) Each plaintiff has failed to verify upon his own knowledge the listing required in No. 1.
(3) The plaintiffs included a prayer for damages in the complaint of each.
(4) In the Ahlgrim case, the defendants contend that the plaintiffs' complaint is violative of Revised Code Section 2307.43 since the claim for recovery exceeds $200,000.00.
The Graley case was filed on October 14, 1975, and avers that the last treatment of the plaintiff by the defendant was in November, 1974.
The Ahlgrim case was filed on August 13, 1975, and asserts that the alleged malpractice occurred on August 13, 1974.
It is, therefore, to be seen that each of the within actions was filed subsequent to July 28, 1975, and the occurrences complained of took place prior to July 28, 1975. The so-called new Ohio Malpractice Law (Amended Substitute House Bill 682) was adopted by the Legislature on July 24, 1975; approved by the Governor on July 28, 1975; and was filed with the Secretary of Ohio on July 28, 1975.
The within motions to dismiss present the following issues:
(1) Does the said Ohio Malpractice Act apply retroactively to any occurrence that took place prior to July 28, 1975?
(2) If the said act does apply retroactively, are the provisions of Sections 2305.27, "Medical claim not to be reduced by receipt of certain other benefits"; 2307.42, "Pleading medical claims"; 2307.43, "Limitation on general damages in medical claims"; and 2317.02, "Privileged communications and acts", constitutionally invalid by virtue of being in conflict with the Ohio Rules of Civil Procedure and/or the Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Ohio Constitution, both of which mandate "equal protection" of the laws.
We shall discuss the issues in reverse of the order to that previously stated. The issue first discussed will deal with whether the said code sections are constitutionally valid.
The basis of the defendants' motions constitute contentions that the complaints violate Sections 2307.42 and 2307.43. Said Revised Code Section 2307.42 provides as follows:
Sec. 2307.42. Any complaint or other pleading which sets forth a medical claim shall contain the following:
(A) A statement of the facts constituting the cause of action in ordinary and concise language;
(B) A listing of all benefits of any kind paid or payable to the claimant from any source other than the claimant's own assets or assets of the claimant's immediate family as a result of the incident or occurrence forming the basis of the medical claim;
(C) A demand for judgment for the relief to which the pleader claims he is entitled, except that the amount of relief in damages thereof shall not be stated.
The listing required under Division (B) of this section shall be verified upon the claimant's own knowledge, information, and belief.
Revised Code Section 2305.27 provides as follows:
Sec. 2305.27. Except as provided in Section 2743.02 of the Revised Code, in any medical claim, as defined in Division (D) of Section 2305.11 of the Revised Code, an award of damages shall not be reduced by insurance proceeds or payments or other benefits paid under any insurance policy or contract where the premium or cost of such insurance policy or contract was paid either by or for the person who has obtained the award, or by his employer, or both, or by direct payments from his employer, but shall be reduced by any other collateral recovery for medical and hospital care, custodial care or rehabilitation services, and loss of earned income. Unless otherwise expressly provided by statute, a collateral source of indemnity shall not be subrogated to the claimant against a physician or hospital.
Revised Code Section 2307.43 provides as follows:
Sec. 2307.43. In no event shall an amount recovered for general damages in any medical claim not involving death exceed the sum of Two Hundred Thousand Dollars.
Ohio Rules of Civil Procedure were duly adopted pursuant to Article 4, Section 5(B) of the Ohio Constitution.
The Constitution specifies:
"All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect".
Under this provision all laws in existence at the time of the adoption of the rules, and all laws which are attempted to be adopted thereafter and which are in conflict with the Rules shall "be of no [further] force or effect".
Civil Rule 8(A) provides:
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
Civil Rule 11 provides:
Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address. Except when otherwise specifically provided by these rules, pleadings need not be verified or accompanied by affidavit. . . . (underlining ours)
Civil Rule 54(C) provides:
A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled; however, a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of the trial. Additional service of process is not necessary upon such amendment. (underlining ours)
It is obvious that R.C. Sec. 2307.42 is in conflict with the cited Civil Rules and by the mandate of the constitution, the Rule must prevail. The requirements of this section of the Code are, therefore, invalid.
It is also interesting to note that the original malpractice bill submitted to the Legislature provided that the amount of a plain tiff's recovery for any medical claim should be reduced by such collateral benefits the claimant had received. This obviously would have included any workman's compensation, Blue Cross, Blue Shield, social security, or any other insurance benefits. This provision was deleted in the act passed by the Legislature and signed by the Governor.
