source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    Margaret B. Everett, wife of/and Gary EVERETT v. Daniel W. GOLDMAN, M. D., et al.
    No. 60959.
    Supreme Court of Louisiana.
    May 22, 1978.

      W. K. Christovich, Christovich & Kear-ney, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., Louisiana Dept, of Justice, for State of La., interve-nor-respóndent.
    Samuel S. Dalton, Earl B. Gray, New Orleans, for plaintiffs-respondents.
    John V. .Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for The La. State Medical Society, amicus curiae.
    Jesse D. McDonald, Hudson, Potts & Bernstein, Monroe, for Medical Societies of Ouachita, Orleans, Calcasieu, Rapides, Lafayette & Jefferson Parishes, amicus curiae.
    Robert J. Conrad, Jr., Prank M. Adkins, Sam A. LeBlanc, III, Adams & Reese, New Orleans, for Metropolitan Hospital Council, amicus curiae.
    David W. Robinson, Robert L. Roland, Watson, Blanche, Wilson & Posner, Baton Rouge, for The La. Hospital Assoc., amicus curiae.
    Paul H. Dué and Robert D. Downing, Due, Dodson & deGravelles, Baton Rouge, for La. Trial Lawyers Assoc., amicus curiae.
    Darryl J. Foster, Robert N. Ryan, Bien-venu, Foster, Ryan & O’Bannon, New Orleans, for La. Dental Assoc., amicus curiae.
   CALOGERO, Justice.

This is the first case to come before this Court testing various provisions of Louisiana’s Medical Malpractice Act first passed in 1975. La. R.S. 40:1299.41 et seq.

We granted a writ of review on application of defendant Daniel W. Goldman, M.D. who complained of the trial court ruling by which four provisions of the Medical Malpractice Act were declared unconstitutional.

The litigation was prompted by the purported negligence of three medical doctors and a medical clinic during December of 1975 and January of 1976. Plaintiff claims that she had become pregnant, her condition was misdiagnosed, she was subjected to abdominal x-rays, and she was thereafter required to undergo a therapeutic abortion. She and her husband filed suit in May of 1976 against the various doctors, the medical clinic and their several insurors seeking in their petition and its prayer an express dollar amount in the sum of $4,250,322.00.

Louisiana Revised Statute 40:1299.41(E) provides that “No dollar amount or figure shall be included in the demand in any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises.” Revised Statute 40:1299.47 provides that “No action against a health care provider covered by this Part, or his insuror, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel,” unless waived by agreement of the parties. R.S. 40:1299.47(B). Relying upon these statutory provisions, and contending that the plaintiff had not presented her complaint to a medical review panel, one of the defendants, Dr. Goldman, filed an exception of prematurity and an alternative motion to strike the provisions of plaintiff’s petition by which a specific dollar amount was sought.

After dismissal of the exceptions for reasons not here pertinent, and reinstitution of same, and following the submission of argument and briefs, among which was plaintiff’s contention that the exceptions were baseless because the medical malpractice act was unconstitutional, the trial judge dismissed both exceptions, and in so doing expressly declared unconstitutional four provisions of the medical malpractice statute: R.S. 40:1299.41(E) (no dollar amount allowed in demand) and R.S. 40:1299.47 (pre-suit medical review panel), the two provisions raised by defendant’s exceptions; and R.S. 40:1299.42(B)(1) (absolute limit of recovery of $500,000) and R.S. 40:1299.44 (patients’ compensation fund), two provisions not at issue in connection with defendant’s exceptions.

PROVISIONS OF MEDICAL MALPRACTICE ACT

Prior to 1975, medical malpractice claims whether asserted in tort or contract were treated under our law much like other tort or contract claims. In that year, however, reacting to what it considered a crisis in the delivery of medical services to the people of this state, a crisis ostensibly prompted by prohibitive costs in connection with medical malpractice insurance, the state legislature passed several statutes which for simplicity we will refer to as the Medical Malpractice Act of 1975.

The most significant provisions of the act fit generally in the following scheme. A health care provider (and this category includes physicians, hospitals, dentists, registered nurses, practical nurses, pharmacists, optometrists, podiatrists, chiropractors, physical therapists, psychologists, or any officer, employee or agent thereof acting in the course and scope of his or her employment) has the option of qualifying under the act. R.S. 40:1299.41(A)(1). If he or she does not qualify, that person is not covered by the provisions of the statute and the patient’s remedy is not affected by the terms and provisions of the statute. R.S. 40:1299.41(D). Thus the patient of a health care provider who has not qualified is no different from any other tort or contract victim, while the patient of a qualified health care provider (one who has qualified under the act) is regulated by the act insofar as malpractice recovery is concerned.

The health care provider who chooses to qualify may do so by filing with the Commissioner of Insurance proof of financial responsibility. R.S. 40:1299.42(A)(1). This proof can be a policy of malpractice liability insurance in the amount of at least $100,-000.00 per claim or, in the event the health care provider is self insured, proof of financial responsibility in excess of $100,000.00. R.S. 40:1299.42(E). The provider must also pay a surcharge which is an amount determined by the Louisiana Insurance Rating Commission based upon actuarial principles; that sum cannot exceed twenty percent of .the costs to each health care- provider for maintenance of financial responsibility (his $100,000.00 policy, etc.). R.S. 40:1299.-42(A)(2).

The health care provider who qualifies under the act gets the advantage of the provisions thereof, one of which is that the total amount recoverable from all defendants for any injury or death of a patient may not exceed $500,000.00 plus interest and costs, R.S. 40:1299.42(B)(1); and a particular health care provider is not exposed to an amount in excess of $100,000.00 for all claims of malpractice because of injury to or death of any one person, R.S. 40:1299.-42(B)(2). Thus, the act allows a subscriber to limit directly the maximum amount of his total liability for any malpractice claim which arises after he enters the program.

Under the act, the $500,000 limits are structured in the following way. The single claimant can get no more than $500,000 including $100,000 from each liable doctor and the balance from the patients’ compensation fund. R.S. 1299.42(B). The patients’ compensation fund which is made up of the annual surcharges is administered by a risk manager, an insurance company chosen by the Commissioner of Insurance for this purpose in accordance with the public bid laws of the state. See R.S. 40:1299.44; R.S. 40:1299.41(A)(10). Thus, while the malpractice victim with a meritorious legal claim who is a patient of a qualified health care provider is limited to recovery of not more than $500,000, he is presumably assured of recovery of at least $100,000 by virtue of the liability insurance and/or other financial responsibility security. Moreover, he may receive an additional $400,000 from the patients’ compensation fund, but only to the extent that there is enough in the fund to honor all claims. Under the scheme, all claims from the patients’ compensation fund are computed on December 31st of the year in which the claim becomes final and are paid on or before January 15th of the succeeding year. R.S. 40:1299.-44(A)(7). Should the fund be insufficient to pay in full all claims awarded during a calendar year, the amount paid to each claimant is to be prorated and any amounts due and unpaid are to be paid, to the extent funds are available, in the following calendar year.

Linked to these limitations on awards is the act’s prohibition against ad damnum clauses. By this legislation Louisiana has statutorily precluded a prayer for a specific amount of damages in an action for negligent health care. In his petition the malpractice victim of a qualified provider may ask only for “such damages as are reasonable in the premises,” not a specific dollar amount. R.S. 40:1299.41(E). This provision assertedly is beneficial to health care providers because it prevents the possibility of a jury’s being unduly impressed by the quantum of damages sought in the petition. It is intended to prevent the implementation in the public consciousness of inflated ideas of what claims are worth. 50 Tul.L.Rev. 655, 669-70 (1976); 1975 Duke L.J. 1417, 1451-53 (1976). It is hoped by the act’s proponents that by countering these psychological causes of large awards the size of malpractice judgments will gradually shrink to “acceptable” levels. 50 Tul.L.Rev. at 670. The consequent reduction in total dollar recoveries would assertedly ease the insurance premium burden and encourage continued medical care by a great number of practitioners.

A second advantage to a health care provider who has qualified under the act is that his patient must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law. R.S. 40:1299.47. Although this requirement can be waived by the agreement of both parties, it is assumed that most malpractice cases against health care providers will be filtered through such a panel.

Under the Louisiana act the medical re- . view panel is made up of three physicians and a nonvoting attorney-chairman. R.S. 40:1299.47(C). Two of the physicians are selected by the plaintiff and defendant respectively, and these two choose a third, all of whom are required to serve. Evidence is presented to the panel only in writing by such means as medical charts, laboratory tests, depositions, and the like. Any party can cause to issue subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence. Either party may question the panel regarding any matters relevant to issues to be decided by the panel. Under certain conditions the panel may consult with medical authorities.

The sole duty of the panel is to express its expert opinion(s). Within thirty days but in all events within one hundred and eighty days after selection of the last member of the panel, the panel shall render signed and in writing one or more of the following expert opinions:

“(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint;
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) Where Paragraph (2) above is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.” R.S. 40:1299.47(G).

