Drysdale v. South County Hospital Health Care System, 010505 RISUP, WC 01-0373

• Case Date: January 05, 2005
• Court: Rhode Island

DOUGLAS DRYSDALE AND DONNA DRYSDALE v. SOUTH COUNTY HOSPITAL HEALTH CARE SYSTEM, ALIAS JOHN DOE I, DAVID COPPE, M.D., ERICA JOST, M.D., PAWTUXET VALLEY PRESCRIPTION & SURGICAL CENTER, INC. JOHN DOE II, AND JOHN DOE III C.A. No. WC 01-0373 Superior Court of Rhode Island January 5, 2005          DECISION          Rubine, J.          The matter before this Court is Plaintiffs' motion to strike Defendants' affirmative defense relating to the applicability of G.L. 1956 § 9-19-34.1, the so-called medical malpractice collateral source statute. Plaintiffs argue that §9-19-34.1 is unconstitutional,1 and thus the defense asserting its application is insufficient and should be stricken pursuant to Rule 12(f). Defendants object to Plaintiffs' motion.2          Facts and Travel          Plaintiffs brought this medical malpractice action against Defendants on July 13, 2001. According to Plaintiffs' answer to interrogatories, Plaintiff Douglas Drysdale's medical bills, net of co-payments made by the Plaintiff, were substantially paid by Blue Cross, a third party insurer. Plaintiff also states that he received temporary disability benefits and social security disability payments as a result of the injuries sustained allegedly due to the negligence of one or more of the Defendants.3          In light of these payments, Defendants Coppe and Pawtucket Valley Prescription and Surgical Center, Inc., in their respective answers, asserted an affirmative defense relating to the applicability of the provisions of § 9-19-34.1. 4 That provision, applied as a rule of evidence at trial, has the effect of abolishing the common-law collateral source rule in medical malpractice actions with regard to specific types of collateral payment.5          Plaintiffs have notified the Attorney General pursuant to the provisions of the Rules of Civil Procedure, Rule 24(d), of the constitutional challenge. The Attorney General, by letter dated November 1, 2004, has advised the Plaintiffs and the Court that he will not intervene at this time relative to the constitutional issues.          The Rhode Island Rules of Civil Procedure allow a party to make a motion to strike a defense raised in any pleading. The rule provides:

"Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Super. Ct. R. Civ. P. Rule 12(f).

         Motions to strike a defense under Rule 12(f) are generally not favored. See Kaiser Aluminum and Chemical Sales, Inc. v. Avondale Shipyards, 677 F.2d 1045, 1057 (5^th Cir. 1982). However, in the instance when only a legal determination must be made based upon uncontroverted facts, a motion to strike may be useful. See generally, Wright & Miller, Federal Practice and Procedure: Civil 3d § 1381.          It appears from these pretrial pleadings that it is the intention of the Defendants, at trial, to make the statutory election permitted by §9-19-34.1. Accordingly, this motion to strike is essentially in the nature of a motion seeking a determination in limine as to the availability of this statutory defense. In that procedural context, the Court will rule on the constitutional issues raised by the Defendants.          Background          In 1976, the General Assembly enacted the Rhode Island Medical Malpractice Reform Act. See P.L. 1976, ch. 244, sec. 7. At that time, the General Assembly enacted G.L. 1956 § 9-19-34, the precursor to the statute challenged herein. In addition, the General Assembly at that time enacted a variety of other measures designed to address a perceived crisis in connection with medical malpractice claims. In pertinent part, the statute effectively abrogated the common law collateral source rule in the context of medical malpractice actions. The common law collateral source rule "mandates that evidence of payments made to an insured party from sources independent of a tort feasor are inadmissible and shall not diminish the tort feasor's liability to plaintiff." Votolato v. Merandi, 747 A.2d 455, 463 (R.I. 2000) (quoting Gelsomino v. Mendoca, 723 A.2d 300, 301 (R.I. 1999)).          In 1986, the collateral source statute was amended to add the language which provides that whenever the plaintiff's award is...