Brenda Berthelot VS Patients' Compensation Fund Oversight Board

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0112 BRENDA BERTHELOT VERSUS PATIENTS COMPENSATION FUND OVERSIGHT BOARD Judgment Rendered On Appeal from November 2 2007 the 19th Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Trial Court No 546268 Honorable R Michael Caldwell Judge Presiding William R Mustian III Attorney for Plaintiff Appellee Metairie LA Brenda Berthelot David A Woolridge Jr Attorneys for Defendant Appellant Carlton Jones III Louisiana Patient Baton Fund Rouge David A LA Bowling Oversight Attorneys Compensation s Board for Intervenors Appellees Methodist Hospital L L C Brian C Ebarb Pendleton New Orleans LA and Chalmette Medical Center Inc Robert I Baudouin Attorneys for Intervenor Appellee Tenet HealthSystem Memorial Richard E Gruner Jr Medical Center Inc Kmi S Blankenship Metairie LA Peter E Sperling Bruce A Cram1er James P Waldron Attorneys for Intervenors Appellees Meadowcrest Mid Hospital City Medical and Tenet L L C New Orleans LA BEFORE CARTER C J PETTIGREW AND WELCH J1 CARTER C J This involves appeal Louisiana Patients Compensation issues of care negligent requests complaints filed with the numerous Oversight Board the Fund and failure nursing home in the wake of Hurricane Katrina medical review that the requests complaints were complainants Malpractice involved in this panel request Act medical review panel care In who were the medical review The PCF for mandamus appeals trial as a 47A 1299 of prematurity defined trial comi to In each of against the health means that the of dilatory allegations by the LMMA thereby requiring litigation judgment granting several petitions discharge For the 3 at various medical claimants process to be initiated before ordering the PCF LSA R S 40 individual the PCF intervened in seeking judicial decisions by from their III and its immediate aftermath aligned itself with the malpractice panel instances some exceptions raising the objection constituted medical each the PCF notified the alleging similar damages during Hurricane Katrina providers to a the PCF refused to initiate the and therefore process the interventions the PCF hospitals and In response case raising within the scope of the Louisiana Medical not lawsuits that had been filed all facilities 1 contained allegations LMMA several to evacuate at PCF reasons its statutory duties pursuant to assigned below we affirm the comi judgment The peF is monies in trust to health care malpractice a legislatively compensate provider entity who may 44 1299 2 be fimd holding private protect qualified malpractice liable for damages caused by their that administers victims of medical members See LSA R S 40 created a and to PROCEDURAL BACKGROUND Plaintiff Brenda Belihelot filed District Comi the PCF directing LMMA requesting that a a petition writ of mandamus be issued Home be issued declaratory judgment or authority to take a of the scope August declaring that Memorial Medical Center City Medical L L C referred to Hospitals of New mandamus and and the PCF had whether medical Meadowcrest a filed L LC declaratory relief well as lawsuits where either the PCF as similar requested that power panel claim within L L C Tenet Mid LLC hereafter and LifeCare Inc petitions asking or allegations did legal HealthSystem injunctive relief had made detennination that the Katrina related the no Tenet Hospital sought not s during malpractice Chalmette Medical Center Orleans St Rita medical review Hospital Methodist Pendleton a of her mother Several intervenors Inc Pendleton as a d b Plaintiff also 2005 position regarding LMMA Buffman Inc against request contains allegations that present the initiate the medical review to drowning death the surrounding aftermath of Hurricane Katrina in a the PCF by accepting plaintiffs medical review panel request Specifically process for her claimcomplaint Nursing to perform its statutory ministerial duties under the to plaintiff requested that the PCF be ordered panel in the Nineteenth Judicial for in the claims to make a constitute medical malpractice A hearing was held on actions and the request for reserved their relief rights After the to October 11 limited preliminary injunctive later pursue hearing 2006 to the mandamus relief The patiies declaratory and pennanent injunctive the trial court 3 granted all of the petitions for mandamus ordered the PCF LMMA and denied the The PCF discharge its statutory duties pursuant to preliminary injunctive relief appealed arguing that the trial with the LMMA because the PCF had comply claims did not constitute medical ovenuled that determination the LMMA to only applies malpractice The PCF medical s administrative detenninations as comply LMMA Rather nature considered the PCF and the PCF is determining whether a s a medical duties we to claim find that the trial court s make whether as to statutory a or by defined as statute court a the by and clerical in of the order of mandamus no as Thus to adhere to its by the trial it to and detennine whether merely ministerial refusal s instance because the PCF has LMMA authority claim falls under the LMMA legal determinations initial panel request creature of statute malpractice are anted the mandamus relief ordered reasons a to usurp the role attempting intervenors maintain that the PCF wan to make statutory duties regarding medical review panels with its argue that the PCF does not have any properly is that LMMA sufficient for only those rights and responsibilities granted claim is appeal on medical review Plaintiff and intervenors counter that