No findings are made by the panel as to damages.

The findings of the medical review panel are not binding on the litigants. The claimant, whose time of filing a suit is suspended until ninety days following issuance of the opinion by the panel, may file suit in a court of law. R.S. 40:1299.47(A). The report containing the panel’s opinion will be admissible as evidence in later litigation, but the expert opinion shall not be conclusive and either party has the right at trial to call at his cost any member of the medical review panel as a witness.

Pretrial screening through a medical review panel is designed to weed out frivolous claims without the delay or expense of a court trial. It is thought that the use of such panels will encourage settlement because both parties will be given a preliminary view of the merits of the case. 1975 Duke L.J. 1-117, 1456-63. If a claim is found by the panel to be without merit it is thought that the claimant will be likely to abandon his claim or agree to a nominal settlement. Martin H. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759 (1977); 50 Tul.L.Rev. supra at 681; U.S. Dept. of Health, Education & Welfare, Pub.No. (OS) 73-88, Medical Malpractice: Report of the Secretary’s Commission on Medical Malpractice, p. 91 (1973). Moreover, a plaintiff who gains a favorable opinion from the panel may be able to negotiate a favorable settlement with his defendants, a procedure which also avoids much of the time and expense of a trial. HEW Report, supra at 91; Mallor, A Cure for the Plaintiff’s Ills?, 51 Ind.L.J. 103, 106-07 (1975). See Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970). Thus, to the extent that the use of medical review panels encourages settlement of suits before trial, litigation costs will probably be reduced. Because out of court settlements usually do not garner the publicity of jury verdicts it is also hoped by proponents of the legislation that publicity concerning the award figure will be minimal and that this fact will gradually reduce awards granted by juries. Redish, supra at 767. Additionally since jury awards are believed generally to be larger than settlements, the increase in prevalence of the latter should serve to reduce the overall payment of claims. Thus, litigation costs and actual awards are expected to be lessened by virtue of the employment of pre-suit medical review panels.

The provisions of the medical malpractice act are statutorily declared severable. Acts 1975, No. 817 § 2; Acts 1976, No. 183 § 8; Acts 1977, No. 143 § 2.

LIMITATION OF LIABILITY AND PATIENTS’ COMPENSATION FUND PROVISIONS

The four provisions of the medical malpractice act which the trial judge in this case declared unconstitutional form the principal means by which health care providers in the private sector are to be treated differently from other tort perpetrators in an effort to solve the feared medical malpractice crisis. The absolute limit on recovery to $500,000 as provided for in R.S. 40:1299.42(B)(1) and the structure of the patients’ compensation fund as set out in R.S. 40:1299.44 together form part of the mechanism by which qualified health care providers limit their liability. The medical review panel procedure set up through R.S. 40:1299.47 is intended to insulate health care providers from fighting frivolous claims through expensive and tedious court procedures, and to encourage settlement of clearly meritorious claims. The ad damnum proscription of R.S. 40:1299.41(E), while of less importance to the entire scheme, is expected to contribute to the gradual decrease in the amount of awards made by juries in those cases that do go to trial.

In its judgment, the trial court declared unconstitutional each of these four provisions. Only two of them, however, were raised by the pleadings. The need for plaintiff to convene a medical review panel before filing suit and the failure of plaintiff to comply with the ad damnum proscription were raised by defendant Goldman’s exception of prematurity and his alternative motion to strike. The plaintiff filed no further pleadings in response to defendant’s exceptions and motion, but in a memorandum she attacked the constitutionality of the entire statute.

It is our rule of long standing to refrain from considering constitutional issues unless such a determination is necessary to a resolution of the present rights of the litigants in the case. Aucoin v. Dunn, supra; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660 (1942).

Undoubtedly, many aspects of the medical malpractice act will be subjected to judicial scrutiny before it becomes settled to what extent the legislature’s remedial effort is consistent with constitutional restraints. However, each provision is entitled to judicial evaluation in the context of a justiciable issue the resolution of which requires its application. The case at bar in its present posture properly presents for consideration but two facets of the medical malpractice act: (1) the requirement that the plaintiff first submit her complaint to a medical review panel, the composition of which is provided by R.S. 40:1299.47(13), and (2) the prohibition against the traditional ad damnum clause praying for damages in a specific dollar amount, as provided by R.S. 40:1299.41(E), second clause. These were the only two provisions of the act pertinent to defendant’s objections, see C.Civ.P. art. 852, in the present posture of the case.

Thus, we determine that only the constitutionality of R.S. 40:1299.47(13) and R.S. 40:1299.41(E) are before us. We will therefore make no determination relative to the constitutionality of R.S. 40:1299.42(B)(1) (the $500,000 limitation) or R.S. 40:1299.44 (the patients’ compensation fund). For this reason, we will vacate the trial court’s judgment holding unconstitutional R.S. 40:1299.-42(B)(1) and R.S. 40:1299.44.

CONSTITUTIONAL CHALLENGES: EQUAL PROTECTION

We now turn to an examination of the constitutionality of the provisions of the act which require claims screening through a medical review panel and proscribe use of an ad damnum clause.

The court below found that the medical review panel provision was unconstitutional because various portions of it violated the equal protection clauses of the state and federal constitutions, the due process clauses of the state and federal constitutions, the state constitutional right to open access to the courts, and the state constitutional prohibition against special laws. Because we feel the equal protection challenge to be the most significant, we will deal with it first. 'The basis of the equal protection attack is that it is only malpractice victims treated by qualified health care providers who must convene the review panel and who may not set out in their petitions a specific amount of damages. Malpractice victims of those who are treated by non-qualifying health care providers are free to file suit without convening a medical review panel and may pray for a specified amount of damages just as in any other lawsuit. Correspondingly, plaintiff argues that the medical malpractice act confers benefits on the medical malpractice defendant who has qualified under the act which are unavailable to other defendants in tort cases. She emphasizes that this differing treatment results from a voluntary action on the part of the doctor, who may choose to qualify under the act or not, and that his action can be taken without notice to his patients.

Both the federal constitution and the Louisiana constitution mandate equal protection of the laws. U.S.Const. fourteenth amend.; La.Const. art. I § 3. Under traditional analysis this constitutional guarantee means 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 (1969)) when the law violates a “fundamental” interest (Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974)); or when a law is based upon a trait which renders it “suspect” (San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). But in all cases where separate classifications are at issue, “the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972); see Succession of Robins, 349 So.2d 276 (La.1977). Stated another way, the issue in cases where no fundamental right or suspect classification is present is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. Succession of Robins, supra.

Certainly in the present case we are faced with a situation where parties similarly situated (victims of malpractice) are treated differently: the malpractice victims of qualified health care providers must convene a presuit medical review panel and are prohibited from praying for a specified sum of money, while victims of health care providers who have chosen not to qualify under the act are not governed by these provisions.

But the statute does not affect fundamental rights or create a suspect classification. Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. See Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); compare San Antonio Independent School District v. Rodriguez, supra. Suspect classifications are those involving such unalterable traits as race, alienage and religion. Chabert v. Louisiana High School Athletic Ass’n, 323 So.2d 774 (La.1975). The right to immediate commencement of a malpractice lawsuit without panel determination, and the right to state the total of sought damages in a petition are not fundamental rights jealously protected by the highest standard of the equal protection clause. Moreover, patients of qualified health care providers do not comprise a suspect classification. Thus, because the “compelling state interest” test is not appropriate in this case, a lesser standard must be utilized. Under this lesser standard, the thrust of our inquiry becomes this: what valid state purpose is reasonably furthered by this legislative classification.

The valid state purpose said to be served by the two provisions of the medical malpractice act before us is the lowering of the cost of health care generally and the assuring of available medical care for the citizens of the state. We cannot say that the two challenged provisions of the act adopted by the legislature represent an unreasonable response to the medical malpractice problem. Nor are the provisions especially far reaching.

The proscription against the ad damnum clause does not set a limit on an award, nor does it restrict payment of judgment; it merely prevents a plaintiff from praying in his pleadings for a specified sum of money, usually vastly inflated. See Affett v. Milwaukee & Surburban Transp. Corp., 11 Wis.2d 604, 106 N.W.2d 274 (1960); 1975 Duke L.J. supra at 1452. The legislature believes that this proscription will have a beneficent influence in effecting reasonable jury awards, gradually causing them to be reduced to what are viewed as more appropriate levels. We find this enactment rationally related to an appropriate governmental interest, the guarantee of continued health care services for our citizens at reasonable cost.

Likewise, the requirement that malpractice claims be filtered through a medical review panel is not unreasonable and seems to be a rational effort to accomplish a plausible goal. A panel determination adverse to a malpractice claimant’s interest does not preclude his filing a lawsuit. Such a determination would seem to exert subtle pressure on the claimant in a case of little worth to abandon or to settle his claim reasonably, thereby saving the defendant and his insurer the time, expense and worry of apparently needless litigation. And a favorable panel decision will probably aid the claimant in exerting pressure on a defendant to settle the case reasonably, thus treating the malpractice victim to savings in time and expense and to avoidance of possibly risky litigation. In those cases which do go to trial, a plaintiff successful before the panel will benefit from the evi-dentiary support of the panel's finding and the testimony of the panel members.