Section 2305.27 provides:
". . . an award of damages shall not be reduced by insurance proceeds or payments or other benefits paid under any insurance policy or contract where the premium or cost of such insurance policy or contract was paid either by or for the person who has obtained the award, or by his employer, or both, or by direct payments from his employer, but shall be reduced by any other collateral recovery for medical and hospital care, custodial care or rehabilitation services, and loss of earned income . . ."
[3, 4] This appears to provide that collateral benefits such as hospital care re-received at a public institution such as Sunny Acres, Cleveland Metropolitan Hospital and a state institution where the care is not paid for by the patient shall be deducted from a medical claim award. The provision that "an award . . . shall be reduced by any other collateral recovery for . . . loss of earned income" is incomprehensible. However, the entire provision because of its being violative of the equal protection rights of the constitutions is invalid.
Since we are particularly concerned here with the pleading requirements (Section 2307.42) the Court has no problem in determining that the statute is invalid except as it may apply to actions against the State of Ohio.
The above quoted Section 2305.27 refers to Section 2743.02. This section specifies that collateral benefits are deductible from a medical claim against the State of Ohio which is entered by the Court of Claims. This is obviously a valid provision since the State's waiver of immunity and its consent to be sued may be subject to such restrictions or limitations as the Legislature imposes.
Further, by the requirement that collateral benefits be listed only in complaints for medical malpractice, the General Assembly has ordained differential treatment for claimants in this type of personal injury tort action from all other types of tort cases. The legislation in this respect collides with the Fourteenth Amendment of the U. S. Constitution and Article 1, Section 2, of the Ohio Constitution. These constitutional provisions both mandate "equal protection" of the laws.
This is not to say that separate classifications are, in all cases, constitutionally infirm; it is to say that separate classifications are invalid in circumstances where it is not demonstrable that "a compelling governmental interest" exists. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. In other words, a statutory classification cannot be tolerated unless a legitimate legislative objective is furthered by the classification. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed. 2d 393.
This statute, R.C. 2307.42, and its companion, R.C. 2305.27, confer benefits on the medical practice defendant unavailable to other defendants in tort cases; correspondingly, it deprives plaintiffs in these cases of benefits available to others.
In Primes, Appellee v. Tyler, Appellant, 43 Ohio St.2d 195, 331 N.E.2d 723, the Supreme Court held the Guest Statute unconstitutional. The opinion includes the following:
"Since '[t]he guest statute [is] intended to shield from liability' a certain 'category of persons' ( Thomas v. Herron [1969], 20 Ohio St.2d 62, 64, 253 N.E.2d 772, 774) [49 O.O.2d 344, 345], we look first at the category thus established and its compatibility with equal protection guarantees.
'. . . We do not inquire whether this statute is wise or desirable . . Misguided laws may nonetheless be constitutional.' James v. Strange (1972), 407 U.S. 128, 133, 92 S.Ct. 2027, 2031, 32 L.Ed.2d 600. However, '. . . the mere recitation of a benign [statutory] purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.' (Emphasis added.) Weinberger v. Wiesenfeld, supra [ 420 U.S. 636] at page 648, 95 S.Ct. [1225] at page 1233, 43 L.Ed.2d 514, at page 525.
Under 'traditional' equal protection analysis, it was required that a statutory classification be 'shown to be necessary to promote a compelling governmental interest' ( Shapiro v. Thompson [1969], 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600) when it violated a 'fundamental' interest ( Belle Terre v. Boraas [1974], 416 U.S. 1, 7, 94 S.Ct. 1536, 39 L.Ed.2d 797), or was based upon a trait which rendered it 'suspect' ( San Antonio Independent School [199] Dist. v. Rodriguez [1973], 411 U.S. 1, 61, 93 S.Ct. 1278, 36 L.Ed.2d 16. Justice Stewart, concurring). Otherwise, the classification would be upheld if there existed any conceivable set of facts under which the classification rationally furthered a legitimate legislative objective. McGowan v. Maryland (1961), 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 [17 O.O.2d 151].
However, '[I]n all equal protection cases . . . the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.' Police Dept. of Chicago v. Mosley (1972), 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212.
Recognizing that the arbitrary imposition of disabilities '". . . is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing"' ( Jimenez v. Weinberger [1974], 417 U.S. 628, 632, 94 S.Ct. 2496, 2499, 41 L.Ed.2d 363), Chief Justice Burger states that "'. . . the Equal Protection Clause does enable us to strike down discriminatory law . . . where . the classification is justified by no legitimate state interest, compelling or otherwise." [ Weber v. Aetna Casualty Surety Co. (1972),] 406 U.S. [164], at 175-176, 92 S.Ct. 1400, 31 L.Ed.2d 768.' Ibid.
