Opposition Brief — Smith v. Botsfordford General General Hospital Hospital (No. 05-1086)

3

of trial was failure-to-stabilize which, under EMTALA, requires

gencrally that a plaintiff present evidence that the patient had

an emergency medical condition which was known to the

hospital and that condition was not stabilized before the patient

was transferred. Multiple medical practitioners, medical experts,

and firsthand witnesses testified at the time ofa jury trial which

took place in April, 2003, presided over by the Honorable Avern

Cohn of the Eastern District of Michigan, Southern Division.

The jury determined that Botsford failed to stabilize Mr. Smith’s

emergency medical condition before he was transferred, that

the estate of Mr. Smith suffered damages as a direct result of

this failure, and that economic damages in the amount of

$35,000.00 and noneconomic damages in the amount of

$5.0 million should be awarded to Petitioner. The jury’s verdict

was reduced to a judgment dated May 1, 2003.

Botsford appealed by right to the United States Court of

Appeals for the Sixth Circuit, which affirmed in part, reversed

in part, and remanded for a reduction of the $5.0 million

noneconomic damages award to the damages cap limit of

$359,000, in accordance with Michigan law, M.C.L. 600.1483.

Smith v. Botsford General Hospital, 419 F.3d 513, 521 (6" Cir.

2005).

Material Facts

Trial. When the ambulance brought Kelly Smith to

Botsford on October 10, 1998, he was 33 years old and weighed

500-600 pounds. After consuming alcohol and ingesting cocaine,

Mr. Smith crashed and rolled his car, and broke his left leg.

(6" Cir. Jt. Apx 537-544, 550-551). When he arrived at Botsford

around 3:00 a.m., he was given a complete physical examination

by the Emergency Room Department Staff (Apx. 988; Apx. 715-

793), including assessment and treatment by the attending

physician, Dr. Frank Schell, a board certified emergency medical

specialist (Apx. 794-824; Apx. 918-948; Apx. 950-1113;

Apx. 1115-1133: Apx. 647-710).

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Mr. Smith was diagnosed with an open comminuted left

femur fracture.? (Apx. 584). Mr. Smith’s fracture was stabilized

with a variety of modalities (Apx. 1059-1060), and Dr. Schell

made the decision in conjunction with the treatment team that

Mr. Smith should be transferred to the University of Michigan

Hospital (a level 1 trauma center) (Apx. 557; Apx 862). This

decision was influenced by Mr. Smith’s size, Botsford’s limited

capacity to care for someone of Mr. Smith’s size — specifically,

the hospital did not have CT equipment which would

accommodate Mr. Smith — and the more extensive facilities

available at the University of Michigan (Apx. 1056, 1071-1074).

Mr. Smith was placed in the ambulance for transfer

(Apx. 515; Apx. 628; Apx. 1071-1074), and died approximately

twenty-one minutes into the transfer. An autopsy report revealed

that Mr. Smith died from extensive blood loss (Apx. 644-645).

Mr. Smith was single with no children (Apx. 1157-1165).

His estate was represented by his adult sister. She brought suit

against Botsford, alleging it violated subsection (b) of EMTALA

by failing to stabilize Mr. Smith’s emergency medical condition,

a fractured femur, and by transferring Mr. Smith while his

emergency medical condition was not yet stabilized. (Apx. 223-

224). According to Petitioner, Mr. Smith demonstrated classic

signs of hypovolemic shock and he was not “stabilized” within

the meaning of EMTALA when he was placed in the ambulance,

as he was actually bleeding (Apx. 223-224).

This case was tried for fifteen days in April, 2003. Twenty-

two witnesses testified at the time of trial, including twelve

physicians (most of whom offered expert medical testimony),

one paramedic, and one nurse (Apx. 81). There was massive

disagreement among the medical practitioners and experts on

2. An open comminuted fracture is a break of the bone which

pierces the skin and has multiple bone fragments in multiple locations

(Apx. 570).

5

the core medical issues, including the state and significance of

Mr. Smith’s medical presentation, the appropriate medical

decisions to be made, and the resulting consequences to the

decedent.’

After hearing testimony, the jury was asked to sift through

the facts and opinions and determine the propriety of the medical

decision-making at Botsford. The jury was instructed that:

(1) the duty to-stabilize does not arise until the hospital diagnoses

- an emergency medical condition; (2) the question of whether

Mr. Smith was stabilized prior to transfer is to be judged

from the standpoint of a reasonable, objective observer; and (3)

“to stabilize” is to provide such medical treatment of the

condition as may be necessary to “assure within reasonable

medical probability that no material deterioration of the

condition is likely to result from or occur during the transfer of

the individual from a facility.” (Apx. 1238-1241). The jury found

that Botsford failed to stabilize Mr. Smith’s emergency medical

condition before he was transferred, that the estate suffered

damages as a direct result of this failure, and that the estate was

entitled to economic damages in the amount of $35,000.00, and

noneconomic damages in the amount of $5.0 million (Apx. 232;

Apx. 1242-1243). The trial court subsequently denied Botsford’s

post-trial motions, including a request that Michigan’s damages

cap be applied and the $5.0 million noneconomic damages award

be reduced to Michigan’s statutory limit, $359,000. (Apx. 64).