In requiring a pre-suit medical review panel the act is not unreasonable; it has no far reaching or especially adverse effect upon the malpractice victim’s or health care provider’s rights. While the savings in overall cost are yet to be proven we cannot say that this legislative effort will not further the accomplishment of what is surely a plausible goal. As did the Florida Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), we hold that the medical review panel does not exceed constitutional limits.

Plaintiffs also complain that the fact that not all health care providers are required to qualify under the act unfairly allows potential malpractice defendants to control how they will be sued. We find no merit to this argument because we believe that the legislature’s decision to allow doctors to decide for the'mselves whether to join the plan is rational. The present system does not force all doctors to qualify under the plan, but is available for those doctors, among others, who do not presently have malpractice insurance, those who cannot afford the premiums for sufficient coverage without substantially raising their fees, and those who fear future loss of coverage or higher premiums. In offering an insurance plan for such groups as these who might otherwise practice without full coverage, or give up their medical practice, the legislature has reasonably allowed health care providers to decide whether or not they wish to qualify under the act.

We hold that an appropriate governmental interest is suitably furthered by distinguishing between classes of medical malpractice victims as is done in this act and by governing patients of qualified doctors by the clauses requiring a medical review panel and proscribing an ad damnum clause. Accordingly the equal protection clauses of the state and federal constitutions are not offended.

DUE PROCESS

The trial judge held that the medical review panel provision violates substantive due process in that the act bears no real and substantial relationship to promotion of the public health. He found no merit in the defendant’s position that the use of the panel guaranteed availability of medical malpractice insurance at reasonable rates by encouragement of settlement of malpractice cases so as to ease the pressure placed on insurance premiums by extremely high jury verdicts.

Basically for the same reasons as those set out in our discussion of the equal protection issue above, we hold that the medical review panel requirement and the ad damnum clause proscription do not violate federal or state guarantees of substantive due process.

A statute may be held to violate substantive due process when it does not bear a real and substantial relationship to an appropriate governmental objective. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Louisiana State Bd. of Optom. Exam. v. Pearle Optical, 248 La. 1062, 184 So.2d 10 (1966); City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964). Stated another way, the test of substantive due process is whether the regulation is reasonable in relation to the goal to be attained and is adopted in the interest of the community as a whole. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); City of Shreveport v. Curry, 357 So.2d 1078 (La.1978).

The two provisions of the medical malpractice act challenged in this litigation operate to eliminate unwarranted recoveries in malpractice actions without depriving a deserving patient-plaintiff of compensation. Screening of claims through the medical review panel is expected to cause many claims to be served without trial; and the prohibition against a petition’s requesting a particular dollar amount in recovery is expected to reduce the number of occasions when excessive verdicts are rendered. These influences are expected to limit indirectly the overall amounts paid out by health care providers and, consequently, to ease the insurance premium burden. It is with the goal of avoiding a crisis in medical care brought on by the inability of doctors and others to practice because they are unable to gain malpractice insurance at all, or are unable to gain malpractice insurance at tolerable rates, that the legislature has enacted these provisions. We find that the provisions do bear a real and substantial relationship to the preservation and promotion of the public welfare, i. e. the need for health care for our citizens at reasonable cost. For this reason, we hold that the medical review panel and ad damnum proscription do not violate state or federal guarantees of substantive due process.

ACCESS TO THE COURTS

The trial judge found the medical review panel provision to be an unconstitutional infringement upon a citizen’s guaranteed right to access to the courts. He found that the panel causes delay and adds additional expense, and that it is impartially weighted against a claimant because all the voting members of the panel are doctors who render their opinion without benefit of judicial limitation.

The constitutional guarantee of access to the courts is Article I, section 22 of the Constitution which reads: “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.” This provision, like the fourteenth amendment to the United States Constitution, protects fundamental interest to a greater extent than interests that are not considered of fundamental constitutional importance. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954). When a claimant is asserting a right not subject to special constitutional protection, however, access to the courts may be restricted if there is a rational basis for that restriction. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (upheld appellate court filing fee requirement for litigant seeking increase in welfare payments); United States v. Kras, supra (upheld state statute which required payment of court costs and fees by bankruptcy applicant); Jones v. Union Guano Co., 264 U.S. 171, 44 S.Ct. 280, 68 L.Ed. 623 (1924) (law requiring chemical analysis by state chemist of fertilizer before institution of action for damages upheld).

The right of malpractice claimants to sue for damages caused them by medical professionals does not involve a fundamental constitutional right. Thus, it is to be tested by the lesser standard of rational basis. Ortwein v. Schwab, supra; United States v. Kras, supra.

The act provides, at the expense of a delay in filing the suit in court, a procedure for review of the claim. The panel determines from the evidence submitted whether there is a basis for the claim, and gives its opinion accordingly. If the panel determines the claim is substantial, the claimant obviously is benefited. If the panel determines the claim is groundless, the claimant is informed of what certain medical experts think of the merits of his claim. If he disagrees with their analysis he may still sue for a vindication of his rights in a court of law. The law specifically provides that prescription does not run during the period the matter is subject to consideration by the medical review panel and for a period of ninety days following its opinion.

Moreover, the fact that the plaintiff may not pray in his petition for a specified monetary sum does not restrict the judge’s or jury’s setting of damages. And these provisions do not restrict plaintiff’s recovery.

In all cases which go to trial the judge or jury remain the final arbiter of factual questions concerning liability and quantum. We find that these two provisions are reasonable, and that they do not unconstitutionally restrict access to the courts. See Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (2d Dept.1976).

SPECIAL LAWS

The trial court further found that the act violated the state constitutional proscription against special laws because the classification under the act does not embrace all health care providers but only those who have chosen to qualify under the act; because the normal legal rules of evidence are statutorily altered as to proceedings before the panel; and because the non-judicial panel wrongly serves in a judicial role.

Article 3, section 12 of the 1974 Constitution prohibits certain kinds of special laws, and the plaintiff urges that the medical malpractice act violates these particular constitutional provisions:

“(A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
* * * * * *
(3) Concerning any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court, or changing the rules of evidence in any judicial proceeding or inquiry before courts, or providing or changing methods for the collection of debts or the enforcement of judgments, or prescribing the effects of judicial sales.
* * * * * *
(7) Creating private corporations, or amending, renewing, extending, or explaining the charters thereof; granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.
* * * * * *
(B) Additional Prohibition. The legislature shall not indirectly enact special or local laws by the partial repeal or suspension of a general law.”

The provisions of Article 3, sections 12(A)(7) and 12(B) are clearly inapplicable.

The issue is a bit closer with respect to Article 3, section 12(A)(3) which prohibits the passage of a special law “concerning any civil or criminal actions.” Certainly it is arguable that the medical malpractice act is special legislation affecting civil actions in the sense that it applies to a group within a class of persons otherwise subject to liability for their negligent acts according to the usual codal and procedural law. However, this constitutional provision is applicable only where there is concerned a distinct lawsuit or lawsuits (action or actions) or where the group of affected litigants or lawsuits has no rationally distinctive characteristics.

Neither of these situations prevail here. Whether considered alongside all tort feasors or alongside health care providers who do not qualify under the act, the health care providers who do qualify under the act are a distinctive class whose separate treatment, for the reasons we have recited here-inabove, does not offend the equal protection clauses of the United States and Louisiana constitutions.

Thus, there is no merit to plaintiff’s complaints that the class does not embrace all health care providers and that the nornal legal rules of evidence are statutorily altered as to proceedings before the panel. Nor is there merit to the contention that a non-judicial panel serves in a judicial role, because the panel is not an adjudicatory body.

For these reasons we find Article 3, section 12 inapplicable here and plaintiff’s arguments in support of her attack that the act is an unconstitutional special law are without merit.

QUID PRO QUO

In various sections of her brief plaintiff argues that the pertinent provisions of the medical malpractice act are invalid on a quid pro quo principle, presumably an argument that the change in the law takes from her and similarly situated litigants certain substantive and procedural rights while giving her nothing (or very little) in return.

The quid pro quo doctrine, which has been mentioned by somé federal and state courts, presumably arose from a reading of dicta in New York Central Railroad v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917), which upheld the constitutionality of workmen’s compensation laws. Redish, supra at 785. The Court in White, however, held that “No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit.” 243 U.S. at 198, 37 S.Ct. at 250.

Even were we to assume the correctness of the plaintiff’s underlying argument that the medical malpractice act abrogates a previously existing right while offering no substantial benefit in return, we are aware of no constitutional principle which would be offended by that fact. For this reason, we find no merit in plaintiff’s argument that the medical malpractice act shall be invalidated because it fails to offer a quid pro quo.