the PCF is such it has that the claims and the PCF has malpractice a it to court had not and the trial main contention whether to ordering ened in initially detennined allegations of medical malpractice under the the PCF to They court implied statutory authority and jurisprudential authority contains the to judiciary by plaintiff and statutory duties For the was following conect in this jurisPludential authority to claim falls within the scope of the ANALYSIS The PCF relies on Pendleton Methodist 2007 WL 2482676 for panel process the LMMA only applies the status Bennett O Brien v Krupkin At the outset v Rizvi we note of the O Brien and Bennett settlement health or 662 668 669 actual 2 no to 3 O Brien a s petition expected 798 So 2d 940 16 10 disagreement with the That line of jurisPludence cases intervene in Hanks v PCF narrow Seale a to merely allows question of the qualification La Contrary whether Lacoste judiciary a s assertions authority implied or claim constitutes medical a sub judice of the many cases cited in where the PCF had failed or statutorily imposed duty and the PCF intervened in the of intervention in the case was one judgment in ordering the its statutory duties However the supreme court s recent decision in when final will render moot the trial court s mandamus order as it peliains to That result is consistent with our reasoning in this opinion because the not the PCF constituted medical care of discharge Lacoste 3 a 904 So 2d 6 17 05 to the PCF that the PCF has the as interpretation lawsuit when there has been 04 1485 898 So 2d at 364 s lawsuit to oppose the fund s coverage under the LMMA The trial court s the instant case specifically mentions the Lacoste case among many when PCF to regarding 898 So 2d 360 and 01 the perform implied process is initiated La or on its panel 4 12 05 determination to fail to it has La jurisprudence holding make claims malpractice 04 2252 our to review Further the PCF maintains that because We note with interest that the Lacoste matter Pendleton was right judgment provider care there is 2 to medical 01 0209 the PCF the limited its determination that malpractice and therefore the medical of the claims before the medical review on relying So 2d La 9 5 07 make initial administrative determinations to statutory authority v evacuate in the wake of Hurricane Katrina properly warranted not was 07 0008 jurisPludential support of do not constitute medical Lacoste supreme court decision recent L L C Hosp of failure to allegations the made the final detemlination malpractice within the meaning The PCF has been providers are statutorily charged qualified under the LMMA 5 as to whether the Lacoste claim of the LMMA with the duty to determine whether health See LSA R S 40 47A 1299 3 a malpractice under the LMMA guided by the holding in Hanks 904 So 2d at 669 found that the intervene and Legislature has appeal a impliedly give that authority qualifications of health medical provider s care See liability court allow the PCF to appeal to Therefore the PCF the issues of to damages excess providers and constitutionality of laws related it may malpractice we are where the supreme expressly to However issue judgment of liability thereby declining s while the PCF may intervene and to a res nova chosen not trial court the LMMA to interpret This is appeal the issue of not LSA R S 44D 1299 40 2 b xii health care Hanks a 904 So 2d at 669 We have well carefully In Lacoste for hospital a Pendleton filed the reviewed the Lacoste decision for plaintiff a not petition evacuate panel before s the LMMA which of commencement LMMA with the not subsequently filed plaintiff in opposition applied concluded that the s of medical review as thus by s a did patiies panel and defined in the of intervention to hospital on The trial comi litigation malpractice petition to the to the comi writs from the trial court a a a claim review Meanwhile the PCF notified the within the scope of medical The PCF Pendleton then care malpractice required as Pendleton exception concluding that the plaintiffs allegations allegations in plaintiff s request for were negligent claim sounded in medical plaintiff s invoke coverage of the LMMA that the to against dilatory exception raising the objection of prematurity falling within the parameters of denied Pendleton civil action a Katrina related failure the basis that the medical review filed guidance align itself prematurity exception appeal fourth circuit for supervisory denial of its plaintiff s allegations 6 exception were The court of medical in nature appeal and fell within the purview of the LMMA and reinstated the trial court Thereafter the supreme denial of Pendleton s the Katrina related death claim in that medical 01 1517 La 125 02 Plaintiff s well as some present in the a 813 So 2d 303 alleged medical particular claim in the malpractice of the other claims outlined medical review a did sound in not v Deno 315 316 panel case before in the intervenors was petitions filed without first in the trial court provider care as us than Lacoste because with the PCF commencing litigation against the health when the PCF made its initial determination that the claim did not Thus sound in medical remedy was to file mandamus and a provide any presented were claimant first filed a in the some same medical care as where the in Lacoste provider filed an exception PCF intervened in the lawsuit to provider by arguing that the claim was not malpractice Unfmiunately discuss the PCF malpractice panel care only of the claims in the intervenors raising the objection of prematurity and the itself