Appeal. On Botsford’s appeal, the Sixth Circuit held that

the Michigan malpractice cap, M.C.L. 600.1483, required that

the noneconomic damages awarded to Petitioner be reduced to

$359,000. In its unanimous published opinion, the Sixth Circuit

3. Given the medical complexities of the case and the number of

medical practitioners and experts who testified, the jury was given a

Medical Glossary to better understand the medical issues, including the

definitions of hemorrhagic, hypovolemic/hypovolemia, shock/

hypovolemic shock, morbid obesity, peripheral pulses, pulse oximeter.

blood pressure, pulse, and vital signs (Apx. 101).

6

rejected Petitioner’s initial argument that EMTALA does not

incorporate state law damages caps under any circumstances.‘

419 F.3d at 517. The Sixth Circuit then analyzed the narrow

question of whether Michigan’s specific damages cap applies

to an EMTALA failure-to-stabilize ciaim. /d. at 518. As did the

Fourth Circuit in Power v. Arlington Hospital Association,

42 F.3d 851, 860-862 (4" Cir. 1994), the Sixth Circuit considered

whether Petitioner’s EMTALA claim would be deemed a

malpractice claim under the relevant state law. Jd. The Sixth

Circuit looked to Bryant v. Oakpointe Villa Nursing Center,

471 Mich. 411; 684 N.W.2d 864, 869 (2004), in which the

Michigan Supreme Court had recently articulated the factors

for determining whether a claim is one for medical malpractice:

“(1) whether the claim pertains to an action that occurred within

the course of a professional relationship; and (2) whether the

claim raises questions of medical judgment beyond the realm

of common knowledge and experience.” 419 F.3d at 518. The

Sixth Circuit concluded that Michigan’s damage cap applies to

this EMTALA failure-to-stabilize claim because the claim would

constitute a malpractice action under Michigan law. “Like the

claims Brvant deemed malpractice actions, compliance with

EMTALA’s stabilization requirements entails medical judgment

(assuring ‘within reasonable medical probability, that no

material deterioration of the condition is likely,’ 42 U.S.C.

§ 1395dd(e)(3)(A)) ... understood ... only through expert

testimony.” 419 F.3d at 519 (emphasis original). The Sixth

Circuit was aware that Petitioner essentially conceded that her

action was one for medical malpractice because she had filed a

medical malpractice action against Botsford in a Michigan state

court based on the same factual allegations. (Apx. 305, 312-

318). The Sixth Circuit concluded that since Petitioner

questioned Botsford’s medical decision-making through the use

of expert testimony, Bryant, Michigan’s statutory damages cap

for medical malpractice actions applied to this failure-to stabilize

EMTALA claim.

4. Petitioner does not seek review of this determination.

7

The Sixth Circuit next rejected Petitioner’s Seventh

Amendment challenge and adopted the reasoning of the Fourth

Circuit in Boyd v. Bulala, 877 F.2d 1191, 1196 (4" Cir. 1989)

(“If a legislature may completely abolish a cause of action

without violating the right of trial by jury, we think it permissibly

may limit damages recoverable for a cause of action as well.”’).

419 F.3d at 513.

The Sixth Circuit further rejected Petitioner’s equal

protection challenge. The court noted that a Michigan appellate

_court already had found that Michigan’s interest in controlling

increases in healthcare costs is rationally related to its creation

of a limitation on fioneconomic damages to reduce the liability

of medical care providers. 419 F.3d at 520, quoting Zdrojewski

v. Murphy, 254 Mich. App. 50; 657 N.W.2d 721, 739 (2002).

The Sixth Circuit subsequently denied Petitioner’s motion

for rehearing and rehearing en banc through an order dated

November 22, 2005. 419 F.3d at 513.

REASONS FOR DENYING THE PETITION

Petitioner’s request for relief meets none of the invoked

tests set forth in this Court’s Rule 10, “Considerations Governing

Review of Certiorari.” The Sixth Circuit’s decision does not

conflict with the decision of another court of appeals on either

of the issues presented. The Court of Appeals for the Sixth and

Fourth Circuits agree that a state law damages cap applies to an

EMTALA failure-to-stabilize case. No court of appeals decision,

EMTALA or otherwise, holds that application of a state law

damages cap violates either the right to jury trial of the Seventh

Amendment, or the equal protection clause of the United States

Constitution.

The Court of Appeals here has not decided an important

question of federal law which should be settled by this Court,

or decided a federal question in a way that conflicts with

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applicable decisions of this Court. The Supreme Court does

not have a stake in the correctness of federal decisions which

are premises on resolution of underlying state-by-state decisions

(in this case, Michigan’s specific damages cap). Lawrence v.

Chater, 516 U.S. 163, 177 (1996) (REHNQUIST, C.J.,

concurring and dissenting in part).

Petitioner’s positions on the merits also lack merit,

discussed next.

I. Michigan’s cap on noneconomic medical malpractice

damages applies to this failure-to-stabilize EMTALA

judgment, pursuant to Congress’ allowance of only

“damages available for personal injury under the law

of the State,” 42 U.S.C. § 1395dd(d)(2)(A).