CONCLUSION

Legislative enactments are clothed with the presumption of constitutionality and regularity. Johnson v. Welsh, 334 So.2d 395 (La.1976). This presumption continues until the party challenging the act’s constitutionality establishes that it contravenes some provision of the state or federal constitution. Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1968). We have reviewed the many contentions urged by the plaintiff in her attack upon the two pertinent statutory provisions. We find that she has not established that these provisions of the medical malpractice act are unconstitutional. Courts do not rule on the social wisdom of statutes, nor on their workability in practice. Imperfections in legislation are not in themselves grounds for judicial intervention unless those imperfections result in denial of constitutional rights or infringement on paramount statutory rights. James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). We are satisfied that the two provisions of the act now before us, institution of the medical review panel and prohibition of ad damnum clauses, are not constitutionally invalid.

Decree

For the foregoing reasons the ruling of the trial judge overruling the exception of prematurity and the alternative motion to strike filed by defendant Goldman is reversed. Defendant Goldman’s exception of prematurity is sustained and plaintiff’s petition is dismissed as to defendant Goldman. Furthermore, the findings of unconstitutionality made by the trial judge are vacated and two provisions of the medical malpractice act are upheld as constitutional: R.S. 40:1299.41(E) (ad damnum clause proscription) and R.S. 40:1299.47 (medical review panel). The case is remanded to the district court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . The trial court judgment overruled defendant’s exception of prematurity and motion to strike and declared portions of the medical malpractice act unconstitutional. Because this judgment was not final, no direct appeal lay to this Court. Were it final Article 5, section 5(D) of the Louisiana Constitution of 1974 would allow a direct appeal where “a law or ordinance has been declared unconstitutional” by a lower court. However, because of our policy of granting review in a case where a law has been found unconstitutional as well as the irreparable harm to be caused to Dr. Goldman (if the ruling below is not correct) in not having plaintiffs claim first reviewed by the statutory medical review panel, we granted defendant a writ of review.
      The state intervened in the trial court proceedings under Article 1880 of the Code of Civil Procedure, but did not file an appeal or a writ application nor join in the application of Dr. Goldman. For this reason, the state is not a party before us. Therefore, we will consider the issue urged by the state for our consideration: the need for a party attacking the constitutionality of a state statute in responsive pleadings to notice that attack to the attorney general pursuant to C.C.P. art. 1880. Even were the state properly a party before us we would not consider this procedural issue in light of the fact that the state, while interposing the procedural bar apparently to secure jurisprudential guidance, urges us to rule on the merits of the constitutional issue before us in the litigation. Under these circumstances, any expression by this Court on the procedural issue would constitute an advisory opinion, the granting of which is against our stated policy to render only decisions which affect the current rights of the litigants. Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970).

      . The original act has been amended twice, by Acts 1976, No. 183, § 8 and Acts 1977, No. 143, § 2.

      . For ease of description, hereinafter we use the terms “health care provider” or “doctor” interchangeably to refer to the various categories of persons included in this section.

      . We describe here the manner in which the system is intended to work under the statute. We make no judgment as to the actuarial soundness of the plan nor do we offer any forecast as to the constitutional validity of the maximum recovery provision.

      . We have been informed in supplemental defense brief that as of March 8, 1978 there was over four million, seven hundred thousand dollars in the patients’ compensation fund, and that the insurance commissioner’s office estimates that there are at least ten thousand health care providers now qualified for excess coverage by the fund.

      . Other provisions of the Medical Malpractice Act not especially pertinent to this litigation are provisions concerning the medical malpractice coverage to be furnished by state owned or state operated hospitals in Louisiana (R.S. 40:1299.37); medical malpractice coverage to be furnished employed physicians and others by each agency of the state (R.S. 40:1299.38); $500,000.00 maximum recovery in connection with malpractice claims against persons acting within the course and scope of employment, for and on behalf of the state (R.S. 40:1299.39); and the Uniform Consent Law (R.S. 40:1299.40).

      . Under the statute it is generally the party who is successful before the panel who bears the panel expense, if he can afford to pay it. R.S. 40:1299.47(1).


author: SUMMERS, Justice.

text:
    STATE of Louisiana in the Interest of Robert A. SMITH.
    No. 61043.
    Supreme Court of Louisiana.
    June 19, 1978.
    Raymond L. Simmons, Simmons, Nelson & Dunn, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

Relator Robert A. Smith is a juvenile, age sixteen. He was arrested and a petition was filed on September 13, 1977 in East Baton Rouge Family Court charging him with three counts of armed robbery, one count of attempted armed robbery and one count of aggravated battery, alleged to have been committed in August and September 1977. To this petition relator’s counsel filed a motion for preliminary examination, oyer and bond reduction. On October 14, 1977 the district attorney, by amended motion under the authority of Section 1571.1 of Title 13 of the Revised Statutes, requested that relator be transferred to the district court for trial as an adult.

On November 7,1977, a hearing was held on the motion for transfer and the motion for a preliminary hearing. After hearing witnesses for the state and the defense, the trial judge determined that there was “probable cause” under the statutes and authority to transfer relator to the District Court and the transfer was ordered. Cer-tiorari was granted on relation of the juvenile.

It is relator’s contention that the transfer to the district court for trial as an adult does not meet the statutory and jurisprudential requirements for juvenile transfers.

Section 19 of Article V of the Constitution authorized the legislature to “establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases.” Pursuant to this authority Section 1571.1 of Title 13 of the Revised Statutes was enacted by the legislature prescribing the following procedure for transfer from juvenile courts:

“A. Effective January 1, 1975, after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense by the statutes of the United States, of this state, or by ordinance of local political subdivisions exercising general governmental functions, the court, before hearing the petition on its merits, may transfer the alleged offender for prosecution to the appropriate court exercising criminal jurisdiction if the district attorney, the alleged offender, or the court on its own motion, files a transfer petition and the following conditions are met:
(1) The child has attained the age of fifteen years or more at the time of the alleged conduct:
(2) A hearing on whether the transfer should be made is held in conformity with R.S. 13:1571.2:
(3) Notice in writing of the time, place and purpose of the hearing is given to the child and his parents, tutor, or other custodian at least ten days before the hearing; and
(4) The court finds that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court.
(5)The child has previously been adjudicated a delinquent by the commission of any of the following offenses: second degree murder, manslaughter, negligent homicide, simple rape, armed robbery, aggravated battery, aggravated burglary, aggravated arson and aggravated kidnapping.
B. The transfer terminates the jurisdiction of the juvenile court over the child with respect to the delinquent acts alleged in the petition.
C. No child, either before or after attaining the age of seventeen shall be prosecuted in criminal court for an offense which was allegedly committed by the child who had not then attained the age of seventeen unless the case has been transferred to criminal court as provided herein, or except as otherwise provided by law.
D. Notwithstanding any provision of law to the contrary when an offender fifteen years of age or older is charged with armed robbery or a crime punishable by life imprisonment, and a petition is filed in the juvenile court requesting the transfer of the offender to a district court of general criminal jurisdiction in accordance with R.S. 13:1571.1 et seq., should the juvenile court approve the petition for transfer the juvenile court shall order such transfer without a previous adjudication of delinquency and the provisions of Paragraph 5 of Subsection A of this Section shall not be applicable in such instance.”

Relator’s principal contention is that the juvenile court judge did not find “that there were reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court” as required by Section 1571.1 A(4).

At the transfer hearing five state witnesses testified. Pour of the witnesses were victims of the crimes charged in this case. Roger Smith was the State’s other witness. He had been relator’s juvenile probation officer since February 1977. He testified from juvenile court records that relator was first referred to the court on March 22, 1975 for the crime of receiving stolen property (bicycle handlebars) and was counseled and warned by the intake division. Relator was next brought before the juvenile court on September 8, 1975, this time for the crime of criminal trespass (shooting pool at the LSU Baptist Student Union). He was again counseled and warned by the intake division. On December 10, 1976, relator was referred to the court for the third time. The complaint was his failure to move on when requested to do so by the police. He was counseled and warned again. The fourth time relator was referred to the court he was charged with possession of stolen property (two stereo speakers and a wallet). This January 14, 1977 referral resulted in a warning. There was no determination of guilt. Then, on February 23, 1977 relator was referred to the court for the crimes of attempted armed robbery and aggravated battery, the latter charge for hitting a boy with a stick in a fight. Relator pled guilty to the crime of aggravated battery, was adjudicated delinquent and placed on a suspended commitment. The attempted armed robbery charge was nolle prossed.

Smith testified that he supervised approximately 55 juveniles and that, in his opinion, on a one-to-ten scale, relator ranked five in terms of delinquency. He further stated that he did not believe defendant was beyond rehabilitative help; that he counseled defendant only one-half hour per month; that defendant had never been seen by a psychologist or a counselor other than himself; and that the court had not exhausted all of its services on defendant.