There is no satisfactory reason for this separate and unequal treatment. There obviously is "no compelling governmental interest" unless it be argued that any segment of the public in financial distress be at least partly relieved of financial accountability for its negligence. To articulate the requirement is to demonstrate its absurdity, for at one time or another every type of profession or business undergoes difficult times, and it is not the business of government to manipulate the law so as to provide succor to one class, the medical, by depriving another, the malpracticed patients, of the equal protection mandated by the constitution. Even remaining within the area of the professions, it is notable that the special consideration given to the medical profession by these statutes is not given to lawyers or dentists or others who are subject to malpractice suits.
Additionally, assuming a valid legislative purpose to enact laws relating to protection of the public's health, this legislation may be counter-productive. The extending of special litigation benefits to the medical profession certainly cannot be considered as relating to protection of the public health. On the contrary, the quality of health care may actually decline. To the extent that in tort actions of the malpractice type if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim.
Courts, of course, may not invalidate legislation merely because it is perceived as unwise. Here there is a trans gression of a basic constitutional principle forbidding unequal and special treatment for a class with no general beneficent reason apparent.
[9, 10] As indicated above, it is also contended that the malpractice act should not apply to the instant cases in that there is no provision therein for the act to be retroactive — regardless of whether such a provision could be constitutionally valid. We heretofore have held that it could not be constitutionally valid. The law with reference to the applicability of any act which affects substantive rights as distinguished from procedural rights is that such statute may not be applied retroactively. This is the general law. Statutes involved herein do affect substantive rights. There can be no question about this, particularly with reference to R.C. Section 2307.43, which attempts to limit the amount of compensatory damages in medical claim actions only.
In the case of Jones et al. v. State Board of Medicine, Case No. 55527, 4th Judicial District, State of Idaho, the Court held that a statute attempting to limit the amount of damages recoverable in a malpractice action was unconstitutional.
The question of retroactivity with reference to the malpractice act has heretofore been considered and ruled upon in Young v. Alberts, Ohio Com.Pl., 342 N.E.2d 700, 73 O.O.2d 32. The syllabus contained in the O.O. citation reads as follows:
"In view of R.C. §§ 1.48 and 1.58, Art. 11, § 28 of the Ohio Constitution and the silence of the Act itself, the Ohio Malpractice Act (Am. Sub. H.B. No. 682) will not be held to apply retrospectively."
The Court said at page 701, 73 O.O.2d at page 33:
"This is not a question of whether the General Assembly could, under the Ohio Constitution (and particularly Section 28 of Article 11), have made the requirements of the Ohio Malpractice Act retroactive, because of the General Assembly did not even attempt to do so. .
"(1) R.C. § 1.48 states in full:
'A statute is presumed to be prospective in its operation unless expressly made retrospective.'
"As noted, there is nothing in the Act which makes any of its provisions retrospective; and
"(2) R.C. § 1.58 reads in part as follows:
'(A) The reenactment, amendment, or repeal of a statute does not * * *:
'(1) Affect the prior operation of the statute or any prior action taken there-under;
And, at page 701, 73 O.O.2d at page 34:
'(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded or incurred thereunder;
'(4) Affect any * * * proceeding, or remedy in respect of any such privilege, obligation, liability * * * and the * * * proceeding, or remedy may be instituted, continued or enforced * * * as if the statute had not been repealed or amended.' (Emphasis added.)
"While the provisions for arbitration of medical claims and for limitation of recoverable damages are new enactments and not reenactments or amendments, nevertheless these provisions of R.C. § 1.58 supplement and reenforce the provisions of R.C. § 1.48 as to the prospective effect of legislation; and
"(4) If it were to be held that the limitation of the amount recoverable as general damages were retrospective in effect, this would change a substantive right and thus render this provision of the Act unconstitutional; . . ."
It is obvious that the above opinion is well founded in law.
It is, therefore, the holding of the Court in the within cases that:
(1) The provisions of the new Medical Malpractice Act do not apply retrospectively but insofar as any sections are constitutionally valid, they apply only to causes of action that arose subsequent to July 28, 1975.
(2) R.C. Section 2307.42 is violative of Article 4, Section 5(B) and Article 1, Section 2 of the Ohio Constitution and the Fourteenth Amendment of the Constitution of the United States; R.C. Sections 2305.27 and 2307.42 are violative of the equal protection clause contained in the Fourteenth Amendment of the United States Constitution and in Article 1, Section 2 of the Ohio Constitution.
For the reasons contained in the within Memorandum of Opinion, the motions to dismiss are overruled.