Damages under EMTALA are limited to those available

under the applicable state law:

“Any individual who suffers personal harm as a

direct result of a participating hospital’s violation

of a requirement of this section may, in a civil action

against the participating hospital, obtain those

damages available for personal injury under the law

of State in which the hospital is located, and such

equitable relief as is appropriate.”

42 U.S.C. § 1395dd(d)(2)(1) (emphasis supplied).

In Michigan, recovery of noneconomic damages in a

personal injury verdict based on allegations of medical

malpractice is limited by M.C.L. 600.1483:

“In an action for damages alleging medical

malpractice by or against a person or party, the total

amount of damages for noneconomic loss

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recoverable by all plaintiffs, resulting from the

negligence of all defendants, shall not exceed

$280,000.00... .”

The monetary limitation is adjusted yearly and was $359,000.00

in 2003.

Petitioner argues that Michigan’s particular state law

damages cap, M.C.L. 600.1483, is inapplicable to EMTALA

actions. Ignoring the wealth of case law that instructs the Court

to analyze the nature and character of the EMTALA action in

question, Petitioner assumes that all EMTALA actions are

premised upon patient dumping, thus involve questions of strict

liability, only, and therefore do not constitute “medical

malpractice” actions to which Michigan’s state law damages

cap would admittedly apply. In so framing the question,

Petitioner avoids addressing the fundamental question presented:

whether Michigan’s damages cap applies to this EMTALA

action, premised on the failure to stabilize the patient.

Section § 1483 is not limited to “medical malpractice”

actions, but applies “in an action for damages alleging medical

malpractice,” which includes any action challenging the exercise

of medical judgment in the course of a professional relationship.

Bryant v. Oakpointe Villa Nursing Home, 471 Mich. 411;

684 N.W.2d 864 (2004); Dorris v. Detroit Osteopathic Hosp.

Corp., 460 Mich. 26, 45-46; 594 N.W.2d 455 (1999). The

Michigan courts have not limited such actions to those involving

only the “full panoply of the physician’s typical responsibilities

to diagnosis and treat” a patient for medical conditions. Dyer v.

Trachtman, 470 Mich. 45, 50-51; 679 N.W.2d 311 (2004).°

5. Michigan law is also clear that Michigan state law damages

cap applies to a wrongful death case grounded in allegations of medical

malpractice. Jenkins v. Patel, 471 Mich. 158; 684 N.W.2d 346 (2004).

6. In Dyer, the Michigan Supreme Court held that an IME physician

has a limited physician-patient relationship, that the physician's alleged

(Cont'd)

10

When the complained-of conduct involves medical decisions,

the allegations “raise questions involving medical judgment,”

and “fit within a medical malpractice cause of action.”

Dyer at 54.’

Petitioner’s EMTALA complaint raises questions of

medical judgment by asserting an inappropriate transfer under

EMTALA for: (A) failure to stabilize the Petitioner’s decedent;

(B) failure to inform the legally responsible persons of

obligations under EMTALA of the risks of transfer; (C) failure

to provide medical treatment; (D) failure to call for and utilize

appropriate transfer equipment to “reduce the risk to Petitioner’s

Decedent,”’; and (E) failure to reassess the patient at the time of

discharge to ensure that he was stabilized and thus an appropriate

candidate for transfer. Paragraph 22 summarizes:

“The Defendants [sic] failed to provide the medical

treatment within its capacity to minimize the risk of

transfer to Plaintiff's Decedent’s health.”

Apx. 34.

EMTALA’s screening, treatment, and transfer requirements

further demonstrate that a failure to stabilize challenge involves

(Cont'd)

negligence sounds in medical malpractice, and that the physician was

entitled to medical malpractice tort reform measures.

7. Plaintiff argues that the standard of care in a medical case is

not identical to the standard of care imposed by EMTALA, and therefore

Michigan’s damages cap, limited to an “action alleging medical

malpractice,” is inapplicable. This is flatly incorrect because the

Michigan Supreme Court has recognized that even if the relationship

between the patient and the physician is nontraditional and does not

involve the “full panoply of the physician's typical responsibilities to

treat and diagnose,” the case still is one for medical malpractice. Dver

v. Trachtman, D.O., 470 Mich. at 50; 679 N.W.2d at 314-315 (2004).

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medical decisions and medical judgment.*® Sections

1395dd(b)(1)(A) and (B) require “such further medical

examination and such treatment as may be required to stabilize

the medical condition” before discharge or to transfer the person

to another medical facility in accordance with EMTALA

standards. “To stabilize” with respect to an emergency condition

requires the provision of “medical treatment” to assure

“no material deterioration,” to be determined by the standard of

“reasonable medical probability.” § 1395dd(e)(3)(A).°

Determination of an “emergency medical condition” likewise

involves medical standards: “sufficient severity” and reasonable

expectation. § 1395dd(e)(1)(A).

These statutory requirements involve medical decision-

making and the exercise of medical judgment required

“to provide such further medical examination and treatment as

was required to medically treat an emergency medical

condition.” Goodwin v. Memorial Medical Ctr, 25 P.3d 273,

287 (N.M. 2001).'°

8. The enforcement provisions of EMTALA, referencing “medical

opinions” and “medical ... quality of care,” also demonstrate that

medical decisions and medical judgment challenges are the heart of

certain EMTALA actions. See addendum for 42 C.F.R. 489.2(h)(1)(v).

