Sixth Circuit upholds Michigan's med-mal cap.

Michigan's cap on medical malpractice damages does not violate the rights to a jury trial or equal protection, the Sixth Circuit has ruled. The court applied the cap to a cause of action under the Emergency Medical Treatment and Active Labor Act (EMTALA). (Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6th Cir. 2005).)

EMTALA is a federal statute enacted to prevent hospitals from "dumping" patients onto other facilities without providing adequate treatment. It requires hospitals to stabilize a patient with an emergency medical condition before transferring him or her. A hospital must provide treatment necessary to ensure, "within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer."

Andrea Smith sued Botsford General Hospital for violating EMTALA by failing to stabilize her husband's condition before transporting him to another hospital. He had an open femur fracture when he arrived, and Botsford decided to transfer him due to its limited capacity to care for someone his size (about 600 pounds). He died of extensive blood loss while en route.

In district court, a jury awarded Smith economic and noneconomic damages, but Botsford appealed, saying the noneconomic damages should be reduced in accordance with Michigan's $359,000 cap on noneconomic damages in medical malpractice cases. A three-judge panel of the Sixth Circuit agreed with Botsford.

The plaintiff has filed a motion for rehearing en banc and, if it is denied, plans to appeal to the U.S. Supreme Court, said Marc Lipton of Southfield, Michigan, who represents Smith.

EMTALA says that "any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of [the act] may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located." The Sixth Circuit said the applicable state law includes the cap on med-mal damages.

But Geoffrey Fieger of Southfield, who also represents Smith, said the court applied the wrong state law. "The plain language of the statute says you follow personal injury law; it doesn't say you follow state medical malpractice law," he said. If the state had a cap on personal injury damages, it would apply, but Michigan doesn't have one, he added.

Med-mal actions look at what the medical provider does, but EMTALA looks at the condition of the patient and does not require that the standard of care be breached, Lipton said. "You can do everything by the standard of care, and yet the patient still could have been unstable for transfer," he said.

The court said that "malpractice" should be interpreted more broadly, with the defining element of a case being the need for experts. Judge Deborah Cook wrote for the court that "this EMTALA failure-to-stabilize claim would constitute a malpractice action under Michigan law" and that "compliance with EMTALA's stabilization requirements entails medical judgment" that is understood only through expert testimony.

Lipton noted that the court said Michigan's definition of malpractice "is broad enough to cover EMTALA, without understanding--frankly, without caring--that [an] EMTALA [claim], by universal law around the country, is not a malpractice action." He added, "They ignored all that and said, 'Since you need expert testimony, it would be considered a malpractice action, and, therefore, the cap would apply.'"

EMTALA was specifically intended to hold hospitals accountable in an area that state medical malpractice law does not cover, Fieger said. "It's really a strict liability statute." In Botsford, "we never had one standard-of-care question in the entire case. Nor did the jury decide whether the defendants were negligent. The sole issue was whether he had been stabilized prior to transfer," he said.

"The Sixth Circuit made complete short shrift of the constitutional issues," Lipton said. "This decision's constitutional analysis is boilerplate; it's done in a page."

The court cited a Fourth Circuit case holding that Virginia's cap on medical malpractice damages did not violate the Seventh Amendment. (Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989).) But that case "has been essentially repudiated by the U.S. Supreme Court in a 9-0 decision saying that it is not constitutional to have the jury decide what someone's damages are and then not be entitled to enter judgment on those damages," Lipton said. (Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).)

Robert Peck, president of the Center for Constitutional Litigation in Washington, D.C., agreed. "The Supreme Court has made clear that the Seventh Amendment prevents Congress from interfering with a jury's common law authority to determine damages," he said. "The Sixth Circuit ignored these recent U.S. Supreme Court teachings by relying entirely on an older Fourth Circuit decision."

Michigan's cap has not faced other challenges, Fieger noted. Caps may be more likely to be invalidated on state constitutional grounds, simply because state courts are more likely to do so than federal courts, he said.

Wisconsin's med-mal cap was struck down in July for violating the state constitution's equal protection provisions. (Allison Torres Burtka, Wisconsin Supreme Court Strikes Down Med-Mal Cap, TRIAL, Sept. 2005, at 20.) Illinois enacted a cap in August, but the state supreme court has invalidated caps twice before for violating the state constitution's provision barring special legislation and the doctrine of separation of powers. If the cap is challenged again, "there's no reason to believe the outcome will be any different this time," Lipton said.

But Botsford presents a federal issue. "There's no question that the Seventh Amendment applies to this case, and that may be the reason the Supreme Court grants cert in this case," Lipton said.

Peck added, "I do not believe Botsford will have a very long shelf life, and it hardly indicates that federal cap challenges are doomed."