Thereafter, the four victims of the charges involved in this case were examined by the State in connection with relator’s motion for a preliminary hearing. They were cross-examined by relator’s counsel. The testimony amply supports a finding that there was probable cause to charge relator with the offenses in question. La.Code Crim.Pro. art. 296. But this is not the issue. The question we must decide is whether the juvenile court found that there were reasonable grounds to believe that the child was not amenable to treatment or rehabilitation through facilities available to the juvenile court as ordained by Section 1571.1 A(4).

In State v. Everfield, 342 So.2d 648 (La.1977), a sixteen-year-old youth accused of armed robbery was transferred to the district court and there received a 6V2 year sentence after pleading guilty to the crime charged. This Court granted certiorari and analyzed the United States Supreme Court cases of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). In doing so the Court interpreted the statutory standards set forth in Section 1571.1 A(4) to be applied in juvenile transfer proceeding as follows:

“We interpret this phrase to sanction transfer of only those youths for whom there is no hope of treatment or rehabilitation in the types of facilities utilized by juvenile courts. While this criteria necessarily calls for evaluation and judgment by the juvenile court judge, it is not unconstitutionally vague; it is couched in language within common usage and is sufficiently clear to enable a person of ordinary intelligence to comprehend its import. The numerous conditions which must be satisfied before a juvenile transfer is appropriate manifest the legislative intent that non-criminal treatment of juveniles is to be favored. Furthermore, La.R.S. 13:1592 specifically articulates the general policy and purpose of the juvenile court system to insure a child’s welfare by providing him with care as nearly equivalent as possible to that he would receive in a home environment. These manifestations of legislative intent effectively limit and guide the juvenile court judge’s discretion. Juvenile court judges of this state must recognize, as did the United States Supreme Court in Kent, that the decision to transfer a child for trial as an adult is a critically important one accompanied by tremendous consequences. Accordingly, the decision that juvenile is not amenable to treatment or rehabilitation should be based on a careful review of relevant considerations such as the age, maturity and sophistication of the juvenile; the nature and seriousness of the offense charged; prior acts of delinquency, if any, and their nature and seriousness; past efforts at rehabilitation and treatment and the juvenile’s response thereto; whether the juvenile’s behavior might be related to physical or mental problems; and the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of the particular juvenile whose transfer is being considered. We do not mean to suggest that these are the only relevant considerations. The juvenile court judge must evaluate each case on its own merits. There are no specific standards mandated by either the state or federal constitutions. In Breed v. Jones, supra, the Supreme Court noted that, although certain procedural due process rights set forth in Kent must be afforded at a transfer hearing, . . . the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court.
“In the final analysis, whether or not a youth is amenable to treatment of rehabilitation is a matter within the sound discretion of the juvenile court judge who has the opportunity to hear the evidence and to observe the juvenile. The exercise of this discretion must, of course, be principled. It must reflect the policy in favor of non-criminal treatment of children under seventeen years of age and the types of considerations set forth hereinabove. Moreover, there is the additional safeguard that the juvenile court judge must state his reasons for judgment with sufficient particularity to insure meaningful review by this court. Thus, we are satisfied that an adequate guide exists for the limited discretion vested in the juvenile court judge by La.R.S. 13:1571.1A(4).”

This record does not satisfactorily establish that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court. With respect to one of the principal considerations for determining transfer — the past efforts at rehabilitation and treatment and the juvenile’s response thereto — the evidence is sadly deficient. Only counseling and warning on a single occasion resulted from the first four offenses, which are admittedly minor. But their repetition indicated a pattern of lawlessness which demanded more attention. On the fifth offense, where relator was adjudged a delinquent on a guilty plea of aggravated battery and placed on a suspended commitment, the probation officer counseled with him about one-half hour monthly from late February to September 1977. Relator was not examined by a psychologist or other expert to determine whether his behavior might be related to physical or mental problems. And the record is silent concerning the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of this particular juvenile. Nor does the ruling of the juvenile judge state his reasons for judgment with sufficient particularity to insure meaningful review by this Court.

Here a sixteen-year-old is charged with crimes of armed robbery. If he is tried as a criminal and found guilty in the district court he will be exposed on each offense to a sentence at hard labor of not less than five years and not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. Confinement under these sentences is in the state penitentiary with adult felons of every description. The dreadful prospect of incarcerating a juvenile with murderers, rapists and other felons is a matter of common knowledge. If he is adjudged a delinquent in the juvenile court his most serious punishment on all charges will be five years confinement in the Louisiana Training Institute, an institution for juveniles. Obviously, the difference is one of tremendous consequences requiring careful and meticulous attention to proper safeguards designed to implement the State policy of noncriminal treatment of children ' under seventeen years of age. The determination should explore every reasonable ground to assure the court that the juvenile cannot be treated or rehabilitated through facilities available to the juvenile court, and these matters must appear of record. Unless they do, the transfer cannot be approved.

For the reasons assigned, the case is remanded to the juvenile court for further hearings and reconsideration, not inconsistent with this decision.


author: MARCUS, Justice.

text:
    Carrell KILLEBREW v. ABBOTT LABORATORIES.
    No. 61338.
    Supreme Court of Louisiana.
    June 19, 1978.

      Alvin R. Childress, III, New Orleans, for plaintiff-applicant.
    Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Carrell Killebrew instituted this action against his former employer, Abbott Laboratories, for benefits under a long-term disability plan, provided by Abbott and administered through a trust for its employees, and for penalties and attorney fees under La.R.S. 22:657.

The disability plan contract allows payment of monthly benefits to age sixty-five but, under an exclusionary clause, provides that benefits will not be paid for any period of disability in excess of twenty-four months if the disability is “caused or contributed to by mental illness or functional nervous disorder. . . .” The contract also provides that benefits under the plan will be reduced by the amount of any federal social security payments received by the employee.

The trial judge found that the “overwhelming medical evidence compels the conclusion that plaintiff’s disability is due to a functional nervous disorder. . . . ” Accordingly, the trial judge limited plaintiff’s benefits under the plan to twenty-four months, less social security benefits received and less credit for four months of benefits previously paid. Penalties and attorney fees were not awarded. Plaintiff appealed.

Court of appeal affirmed the judgment of the trial court, agreeing that the medical evidence supported a finding that plaintiff had suffered a functional disability. The court found no merit to plaintiff’s contention that the contract provision for reduction of benefits under the plan by the amount of federal social security payments received was unconscionable and acted as an assignment of future social security payments. Finally, the appeal court found that Abbott was not an “insurer”; therefore, La.R.S. 22:657, providing for penalties and attorney fees for arbitrary and capricious failure to pay claims arising under the terms of health and accident contracts, did not apply to Abbott. On application of plaintiff, we granted certiorari to review the correctness of this decision.

In January, 1969, plaintiff contracted viral encephalitis while employed by Abbott but, upon recovery, was able to maintain his position. In the latter half of 1969, plaintiff’s duties with Abbott underwent a change. Previously, he held a promotional position, informing interns and residents of products available through Abbott. Thereafter, his position consisted of selling only hospital products and required contact with hospital personnel such as purchasing agents, pharmacists, and department heads. During the next several years, plaintiff suffered various physical ailments, including two hernias requiring corrective surgery, a urinary problem requiring surgery, gout, sinusitis, and a cardiac condition, none of which were disabling. He often experienced headaches and had difficulty maintaining a good relationship with his superiors at Abbott. Plaintiff was discharged by Abbott on February 20, 1973, because of insubordination and lack of performance. Plaintiff was forty-five years old at the time.

Through payroll deductions, plaintiff had participated in the long-term disability plan here at issue. He claimed disability payments to age sixty-five due to an alleged organic nervous disorder caused by the viral encephalitis in 1969. After receipt of four monthly benefits and denial of his claim for monthly benefits to age sixty-five, plaintiff filed this action.

The issues presented for our review are: (1) whether plaintiff’s disability is organic, entitling him to monthly benefits to age sixty-five, or merely functional, limiting benefits to twenty-four months; (2) whether the provision in the disability plan permitting reduction of benefits by the amount of the federal social security payments received is unconscionable and acts as an assignment of future social security payments; and (3) whether Abbott is an “insurer” and, if so, liable for penalties and attorney fees under La.R.S. 22:657 for its alleged arbitrary and capricious failure to pay benefits under the disability plan.

We first address the issue concerning the nature of plaintiff’s disability. Medical evidence at trial consisted of the testimony of four medical experts. Dr. Paul F. Larson, a neurologist, first examined plaintiff in October, 1973. He explained an organic neurological disorder as an abnormality in the brain structure. He defined a functional neurological disorder as a disorder of the thinking process, despite a completely normal brain. Dr. Larson testified that the results of his neurological examination of plaintiff, including examination of the mental status, motor system, cranial nerves, sensory, and cerebellar systems, were all normal. He found no indication of an organic neurological disorder in plaintiff. The doctor opined that, although plaintiff had psychological problems, he suffered from a functional disability in 1973. Dr. Larson referred plaintiff for evaluation to Dr. Grad L. Flick, a psychologist.