9. The standard of “reasonable medical probability” is an objective

one, inextricably interwoven with the professional standard of care

involved for rendering medical treatment. Barris v. County of Los

Angeles, 972 P.2d 966, 974 (Cal. 1999).

10. This case is distinguishable from those in which an EMTALA

claim does not involve medical decisions and the plaintiff does not

complain of the exercise of medical judgment. EMTALA was enacted

because Congress was concerned that hospitals might be “dumping”

patients with emergency medical conditions because they lacked

insurance or other means to pay their medical bills.

See generally Cleland v. Bronson Health Care Group, Inc., 917 F.2d

266, 268 (6" Cir. 1990). As a result, a court might encounter a case

(Cont'd)

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Case law supports application of Michigan’s damages cap

to this failure-to-stabilize EMTALA suit. Power v. Arlington

Hosp. Assoc., 42 F.3d at 863, counsels courts to look to the

substance of an EMTALA claim when deciding which state law

remedies apply:

“Courts must look at the underlying conduct

challenged in the EMTALA case and the legal basis

for the challenge to determine whether such a claim,

if brought under state law, would be encompassed

within the state’s personal injury damage limitation,

the medical malpractice damage cap, both or

neither.”

Other courts have reasoned that, although not identical toa

state malpractice claim because it includes additional

requirements, an EMTALA claim for failure-to-stabilize is

premised on medical standards of care:

“A plaintiff must prove that the hospital did not,

within its available staff and facilities, provide a

patient known to be suffering from an emergency

medical condition with medical treatment necessary

to assure, within reasonable medical probability, that

no deterioration of the condition would likely occur.

The standard of ‘reasonable medical probability’ is

an objective one, inextricably interwoven with the

professional standard for rendering medical

treatment.

(Cont'd)

where the only salient facts are a participating hospital’s decision to

discharge or transfer because the patient cannot pay the bill

(i.e., the patient is not insured). This is not such a case.

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The trier of fact must, under EMTALA as in a

medical negligence claim, consider the prevailing

medical standards and relevant expert medical

testimony to determine whether material

deterioration of the patient’s condition was

reasonably likely to occur.”

Barris, 927 P.2d at 974-975 (emphasis supplied). Similarly, in

Goodwin the court found that an EMTALA violation premised

on failure-to-stabilize a subdural hematoma was essentially a

claim that the hospital was required. and did not “provide such

further medical examination and treatment as was required to

medically treat an emergency medical condition.” 25 P.3d at

287.

Recognizing the difference between failure-to-stabilize and

other EMTALA claims, Burditt v. U.S. Dept. of Health & Human

Services, 934 F.2d 1362, 1369 (S" Cir. 1991) explained that the

stabilization provision of EMTALA, more than the screening,

requires the hospital to prevent the material deterioration of each

patient’s condition according to the capabilities of the particular

hospital. This involves medical decision-making and the

exercise of medical judgment.

As demonstrated in Barris, Goodwin, and Burditt, a failure-

to-stabilize case is based on a professional standard of care.

The underlying conduct complained of is in the nature of medical

malpractice, which triggers Michigan’s medical malpractice

damages cap. Botsford’s position is consistent with the holdings

in cases finding similar state damages caps applicable to an

EMTALA violation. See Goodwin (New Mexico cap relating

to “all past and future medically and medically — related expenses

applied to inappropriate medical screening/wrongful discharge

EMTALA claims”); Barris (California’s damages cap applicable

to action for injury against health care provider “based on

professional negligence” found applicable to an EMTALA

failure-to-stabilize claim); Power (Virginia’s cap “in an action

14

for malpractice” against healthcare provider found applicable

to EMTALA claim of inappropriate medical screening); Reid v.

Indianapolis Osteopathic Medical Center, 709 F.Supp. 853

(S.D. Ind. 1989) (Indiana’s damages cap for injury or death of a

patient found applicable to EMTALA violations of failure to

stabilize and improper transfer).

Petitioner effectively conceded that- this EMTALA case

alleges medical malpractice. Petitioner filed a complaint against

Botsford in the state court based on the same facts as the

EMTALA complaint (Apx. 305). In Smith v. Botsford General

Hosp., et al. (Wayne County Circuit Court No. 00-039336-NH),

Petitioner asserted that Botsford and the relevant physicians were

liable for “medical malpractice” (Count 1) and breached the

standard of care for trauma surgeons and trauma surgery

residence in a same or similar community (Apx. 312-318).

Under the Power test, there is no doubt that the underlying

conduct in this action is medical malpractice, which is subject

to Michigan’s medical malpractice damages cap."!

Petitioner cannot escape her EMTALA allegations which

are inextricably tied to the provision of health care.

“Stabilization” relates directly to the provision of health care.

“It is the treatment needed to prevent ‘the threatening and severe

consequences’ of the patient’s emergency medical condition.”

Valencia v. St. Francis Hospital and Health Center, 2004 W.L.