against the health decision the for claimants to seek review of manner the health lawsuit parties of its declaratory action against the PCF since procedure On the other hand PCF actions petitions and notified the malpractice the LMMA does not align case completely different procedural posture request for that exception holding s factors set fmih in Coleman malpractice applying the six reversed court and s the supreme authority thereby a refuse to process opinion did lawsuit in order defendant health care decision in Lacoste did s to determine that Likewise the Lacoste intervene in court to provider align on claim request for not was a not question medical medical review discuss the PCF itself with the the 7 a a not s ability plaintiff against of whether the to the claim constituted medical essentially has However in noted impact no footnote a at the the on we believe that the Lacoste decision issue narrow the end of the Lacoste something pertinent to W hether Thus malpractice our opinion the supreme 4 us court decision is case before presently malpractice trial by the trier in one medical or of negligence will ultimately be decided at fact Today we are concerned only with whether the factual allegations contained in the petition as amended assert claims that fall within the purview of the LMMA and therefore must first be presented to a medical review panel under the That a fact finder with more procedures of the LMMA evidence before it may ultimately conclude that the defendant s conduct was medical malpractice does not control our review of the instant exception of prematurity which is as we have explained limited to the factual allegations in the amended pleadings Emphasis added So 2d at Lacoste 07 0008 n We find that the supreme comi of mandamus in the decides whether The 40 41 1299 by LSA a R S before statement in footnote 2 Proceedings seq 40 47 1299 before which malpractice health private governs suppOlis the order It is the trier of fact that us claim sounds in medical LMMA et case s 2 a care ultimately not the PCF LSA R S providers medical review panel are governed provides in pertinent part with emphasis added A All malpractice claims against health care l a shall be reviewed by a providers covered by this Part medical review panel established as hereinafter provided for in this Section 3 It shall be the of the 4 Lacoste would receipt only duty of the board within fifteen by the board were reviewing of the claim be at issue if we days to the ultimate decision of malpractice Contrary to the PCF s asseliions and it is not the question presented in this appeal whether these claims constituted medical this issue was not before the trial comi The sole issue for us to decide is whether the mandamus 8 was proper in this instance Confirm to the claimant by certified mail return receipt requested that the filing has been officially received and whether or not a the named defendant qualified or defendants have under this Part b In the confirmation the claimant to the claimant of the amount of the notify filing fee due and the time frame within which such fee is due to the board to comply filing fee and that upon failure with the provisions regarding the the claim malpractice for request is review and invalid of a without effect and that the request shall not suspend the time within which suit must be instituted all Notify c mail named defendants return qualified by certified receipt requested whether under the not of this Pmi provisions has been made or that a and request made for the formation of filing against them a medical review panel and forward a copy of the proposed complaint to each named defendant at his last and usual place of residence 4 The board shall or his office notify the claimant and all named defendants of any of the following information a The date of receipt of the b That filing fee was due because the claimant timely provided the affidavit set the provisions That the d paid a i No action this Part before to this of timely complied with this Section required filing fee pursuant to against a was not timely this Section health care provider covered his insurer may be commenced in any court claimant s proposed complaint has been or the presented this Section That the claimant has c l by fee no forth in B filing to a medical review Section 9 panel established pursuant statutory language reveals that the quoted A close examination of the which outlines the PCF statute receives request for a discretion LMMA 5 The LMMA is silent health frames that a notifying health parties a care Golden v timely Patient that a claim has been filed and Accordingly 06 1354 PCF mandatory duty to s review See 40 801 La App Fund 463 panel La mi 5053 shall Golden 2 Cir 3 8 06 in act or v a to act is or imposed duties under LSA R S v La 6 2 06 required on to 929 do no the PCF in this 960 So 2d 1063 s we 924 So 2d 459 462 1067 Rather the designed a medical to facilitate find that mandamus a writ denied 1261 10 not Compensation mandatory duty LSA R S 1 Compensation Fund Oversight Bd 40 statute indicates Patient s are request to invoke a ministerial in nature and is Therefore 47A 1299 40 Louisiana Patient when it receives the medical review process The word Bd Oversight writ denied 06 0837 1 Cir 5 4 07 App is clerical s Bosarge Fund the PCF and whether by Id the PCF in nature notifying fee authority or 5 provider and That is all that the PCF is authorized factual scenario adjudicative care 4 timely paid the required filing Compensation s other statutory directive particular not or 924 So 2d 459 1261 2d So App duty regarding