Dr. Flick supervised neuropsychological testing of plaintiff in November, 1973. He testified: “[Tjhere was no obvious evidence of any organic brain disfunction. [Plaintiff’s] performance was entirely within normal limits and in some cases he performed above average on some of the tests.” He stated that plaintiff had difficulty in interpersonal relationships and revealed a personality pattern characterized by “a tendency to rationalize unemployment to physical illness.” Dr. Flick further opined that plaintiff’s personality pattern is not typical of that seen in organic disturbance such as encephalitis and that, whatever input forms his personality, his problems are in the personality area rather than the organic area.

Dr. Thomas Oelsner, an internist, examined plaintiff in January, 1976. He testified that the results of his neurological examination of plaintiff were entirely normal and that, from a physical standpoint, plaintiff seemed to be in excellent health. He found no evidence of any disease that would prevent plaintiff from performing work, nor any evidence of organic brain damage. Dr. Oelsner opined that plaintiff’s disability had a functional basis.

Dr. Edward E. Thornhill, an internist, did not treat plaintiff for viral encephalitis in 1969 but became his physician shortly thereafter. Of the four medical experts who testified at trial, only Dr. Thornhill attributed plaintiff’s disability to an organic disorder caused by viral encephalitis in 1969. He testified that he based his conclusion upon the fact that he knew plaintiff prior to 1969 and subsequently observed his “deterioration.” Dr. Thornhill stated that the results of several brain scans on plaintiff produced normal results and that the results of several neurological examinations of plaintiff were normal, except for an indication of difficulty with concentration at times. He stated that he did not feel that neuropsychological tests were necessary.

After reviewing the record, we find, as did the courts below, that plaintiff’s disability was caused by a functional nervous disorder. Accordingly, benefits due plaintiff under the disability plan were properly limited to a period of twenty-four months.

We also agree with the finding of the court of appeal that the provision in the disability plan permitting reduction of benefits by the amount of the federal social security payments received does not afford Abbott “an unconscionable advantage” and does not constitute an assignment of future social security payments.

Finally, we reach the issue of whether Abbott is liable for penalties and attorney fees for its alleged arbitrary and capricious failure to pay benefits under the disability plan.

At the outset, we note that in Louisiana punitive damages are not allowable unless it be for some particular wrong for which a statute expressly authorizes the imposition of some such penalty. McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, cert. denied, 287 U.S. 661, 53 S.Ct. 220, 77 L.Ed. 570 (1932). It is also well recognized in the jurisprudence of this state that as a general rule attorney fees are not allowed except when authorized by statute or contract. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); Hernandez v. Harson, on rehearing, 237 La. 389, 111 So.2d 320 (1959).

Plaintiff contends that Abbott is an “insurer” subject to the provisions of the Insurance Code (La.R.S. 22:1, et seq.) and is liable for penalties and attorney fees under La.R.S. 22:657 A for its arbitrary and capricious failure to pay benefits under the disability plan. We do not agree.

La.R.S. 22:657 A provides:

All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases. (Emphasis added.)

La.R.S. 22:5(2) provides:

In this Code, unless the context otherwise requires, the following definitions shall be applicable:
‘Insurer’ includes every person engaged in the business of making contracts of insurance, other than a fraternal benefit society. A reciprocal, an inter-insurance exchange or a Lloyds organization is an ‘insurer’.

Abbott is not “engaged in the business of making contracts of insurance” merely because it provides, through a trust, a long-term disability plan for its employees. Abbott does not offer the program primarily for profit, nor is the coverage of its own employees the result of advertisement or solicitation of insurance business from the general public or of holding itself out or doing business as a commercial insurer. See Metropolitan Police Retiring Assoc., Inc., 113 U.S.App.D.C. 168, 306 F.2d 775 (1962); Danna v. Comm’r of Ins., 228 So.2d 708 (La.App. 1st Cir. 1969); State ex rel Farmer v. Monsanto Co., 517 S.W.2d 129 (Mo.1974); Mutual Life Ins. Co. of N. Y. v. N. Y. State Tax Comm., 32 N.Y.2d 348, 345 N.Y.S.2d 475, 298 N.E.2d 632 (1973). Accordingly, Abbott is not an “insurer” subject to the Insurance Code; therefore, La. R.S. 22:657 A is not applicable to Abbott. The courts below correctly denied penalties and attorney fees in the instant case.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, J., concurs in part, but dissents from the holding that the defendant was not an insurer.

DENNIS, J., dissents from the holding regarding the definition of an “insurer”.

      . Calculating benefits for two months at $510.00, seven months at $243.90, three months at $225.20 and eight months at $214.60, judgment was rendered in favor of plaintiff and against defendant in the full sum of $5,119.70, plus legal interest from date of judicial demand until paid and all costs, including the expert witness fees which were fixed in the judgment.

      . 352 So.2d 332 (La.App. 4th Cir. 1977).

      . 354 So.2d 205 (La.1978).


text:
    John F. SANCHEZ v. TRUSTEES OF the PENSION PLAN et al. Louis DeJOHN v. TRUSTEES OF the PENSION PLAN et al.
    No. 61465.
    Supreme Court of Louisiana.
    June 19, 1978.

      C. Paul Barker and Marie Healey, Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans, for defendants-applicants.
    W. P. Wray, Jr., Richard Mary, Wray & Robinson, Baton Rouge, for plaintiff-respondent.
   CALOGERO, Justice.

In these consolidated cases, plaintiffs, long time members of Local Union 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, sought an injunction against the trustees of three trust funds (Pension Plan, Health and Welfare Plan, and Education Fund) of Local 198 to prevent their being denied the right to continue as beneficiaries of the trusts.

For many years and until May 11, 1973, plaintiffs had been permitted and/or required to pay, and had paid the union dues, working assessments, death assessments and all other sums required by the union of its members. Sanchez had participated for 23 years, and DeJohn for 19. They had also earned corresponding credits as beneficiaries under each of the trusts; contributions to the trusts were made by the employers on each plaintiff’s behalf according to the prevailing collective bargaining agreement from the incipience of the trusts.

On May 11, 1973, contributions made for the plaintiffs by their corporate employers for the current pay period were returned to the employers. The trustees also returned to Sanchez and DeJohn checks of $3,432.40 and $4,001.77, respectively, which represented the total amount contributed over the years to the trust and on their behalf (no interest was included).

Both Sanchez and DeJohn and their corporate employers refused to accept the checks. They secured a hearing from the trustees; the trustees determined that they were ineligible to be members of the trust funds. Plaintiffs thereupon filed these consolidated lawsuits.

The facts are generally not in dispute and were presented to the trial court by way of a stipulation, which in greater detail than that presented hereinabove is set forth in full in the appendix attached to this opinion.

The dispute apparently arose following the plaintiffs’ refusal to walk a picket line. The legal reasons for the trustees’ and Local 198’s position are much less simple, and not entirely implausible.

In 1967 and 1960 respectively, Sanchez and DeJohn became master plumbers and officers in plumbing contractor corporations in which each held at least 50% of the stock. In effect, while still “employees” of their respective corporations, their roles had become management rather than union oriented.

The trustees took the position that under the Labor Management Relations Act, 29 U.S.C.A. 141 et seq., plaintiffs were employ ers rather than employees with respect to whom and for the benefit of whom money might be paid to a trust.

After these suits were filed, defendant removed the cases to the United States District Court for the Middle District of Louisiana, proceedings entitled Sanchez v. Trustees, 419 F.Supp. 909 and DeJohn v. Trustees, 419 F.Supp. 909. Defendants had secured the removal on the grounds that the federal court had exclusive jurisdiction over violations of Section 302 of the Taft-Hartley Act under 29 U.S.C.A. 186(e) that the federal court has jurisdiction over the subject matter of a suit against a union alleging a violation of an agreement and declaration of trust, and that if plaintiffs’ actions were successful, defendants would be in violation of an act of Congress, presumably Employees Retirement Income Security Act, 29 U.S.C.A. 1106 et seq., over which the federal courts have exclusive jurisdiction under 28 U.S.C.A. 1337. Plaintiffs acquiesced in the removal.

The United States District Court Judge to whom the case was assigned on his own motion raised the question of jurisdiction and determined that the action had been removed improvidently and without jurisdiction. He therefore remanded the case to the 19th Judicial District Court of East Baton Rouge Parish.

Assigning reasons for his decision to remand, the federal district court judge stated that because plaintiffs’ petition asserted only that the trustees’ action was a violation and breach of the trust and not that the trust was in any way defective or invalid, the complaints did not state a federal cause of action. He also rejected defendant’s claim of jurisdiction under 29 U.S.C.A. 186(e) on the basis that although a federal statute may be a defense to a state claim, that statute does not make the claim cognizable in federal court. Defendants also argued that the trustees would be subject to criminal and tax liability under E.R.I.S.A. which prohibits the “transfer to, or use by or for the benefit of, a party in interest, of any assets of the plan” and that each of the plaintiffs was a “party in interest” as defined by 29 U.S.C.A. 1002(14)(A) and (21)(A) and 29 U.S.C.A. 1002(14)(E), that is, one who owns 50% or more of the voting power or shares of a corporation which is an employer with respect to the plan. The federal judge also rejected this claim of jurisdiction concluding that the provisions of E.R.I.S.A. can not be construed to confer jurisdiction over a suit which arose and was filed long before the effective date.