11. The district court distinguished Power v. Arlington Hosp. Ass'n,

42 F.3d 841 (4" Cir. 1994), on the grounds that the cap in that case was

not limited, as is the Michigan cap at issue, to an action for “medical

malpractice,” which requires that a plaintiff show a professional standard

of care was breached (Apx 211-214). Virginia has a broad medical

malpractice cap, which includes not only traditional medical malpractice

claims, but also claims of battery and sexual misconduct by a physician,

42 F.3d at 861, but that difference is immaterial to the facts of this case.

This EMTALA claim for failure to stabilize is based on professional

negligence, which is subject to both Virginia’s and Michigan's damages

caps.

15

963712 (S.D. Ind., March 1, 2004), p. 7. Taking Petitioner’s

allegations as true, it is impossible to see how such allegations,

if established, would lead to injury absent some act involving

the provision of health care.

Again, this is not a case which was premised upon a set

policy of the hospital turning away indigent patient because they

lacked medical insurance. Rather, Petitioner acknowledges in

her complaint that the decedent was seen by the staff at

Botsford’s emergency department, and alleged that Mr. Smith’s

death arose from the failure to provide adequate health care.

Under the test enunciated in Power, supra, if these allegations

were brought under state law (which actually occurred in this

case when Petitioner filed her state law action against Botsford),

they would be considered medical malpractice in nature.

Petitioner repeatedly asserts that an EMTALA case is

“not a medical malpractice action” and is instead a “strict

liability” action, to which Michigan’s damages cap would not

apply. This argument is misplaced on the law and on the facts

of this case. Whereas liability under EMTALA is established

by statute, Congress mandated that the damages be determined

by the incorporated state law. In addition, a failure-to-stabilize

theory under EMTALA does not constitute strict liability.

Summers v. Baptist Medical Ctr, Arkadelphia, 9\ F.3d 1132,

1140 (8" Cir. 1996) (because of the actual knowledge limitation,

the stabilization provision, unlike the screening provision, does

not impose strict liability). Barris, 972 P.2d at 972 (EMTALA

imposes a limited duty of medical treatment). There may be

cases in which EMTALA liability is premised solely upon a

hospital’s decision to discharge or transfer because the patient

cannot pay the bill (i.e. literal “patient dumping”). EMTALA

was enacted in part to deter such situations. Cleland v. Bronson

Health Care Group, Inc., 917 F.2d 266, 268 (6" Cir. 1990).

This is not such a case, As demonstrated by the testimony

presented in trial, the jury in this case — as it would in a medical

negligence case - considered the prevailing medical standards

16

and relevant expert medical testimony to determine whether a

material deterioration of Mr. Smith’s condition was reasonably

likely to occur. This is antithetical to strict liability, as noted by

the Court in Barris, 972 P.2d at 975:

“{A] stabilization claim under EMTALA is based

on whether the hospital, within the staff and facilities

available to it, provided medical treatment necessary

to assure ‘within medical probability’ that no

material deterioration of a patient’s condition would

occur during transfer to another facility. Strict

liability, by contrast, would automatically impose

responsibility for an injury to the patient, regardless

of the treatment given. Nor does EMTALA require

proof of a hospital’s intentional refusal of care e.g.,

based on a patient’s inability to pay or other bad

“faith motive.”

(Emphasis supplied). See also and compare and contrast to

Bryant, 471 Mich. at 425-426 (assertion of “strict liability” in a

medical setting consists of allegation that defendant failed to

provide an accident-free environment, which is different from

an assertion that a breach of duty caused injury to the plaintiff).

Petitioner argues that Michigan’s medical malpractice

damages cap is inapplicable because Congress limited recovery

of individual plaintiffs to “those damages available for personal

injury under the law of the State.” 42 U.S.C. § 1395dd(d)(2)(A)

(emphasis supplied). “Personal injury” refers to actions in tort

rather than another type of civil action (Black's Law Dictionary,

p. 707(4" ed.) (1979), and thus includes those alleging medical

malpractice. In states such as Michigan, which restrict recovery

in actions alleging medical malpractice, the amount of damages

that would be “available” for such a personal injury claim against

a health care provider would be only those damages available

within the damages cap. See Reid v. Indianapolis Osteopathic

17

Medical Hosp., Inc., 709 F.Supp. 853, 855-856 (S.D. Ind. 1989).

There is no need for Michigan’s damages cap to employ the

broader “personal injury” definition when the allegations and

proofs of this case fits squarely into the “in an action alleging

medical malpractice” language of M.C.L. 600.1483.

Il. Application of Michigan’s cap on noneconomic medical

malpractice damages does not violate the Seventh

Amendment to the United States Constitution.

The first step in the constitutional analysis is to identify

the scope of the right as enumerated in the Federal Constitution.

The Seventh Amendment to the United States Constitution

provides that “in Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by jury, shall be

otherwise reexamined in any Court of the United States, than

according to the rules of the common law.” Petitioner contends

that M.C.L. 600.1483 unconstitutionally infringes the right of

trial by jury because it deprives Petitioner of certain decisions

made by the jury.

It is by now axiomatic that the “Constitution does not forbid

the creation of new rights, or the abolition of old ones recognized

by the common law, to attain a permissible legislative object.”