panel requests fee is received required filing when the 2 Cir 3 8 06 C C P providers copy of the claim to the health the claimant has 5 purview of the request for the fonnation of a medical review panel has been made forwarding all the PCF giving notice of filing fees within specified time 2 providers 3 PCF give confirming receipt of the claim and the qualifications of the 1 care to any as does not claim falls within the a when it mandatory duties panel medical review a determine whether to other than affirmative and s 06 0837 La 6 2 06 3 was LSA 801 929 La 2d So appropriate in this v Patient 6121 06 6 See case Fund Compensation s 939 So 2d 391 396 Review Panel of Pierson 1275 1276 02 1598 LSA R S 40 whether claim constitutes medical a the PCF lacks See Bosarge is silent La 924 So 2d at 463 In La malpractice in adjudicatory authority the health care providers general rights available constitute to t011 victims its The PCF is a creature of the judgments against health to the statutory maximum 666 The PCF 12 20100 So 2d 6 can Paul 775 430 must be have care greater no Fire in providers Because to determine the LMMA by 656 7 ministerial writ law LSA C CP mis it 01 0220 inter alia mandamus will not lie to of derogation of must be strictly satisfy settlements 100 000 00 up of the by 99 1820 Co writ denied directing in liability the Hanks 904 So 2d at given Jurisprudence routinely recognizes a on to excess 42 1299 status than Marine Ins So 2d 649 duty required by purely So 2d Pierson 845 So 2d at 1276 See LSA R S 40 A writ of mandamus is ministerial 845 panel proceeding provisions Legislature designed only andlor St defined special legislation Estate of Nicks 939 So 2d at 396 v as limitations s construed Boyd Medical 960 So 2d at 1067 It is well settled that since the LMMA qualified authority s medical review a re 855 So 2d 324 the PCF to as 1 Cir App 5 9 03 1 Cir App 10 10103 La Estate of Nicks 05 1624 Bd Oversight Golden writ denied 03 1559 47A 1299 960 So 2d at 1067 Bosarge La La that 3 App 3 23 01 the Cir 788 rights and officer to perform a 3861 3863 The prescribed duty compel performance of an act that a public Legislature The 2d So at 462 contains any element of discretion however slight Golden 924 the doing of a specific thing it proper function of the writ of mandmTIus is to compel Id Nothing can be inquired into but the must indicate the precise thing to be done question of duty on the face of the public officer is charged to perfOllli Oversight Bd 7 05 1624 La The LMMA defines App statute and the ministerial character of the Estate of Nicks 1 Cir malpractice 21 6 06 v Patient 939 at LSA R S 40 11 2d So s duty Compensation 391 396 41A 1299 8 the Fund of the PCF obligations limited are to those expressly proscribed in the LMMA statutory authority when it made We find that the PCF exceeded its determinations that the claims legal adjudicative malpractice claims 668 unless Felix 1985 settlement a or judgment v determinations position See Hanks 904 So 2d at 477 So 2d 676 Co 458 La 44A l299 statutory authority under LSA R S 40 that medical adversarial an not were economic exposure in these Kushner 449 So 2d 455 and manage the fund protect no is involved Marine Ins St Paul Fire v and Williams PCF has the PCF assumed so We reiterate that the PCF has prematurely cases doing In issue at b in regarding whether claims sound defend to making legal does not involve duty La While the 1984 5 680 negligence or medical malpractice The accept a legislature clearly did request for determination malpractice that a grant the PCF the right review that the claim did not panel meet s requesting lawsuit to file the claim commenced as a at s place to assert medical It act malpractice to file a lawsuit as a Similarly it is the healthcare provider s choice in a the medical review presented to a The adversarial claimant and the to unilateral malpractice panel process or raise the issue that the claim sounds in medical first be 904 So 2d to decline definition of medical the Likewise it is not the PCF choice whether to based upon its claim does not fall within the scope of the medical negligence action must medical under the LMMA is the claimant action a not qualified medical review patiies in health care 667 Golden 924 So 2d the provider at 463 464 12 panel malpractice before The PCF is is litigation panel proceedings not the PCF and are the See Hanks simply not an interested patty in these judgment care or until there has been matters for the limited purpose of litigating the provider or the constitutionality of a Hanks 904 So 2d at 668 669 function of the The settlement qualification law related to medical of a or health malpractice interpretation of the LMMA is purely a judiciary and the judiciary alone will determine whether claims fall within the scope of the LMMA unless the authorize appropriate to a some other Legislature deems it entity to make that determination CONCLUSION The PCF has out its overstepped mandatory clerical the LMMA Therefore in this We case Patients all costs of this appeal legislative authority and has and ministerial duties that the trial comt hereby Compensation its properly affirm the trial court Fund Oversight in the amount of Board are clearly not calTied set fOlth in issued the mandamus order judgment the PCF 8 is The Louisiana hereby assessed 1 358 00 AFFIRMED 8 As noted infra at footnote 2 the supreme comi s ruling in the Lacoste decision relief in once final renders that portion of the trial comi s judgment granting mandamus the Lacoste matter moot 13

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