Back in the 19th Judicial District for the Parish of East Baton Rouge, the trial judge determined that it was not impermissible under the federal law and under the specific provisions of the Local 198 trust funds, for plaintiffs Sanchez and DeJohn to participate and for their respective employers to make the necessary contributions to the plans for them after Sanchez and DeJohn had formed their own corporate enterprises. The district court found further that plaintiffs were members of the union, that Local 198 was their collective bargaining representative, and that accordingly, they fit the definition of employees under the trusts.

On appeal, the First Circuit affirmed, agreeing' in all respects but one with the district court, including its finding that the plaintiffs were covered by the agreement and the trusts. The Court of Appeal found, though, that Local 198 was not the collective bargaining representative of these management-type employees. Rather, the Court of Appeal relied on that portion of the definition of employees in Article V, Section 2 of the Pension Plan Trust and in Article I, Section 1.3 of the Health and Welfare Plan Trust which includes as participants “ ‘such other employees whom the Trustees shall determine to be employees.’ ” 353 So.2d 327 (La.1977).

We granted writs on application of the defendants, 354 So.2d 1384 (La.1978) concerned that the appropriate federal statutes may bar participating in the respective trusts as beneficiaries, or as the trust instruments more formally provide, “Recipients of Benefits.”

We now conclude that the Court of Appeal did not err in its findings and accordingly adopt the following portions of that Court’s legal reasons and underlying factual determination as our own.

“Contributions to the various trusts which are made by employers only, are permitted by § 302(c)(5) of the Labor Management Relations Act, 61 Stat. 136 et seq., 29 U.S.C.A. § 186(c)(5), which allows such contributions ‘with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents.’
Defendants argue that the definition of ‘employer’, ‘employee’, and ‘supervisor’ contained in 29 U.S.C.A. § 152, make it clear that the plaintiffs herein are not ‘employees’ under Section 302(c)(5). However, Federal courts have said that officer and supervisory employees are not excluded by Section 302(c)(5) from participation in such a trust. Blassie v. Kroger Company, 8 Cir., 345 F.2d 58 (1965).
We therefore conclude that the- right of participation depends on the language of the trust instruments themselves.
Article I, Section 2 of the Pension Plan Trust defines employees as ‘all of the Employees of each Employer for whom the Union is the collective bargaining representative, and for whom contributions are made . . . ’ Article V, Section 2 thereof provides:
‘RECIPIENTS OF BENEFITS. Benefits may be provided in accordance with Section 1 of this Article only for any Employee of a contributing Employer covered by a collective bargaining agreement between the Employer and the Union, salaried Employees of the Union for whom contributions are made by the Union, and such other Employees whom the Trustees shall determine to be Employees.’
Article I, Section 1.3 of the Health and Welfare Plan Trust states:
‘1.3 EMPLOYEES. The term “Employees”, as used herein, shall mean all of each Employer’s hourly paid employees for whom the Union is the collective bargaining representative, and/or for whom contributions are made, and such other employees whom the Trustees shall determine to be employees.’
Article II, Section 2.3 says that ‘all questions with regard to the eligibility of employees for benefits . . . shall be determined by the Trustees and their decisions shall be final and binding.’
Article I, Section 1.3 of the Educational Plan Trust is exactly the same as the same section in the Health and Welfare Trust.
The district judge found that Local 198 is the collective bargaining representative of the plaintiffs because they are members of the union, had designated the union as such when they first joined, and had never revoked that designation. We cannot agree.
It is clear from the record that both of the plaintiffs are the top executive officers of their respective corporations, with full authority to carry out administrative functions, including hiring and firing of personnel, giving out work assignments, and perform other functions which place them in the management category. It would be unrealistic to pretend that these individuals can, at the same time, be employees and employers in the collective bargaining process.
However, we are of the opinion that plaintiffs are not ineligible to participate in the various trust funds because the union is not their collective bargaining representative. Under the specific provisions of the trust agreements quoted above, the trustees are vested with broad discretion in determining benefit eligibility. All three trusts have provisions similar to the one in the Pension Plan Trust, which provides that benefits may be received by ‘any employee of a contributing employer covered by a collective bargaining agreement,’ and by ‘such other employees whom the Trustees shall determine to be employees.’ ” 353 So.2d at 329-30.

With the remaining portion of the Court’s legal reasons we are in general accord but with minor reservations. The trustees do indeed clearly have the discretion to include as beneficiaries employees who are not employees for whom the union is the collective bargaining representative, namely “such other employees whom the Trustees shall determine to be employees.” Other employees who are so designated by the trustees fall under the definition of employees in the trust plans.

Thus, as the Court of Appeal found, the pension trust plans are susceptible of interpretation which would make employees of the corporation who are major stockholders and executive officers thereof eligible for benefits thereunder. In this case the record reflects that the trustees were or should have been aware of the positions of plaintiffs relative to their respective corporate employers. We therefore conclude that, in accepting the contributions made on their behalf over a period of many years, the trustees have effectively accepted plaintiffs as beneficiaries in the trust and determined that these “other employees” should be employees eligible for benefits as beneficiaries under the plan. In effect, the trustees have belatedly attempted to change their earlier designation of plaintiffs as covered employees with the result of depriving these beneficiaries of the right of participation already granted them.

The Court of Appeal was therefore correct in holding that plaintiffs are “employees,” eligible to participate and to continue participating as beneficiaries in the various trusts which are the subject of this litigation.

Decree

The judgments of the district court and the Court of Appeal are affirmed.

AFFIRMED.

APPENDIX

Stipulation:

“Louis De John became a journeyman in Local Union 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe-fitting Industry of the United States and Canada, hereinafter referred to as 198, on May 23, 1949, and has been a member in good standing of 198 since 1949. Prior to that time, he had been an apprentice member. As a union member, he has always paid his dues, working assessments, death assessments, and all other sums required of him by the union.

“John F. Sanchez joined 198 in May of 1953 and has been a member in good standing of 198 since that time. As a union member, Sanchez has always paid his dues, working assessments, death assessments, and all other sums required by the union.

“As union members, De John and Sanchez are entitled to all rights and privileges and subject to the same duties as all other union members except they are not entitled to vote in union matters because they are now considered part of management.

“In September of 1960, De John was duly certified as a master plumber. On September 13, 1960, Louis Mechanical Contractors, Inc. was incorporated with De John as one of the principal stockholders, owning 50 percent of the stock. De John is and always has been president of the corporation and a member of its Board of Directors.

“In 1967, Sanchez was certified as a master plumber. In May of that year, John F. Sanchez Plumbing Company, Inc., was formed with Sanchez as a 50 per cent owner and president of the corporation.

“In June of 1959, 198 created the Health & Welfare Trust Fund and the Education Trust Fund. In October of 1963, 198 created the Pension Trust Fund.

“Both De John and Sanchez participated in these trust funds at their inception and contributions were made to the funds by their respective employers without question until May of 1973. After September of 1960, Louis Mechanical Contractors, Inc., reported to the funds that Louis De John was employed by it and contributions were made to the funds on his behalf by the corporation. After May of 1967, John F. Sanchez Plumbing Company, Inc., reported to the funds that John F. Sanchez was employed by it and contributions were made to the funds on his behalf by the corporation. Contributions were made to the funds pursuant to the master working agreement and the trust agreements in exactly the same manner as contributions for other covered employees.

“All three plans in question call for contributions by the employer based upon the number of hours worked, regardless of the salary or earnings of the employee in question. The amount of the contributions is set out in the master working agreement and was followed at all times.

“On August 11, 1972, a letter was delivered to De John ordering him to walk a picket line. By letter of August 23, 1972, De John was ordered to pay a fine of $30.00 for failure to walk the picket line. Enclosed with the August 23 letter was De John’s dues check, which was refused by the union. The dues check was later accepted, without his paying the fine, in October of 1972.

“By letter dated May 11, 1973, the contributions made on behalf of De John and Sanchez were returned to their respective corporate employers by check. The returned checks were refused by the corporations. To the present date, contributions have been continuously made to the plans at issue on behalf of De John and Sanchez by their respective corporate employers in exactly the same manner as for any other covered employee.

“Subsequent to the May 11 letters, De John and Sanchez secured a hearing from the trustees of the various plans. At that hearing, held October 4, 1973, the trustees determined that De John and Sanchez were ineligible to be members of the various trust funds.

“Union dues and assessments payments are made directly to the union by the employee. Contributions to the respective trust funds are made to the trustees by the employer on behalf of the employee. Contributions on behalf of De John and Sanchez are continuing despite the advice of the trustees to De John and Sanchez that they would no longer be covered.