Duke Power Co. v. Carolina Envtl. Study Group, Inc. 438 U.S.

59, 88 n. 32 (1978), quoting Silver v. Silver, 280 U.S. 117, 122

(1929). A legislature’s outright abolition of a cause of action

would not violate the Seventh Amendment. Mountain Timber

Co. v. Washington, 243 U.S. 219, 235 (1917); Dimond v. District

of Columbia, 792 F.2d 179, 190 n. 7 (D.C. Cir. 1986). If a

legislature may completely abolish a cause of action without

violating the right of trial by jury, it may permissibly limit

damages recoverable for a cause of action as well. Cf; Dimond,

792 F.2d at 190 n. 7.

° oe

Petitioner presupposes that the right to trial by jury includes

two components: (1) the right of the jury to determine the facts

with respect to the amount of damages sustained; and (2) the

right of the jury to dictate the legal consequences of its factual

determination. It simply does not. The function of the jury

extends solely to findings of fact and not to questions of law or

public policy. Tull v. United States, 482 U.S. 412; 107 S. Ct.

1831; 95 L. Ed. 2d 365 (1987).

In Tull, this Court noted that nothing in the Seventh

Amendment suggests that the right to a jury trial extends to the

remedy phase of a civil trial. The 7iu// Court reasoned that the

determination of the remedy in a civil trial could not be said to

involve the substance of a common law right to a trial by jury

nor a fundamental element of a jury trial. /d. at 426. Justice

Stevens noted in his concurrence to Gasperini v. Center for

Humanities, 518 U.S. 415; 116 S. Ct. 2211, 2227; 135 L. Ed.

2d 659 (1996) that:

“It is well settled that jury verdicts are not binding

on either trial judges or appellate courts if they are

unauthorized by law. A verdict may be insupportable

as a matter of law either because of deficiencies in

the evidence or because an award of damages is

larger than permitted by law.”

(Emphasis supplied.)

When examining the Michigan Constitution right to jury

trial,'* the Michigan Supreme Court rejected a similar argument

and found that Michigan’s rental car damages cap does not

offend the constitutional right to jury “because the amount the

plaintiff actually receives was never within those things a jury

12. “The right of trial by jury shall remain, but shall be waived in

all civil cases unless demanded by one of the parties in the manner

prescribed by law.” Michigan Const. 1963, art. 1 § 14.

19

can decide.” Phillips v. Mirac, Inc., 470 Mich. 415, 429-430;

685 N.W.2d 174 (2004). The Phillips Court reasoned:

“{d]amage caps are constitutional in causes of action springing

out of the common-law because the Legislature has the power

under our Constitution to abolish or modify non-vested,

common-law rights and remedies.” In Phillips, the Court

explained that the Michigan Legislature’s restriction on a

defendant’s liability through the use of a damages cap only limits

the legal consequences of the jury’s finding regarding liability,

and thus a plaintiff’s right to jury trial is not implicated:

“Like the congressional imposed civil penalties

discussed in Tull v. United States, 481 U.S. 412, 426

(1987), the Michigan Legislature’s limits on

defendant’s liability do not involve the ‘substance

of a common-law right to a trial by jury,” or a

‘fundamental element of a jury trial.’ (Citations

deleted). Those are things that are not under the

umbrella of the right. In other words, M.C.L.

257.401(3) only limits the /egal consequences of the

jury’s finding regarding the liability. Plaintiff's right

to a jury trial is not implicated. She has had a jury

trial and the jury determined the facts of her case.

The jury’s function is complete. It is up to the Court

to determine the legal effect of those findings,

whether it be that her damages are capped, reduced,

increased, tripled, reduced to present value, or

completely unavailable.”

Phillips, 470 Mich. at 431 (emphasis original).

In Murphy v. Edmonds, 325 Md. 342; 601 A.2d 102 (1992),

plaintiffs claimed that a $350,000 cap on noneconomic damages

in personal injury actions violated their right to a jury trial under

Maryland’s Declaration of Rights because it interfered with the

jury’s ability properly to determine damages and with the jury’s

20

exclusive province in determining factual issues. The Maryland

Court of Appeals disagreed, stating:

“T]he jury trial right in civil cases relates to ‘issues

of fact’ in legal actions. It does not extend to issues

of law, equitable issues, or matters which historically

were resolved by the judge rather than by the jury.

* * *

Moreover, the constitutional right to a jury trial is

concerned with whether the court or the jury shall

decide those issues which are to be resolved in a

judicial proceeding.

Where, however, the [legislature] has provided that

a matter shall not be resolved in a judicial

proceeding, by legislatively abrogating or modifying

a cause of action, no question concerning the night

to a jury trial arises. Since, under such circumstances,

the matter will not be resolved in a judicial

proceeding, the question as to whether a judge or a

jury shall resolve the matter simply does not arise.”

Murphy, 601 A.2d at 371-72.

In Boyd v. Bulala, 877 F.2d 1191 (4" Cir. 1989), the Fourth

Circuit reversed the district court’s judgment that Virginia’s cap

on recovery in an action for medical malpractice

unconstitutionally denied plaintiffs their right to a jury trial.

The Fourth Circuit agreed with the district court that the role of

the jury is to determine the facts, but nonetheless upheld the

damage cap stating:

{I]t is not the role of the jury to determine the legal

consequences of its factual findings ... That is a

21

matter for legislature, and here, the Virginia

legislature has decided that as a matter of law

damages in excess of $750,000 are not relevant. In

doing so it has not violated the Seventh

Amendment.”

Boyd, 877 F.2d at 1196.

In Etheridge v. Medical Center Hospitals, 237 Va. 87; 376

S.E.2d 525 (1989), the Supreme Court of Virginia upheld a

statute limiting the amount of damages which may be received

in a medical malpractice action against a constitutional

challenge, reasoning “[a]lthough 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.”

Etheridge, 376 S.E.2d at 529.

In Franklin v. Mazda Motor Corp, 704 F.Supp. 1325 (D.Md.

1989), the Court held that “a legislature adopting a prospective

rule of law that limits a// claims for pain and suffering in a//

cases in not acting as a factfinder in a legal controversy ... .

The right of jury trials in cases at law is not impacted.” Franklin,

supra at p 1331 (emphasis supplied). See also Madison v. IBP.

Inc., 257 F.3d 780, 804 (8" Cir. 2001) where the Court explained:

“Congress created the Title VII cause of action and

has the power to set limits for recovery under it.

The statute does not violate the Seventh Amendment

because it does not impinge upon the jury’s

factfinding function. In applying a provision, a court

does not ‘reexamine’ the jury’s verdict or impose its

own factual determination as to what a proper award

might be. Rather, it implements the legislative policy

decision by reducing the amount recoverable to that

deemed to be a reasonable maximum by Congress.”

22

The Michigan Court of Appeals has specifically rejected a

right to jury trial constitutional challenge to M.C.L. 600.1483.

Zdrowjewski v. Murphy, M.D., 254 Mich.App. 50, 76-77; 657

N.W.2d 721 (2002) (court rejects plaintiff’s constitutional

argument that she had unfettered right to recover precisely what

the jury awarded; legislature has authority to limit remedies in

tort actions, and section 1483 neither impedes plaintiff’s ability

to present her case to a jury or the jury’s ability to determine the

factual extent of plaintiff’s damages).

These cases are consistent with this Court’s reasoning in

Dimick v. Schiedt, 293 U.S. 474, 485-86 (1935), that “the

controlling distinction between the power of the court and that

of the jury is that the former is the power to determine the law

and the latter to determine the facts.”

Petitioner relies upon the district court opinion Boyd v.

Bulala, 672 F.Supp. 915 (W.D. Va. 1987), rev'd 877 F.2d 1191

(4" Cir. 1989) for the proposition that a state law damages cap

violates the right to trial by jury under the Seventh Amendment.

In Boyd, however, the Fourth Circuit reversed this finding upon

reasoning that it is not the role of the jury to determine the legal

consequences of its factual findings, but rather a matter for the

legislature, as reflected in Virginia’s damages cap.'*

Petitioner contends application of Michigan’s damages cap

also violates the Reexamination Clause of the Seventh

Amendment (“no fact tried by a jury shall be otherwise

reexamined in any Court... .””). This argument is not preserved

for appellate review because it was not presented to the District

Court (Apx. 392-395), and it was not raised specifically before

13. The federal right to jury trial is analyzed no different then the

Michigan right to jury trial. Tull v. United States, 482 U.S. 412 (1987).

The Fourth Circuit endorsed Botsford’s view that the state appellate

court decisions analyzing the state’s own damages cap are persuasive

on challenges to federal constitutional provisions.

23

the Sixth Circuit. (See Petitioner’s App. Brief, pages 35-36).

Anschultz Land and Livestock Company, Inc. v. Union Pacific

Railroad Company, 820 F.2d 338, 344 n.5 (10" Cir. 1987)

(propounding new arguments on appeal undermines important

judicial values); Lyons v. Jefferson Bank & Trust, 994 F.2d 716,

721 (10" Cir. 1993) (“[t]he touchstone on this issue is that

‘vague, arguable references to [a] point in the district court

proceedings do not. . . preserve the issue on appeal””’).

If preserved, this issue nonetheless should not be reviewed

because Petitioner fails to identify a split in the circuits (indeed,

fails to identify a single supporting case in this context) and is

otherwise incorrect on the merits.

Petitioner admits that the only circuit court to address this

issue held against Petitioner’s position. In Davis v. Omitowoju,

883 F.2d 1155, 1161-1162 (3" Cir. 1989), the Third Circuit

reasoned that the Reexamination Clause is “primarily concerned

with actions by the courts and. . . does not restrict the power of

the Legislature . . . in enacting the malpractice damage cap at

issue ....” See also, Evans ex rel Kutch v. State of Alaska,

56 P.3d 1046, 1051, note 30 (Alas. 2002) (“[t]he decision to

place a cap on damages awarded is a policy choice and not a re-

examination of the factual question of damages determined by

the jury”). Petitioner does not contest that Congress specifically

incorporated state law remedies in EMTALA, and in doing so

allowed implementation of the policy behind Michigan’s

damages cap. Because applying Michigan’s cap to the damages

award in this case implements a legislature’s policy decision as

to the amount of allowable damages, rather than allowing

judicial reexamination of a verdict, application of the cap is

outside the scope of the Reexamination Clause.'*

14. Petitioner cites Lakin v. Senco Products, Inc., 987 P.2d 463,

471-473 (Or. 1999) as authority that a legislative cap on noneconomic

damages violates the state constitution’s reexamination clause.