“Both Louis Mechanical Contractors, Inc., and John F. Sanchez Plumbing Company, Inc., are members of the Mechanical Contractors Association. The association is represented by two employer trustees serving as regards the three trust funds in question. At one time, Louis De John, as president of Louis Mechanical Contractors, Inc., served as president of the Mechanical Contractors Association.”


text:
    BADON’S EMPLOYMENT, INC. v. Dean R. SMITH.
    No. 61500.
    Supreme Court of Louisiana.
    June 19, 1978.

      Boris P. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-applicant.
    D. Rex English, McCollister, McCleary, Fazio, Mixon & Holliday, Baton Rouge, for plaintiff-respondent.
   MARCUS, Justice.

This is a suit by plaintiff, Badon’s Employment, Inc., against defendant, Dean R. Smith, to recover a fee for services rendered by plaintiff in procuring employment for defendant pursuant to a written contract between the parties. The amount of the claim is $891, together with legal interest thereon from date of judicial demand until paid, plus twenty-five percent as attorney fees and all costs of the proceedings.

On October 21, 1975, defendant, a college graduate with a degree in zoology, contacted plaintiff about securing employment for him as a biological or chemical laboratory technician. The parties entered into a written contract in which plaintiff agreed to secure employment for defendant in return for which defendant agreed to pay a fee in accordance with a fee schedule contained in the contract should he accept employment to which plaintiff had referred him directly or indirectly within six months of referral. The contract further provided that, if any section of the contract was in conflict with the Louisiana Private Employment Agency Law or rules and regulations established thereunder, then the provisions of law and rules were to govern.

On the following day, Sheron Graham, one of plaintiff’s employees, telephoned the personnel department of Dow Chemical Company and learned that the company was engaged in hiring. However, the record clearly reflects that plaintiff had not obtained a bona fide job order from Dow Chemical Company nor had the company directed plaintiff to regularly accord interviews to the company with applicants of defendant’s qualifications. In fact, evidence adduced at trial revealed that the employment policy of Dow Chemical Company was not to secure job applicants through employment agencies but rather to recruit on a first come, first serve basis. Nevertheless, acting on this information, Mrs. Graham directed defendant to Dow Chemical Company to fill out an application for job employment. She did not, however, inform defendant of her attempt to sell his services to Dow Chemical Company without having first obtained a bona fide order therefor. Prior to proceeding to Dow Chemical Company, defendant was instructed to come by the agency and to sign a referral acceptance form. This form which was executed by defendant stated that, “On October 24, 1975 Badon’s Employment, Inc. sent the undersigned, Dean R. Smith for an interview with Dow Chemical Company for the purpose of negotiation and procuring employment.” Defendant then proceeded to Dow Chemical Company under the mistaken belief that plaintiff had arranged for an interview for him for a specific position of employment with the company. Shortly after filling out a job application with the company, he was given an interview and offered a position as a laboratory technician at an annual salary of $9,900, which he accepted. After subsequently discovering that defendant had been employed by Dow Chemical Company, plaintiff demanded payment of nine percent of defendant’s annual salary ($891) as its fee for services rendered in obtaining employment for defendant pursuant to the terms of the written contract entered into between the parties. Upon defendant’s refusal to pay the fee, plaintiff instituted the present suit.

Based on the foregoing facts, the district court concluded that plaintiff was “the procuring cause” of defendant’s employment with Dow Chemical Company and accordingly rendered judgment in favor of plaintiff as prayed. Defendant appealed.

The court of appeal found that the services rendered by plaintiff did result in defendant’s employment with Dow Chemical Company; therefore, under the terms of the contract between the parties, defendant was obligated to pay to plaintiff the fee stipulated therein. The court further determined that, although plaintiff had violated the proscription of the Louisiana Private Employment Agency Law, particularly La. R.S. 23:118(6), such violation did not prevent plaintiff from collecting its fee. In so ruling, the court interpreted the Louisiana Private Employment Agency Law as imposing purely administrative sanctions for violations of its provisions and as affording no private remedy to a defendant by virtue of an employment agency’s conduct proscribed by the statute. Accordingly, it affirmed the judgment of the district court. We granted certiorari to review the correctness of this decision.

La. Civil Code art. 12 states that “[w]hatever is done on contravention of a prohibitory law, is void, although the nullity be not formally directed.” Statutory rules may be either suppletive or imperative. A suppletive rule applies only if those affected by it have not excluded its application. On the other hand, rooted in public policy considerations, an imperative rule is applied without regard to the intention of the individuals concerned. A prohibitory law, as mentioned in article 12, is one that is cast in the imperative form, but exhibits a negative, rather than a positive, command. E. L. Burns Co., Inc. v. Cashio, 302 So.2d 297 (La.1974). If a party’s conduct contravenes a prohibitory law, pursuant to La. Civil Code art. 12, it is void and produces no legal consequences.

The issue presented for our determination is whether plaintiff’s conduct in procuring defendant’s employment with Dow Chemical Company violated a prohibitory law which, under La. Civil Code art. 12, would thereby prevent recovery by plaintiff of a fee for services rendered in securing employment for defendant.

The Louisiana Private Employment Agency Law, La. R.S. 23:101 et seq., is a comprehensive legislative scheme pertaining to the licensing and regulation of private employment agencies within the state. In the regulation of the activities and conduct of such agencies, La. R.S. 23:118 provides in pertinent part:

An employment agency shall not engage in any of the following activities or conduct:
(6) Direct an applicant to an employer for the purpose of obtaining employment without having first obtained a bona fide order therefor; however, a qualified applicant may be direct to an employer who has previously requested that he regularly be accorded interviews with applicants of certain qualifications. Likewise an employment agency may attempt to sell the services of an applicant to an employer from whom no order has been received as long as this fact is told to the applicant before he is directed to the employer. (Emphasis added.)

This provision is cast in the imperative form and exhibits a negative command in that it forbids an employment agency to direct an applicant to an employer for the purpose of obtaining employment absent a bona fide order therefor, a request by an employer that he regularly be accorded interviews with applicants of certain qualifications, or disclosure to the applicant that the agency is attempting to sell his services to an employer from whom no bona fide order has been received. Therefore, the statute is a prohibitory law and, pursuant to La. Civil Code art. 12, whatever is done in contravention thereof is void.

In the present case, the record clearly establishes that plaintiff directed defendant to Dow Chemical Company for the purpose of obtaining employment without having first obtained a bona fide order from the company. Nor had the company requested that it regularly be accorded interviews with applicants of defendant’s qualifications. Indeed, the contrary is suggested by the record in that the hiring policy of Dow was not to deal with employment agencies. Nor do we find that plaintiff disclosed to defendant before he was directed to Dow Chemical Company that the agency was attempting to sell his services to the company from whom no order had been received. Hence, plaintiff’s conduct in procuring defendant’s employment with Dow Chemical Company was in contravention of La. R.S. 23:118(6), a prohibitory law, and, therefore, under La. Civil Code art. 12, was void and of no effect. Accordingly, plaintiff may not recover from defendant a fee for services rendered in obtaining the employment for him.

We are further fortified in this conclusion by the fact that the Louisiana Private Employment Agency Law affords not only administrative sanctions for a violation of the act but also a private remedy to redress damages sustained by anyone injured by an employment agency or its employees while acting within the scope of their employment by reason of a violation of the act. La. R.S. 23:108 and 113. Any licensee under the act is required to file with the commissioner of labor a bond for each licensed office with security approved by the commissioner in the sum of five thousand dollars. La. R.S. 23:108. A condition of the bond is “[tjhat anyone injured by the licensee, or by his agents or employees while acting within the scope of their employment, by reason of a misstatement, misrepresentation, fraud, or deceit, or by reason of any other unlawful act or omission, or by reason of any other violation of the provisions of this part, made or committed in connection with the prosecution of the business licensed hereunder, shall have the right to sue on the said bond for damages in any court of competent jurisdiction.” La. R.S. 23:108(5). (Emphasis added.) It would appear anomalous to permit an applicant who has been injured by reason of an employment agency’s violation of the Louisiana Private Employment Agency Law to maintain an action on the bond for damages and yet to deny to an applicant the right to assert an agency’s violation of the act by way of defense to a suit brought by the agency for recovery of its fee.

In sum, we conclude that, where an employment agency engages in activities and conduct in contravention of the express prohibition set forth in La. R.S. 23:118(6) in obtaining obtaining employment for an applicant, the agency is not entitled to recover a fee for services rendered. Hence, the court of appeal erred in permitting plaintiff to recover from defendant a fee for services rendered in procuring employment for defendant.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. Judgment is rendered in favor of defendant, Dean R. Smith, dismissing plaintiff’s suit; all costs of these proceedings are assessed against plaintiff, Badon’s Employment, Inc.

      . 353 So.2d 320 (La.App. 1st Cir. 1977).

      . 354 So.2d 1386 (La.1978).