(Cont'd)

24

Ill. Application of Michigan’s cap on noneconomic

medical malpractice damages does not violate the equal

protection clause of the United States Constitution.

The equal protection clause of the United States

Constitution provides that no person shall be denied the equal

protection of the law.'* It is well-established that the equal

protection guarantee is not a source of substantive rights or

liberties; rather, it is a measure of the Constitution’s tolerance

of government classification schemes. San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 58 (1973) (Stewart,

J., concurring).

In Fein v. Permanente Medical Group, 474 U.S. 892 (1985),

this Court refused to disturb the California Supreme Court’s

determination that a state medical malpractice damages cap does

not contravene the equa! protection clause of the Federal

Constitution. The state court acknowledged that the legislature

may expand or limit recoverable damages so long as the action

is rationally related to a state interest, and further found that the

damages cap was a rational response to the problem of rising

(Cont'd)

Lakin does not contain a reexamination issue, nor does Oregon’s

constitution contain a reexamination clause (“In all civil cases the right

of Trial by Jury shall remain inviolate).”

The Lakin rationale has been soundly criticized by several courts.

Evans ex rel Kutch v. State of Alaska, 56 P.3d 1046, 1051, note 30

(Alas. 2002); Gourley ex rel Gourley v. Nebraska Methodist Health

System, Inc., 663 N.W.2d 43, 75 (Neb. 2003); Kirkland vy. Blaine County

Medical Center, 4 P.3d 1115, 1120 (Idaho 2000).

15. The Michigan courts have held that the Michigan and federal

equal protection clauses offer similar protection and are coextensive.

Doe v. Dept. of Social Services, 439 Mich. 650, 670-671; 487 N.W.2d

166 (1992): Neal v. Oakwood Hosp. Corp., 226 Mich. 701, 716; 575

N.W.2d 68 (1997).

25

medical malpractice insurance costs. Similarly, this Court found

that the damages cap did not improperly discriminate between

medical malpractice plaintiffs and other tort plaintiffs, or within

the class of medical malpractice plaintiffs, by denying full

recovery to those with noneconomic damages exceeding the

cap amount. The Fein Court found that the California

Legislature’s decision to limit the application to medical

malpractice cases, and within those cases to those with large

noneconomic damages awards, was a rational response to

escalating malpractice insurance rates. For similar reasons, the

Michigan Court of Appeals has already determined that § 1483

is not violative of the federal equal protection clause.

Zdrowjewski, 254 Mich.App. at 80-81.'° See also Jenkins v.

Patel, 471 Mich. 158; 684 N.W.2d 346 (2004).

Petitioner resists this conclusion by arguing that

“intermediate scrutiny” applies. In Zdrowjewski, supra, the

Court refused to apply heightened scrutiny upon determining

that classification schemes created by various tort reform

legislation are social or economic legislation, subject to the

rational basis test. Zdrowjewski, 254 Mich.App. at 79-80.'’

See also Phillips, 470 Mich. at 433-434 (the claimed right to

have a jury assessment of damage, unmodified as a matter of

law, is subject to the rational basis test because the subject right

or legislation is social or economic in nature).

16. “By limiting at least one component of health care costs, the

noneconomic damages limitation is rationally related to its intended

purpose. Because the noneconomic damages cap of M.C.L. 600.1483

is rationally related to a legitimate governmental purpose, the statute

does not violate Petitioner’s right to equal protection.”

17. In Neal, supra, the Michigan Court of Appeals analyzed

Section 1483 under the rational basis test upon recognizing a

damages cap constitutes social or economic legislation, and does not

create an inherently suspect, or even suspect classification. 226 Mich.

App. at 717.

26

Finally, Petitioner argues that the damages cap violates equal

protection under the rational basis test because of the ceiling

imposed by the Michigan Legislature, namely $280,000.00, is

lower then ceilings applied to other damages caps in Michigan,

namely the product liability cap (at $500,000.00). Petitioner is

wrong on the facts because the limitation on damages for

noneconomic loss found at § 1483 is adjusted by the state

treasurer each year and, for the case in question, equals

$359,000.00. More fundamentally, Petitioner is asking this Court

to test the wisdom of the Michigan Legislature in setting the

precise noneconomic damages limitation. The rational basis test

does not involve the wisdom, need or appropriateness of

legislation. On the contrary, the Court examines the purpose

for which legislation was enacted, not its effects. Duke, supra,

438 U.S. at 83-84 (“that the accommodations struck may have

profound and far-reaching consequences ... provides all the

more reason for this Court to defer to the congressional judgment

unless it is demonstrably arbitrary or irrational.”).

CONCLUSION

For these reasons, the Petition for Writ of Certiorari should

be denied.

Respectfully submitted,

RosBert G. KAMENEC

PLunketr & Cooney, P.C.

Botsford General Hospital

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 901-4068

Counsel for Respondent