Paula Boutte VS Mark Meadows, M.D. and Opthalmic Mutual Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF L JUISIANA COURT OF APPEAL FIRST CIRCj? IT i( N0. 2013 CA 1189 r PA. l B t,?TE T VERSUS MARK MEADOWS, M.D. AND OPTHALMIC MUTUAL INSURANCE COMPANY Judgment Rendered: B 1 8 On Appeal from The 19`h Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana Trial Court No. C565252 The Honorable Frank Foil, Judge Presiding Ray Orrill, Jr. Bobby Ray T. Malbrough R. Attorneys far Plaintiff/Appellant, Paula Boutte New Orleans, Louisiana David C. Bolton William C. Rose, Jr. Attorneys for Defendants/ Appellees, Louisiana Patient' s Compensation Baton Rouge, Louisiana Fund and The Louisiana PatienYs Compensation Fund Oversight Board BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ. G Gti C Gt wb ¢.+ N. i i' 1, P/, I, p ¢u. 0, CRAIN, J. The plaintiff appeals a malpractice suit. leclaratory jadgment rendered in a medical We hold that the certification of the judgment as final and appealable pursuant to Louisiana Coda of Civil Procedure article 1915B( 1) was improper and dismiss the appeaL FACTS AND PROICEDURAL HISTORY Paula Boutte filed this proceedipg against Mark Meadows, M.D., and his insurer, Ophthalmic Mutual Insurance Company, based upon allegations that Dr. Meadows breached the standard of care by failing to properly diagnose, evaluate, and treat Boutte for laser assisted in situ keratomillus (" LASIK") eye surgery. Boutte' s petition asserts that she sus tained damages as a direct result of Dr. Meadows' negligence, including but not limited to physical pain and suffering, mental anguish, permanent physical c isability and/ or severe impairment of her vision, past and future medical expenses, and loss of income and earnings capacity. Prior to trial, Boutte settled her c aims against Dr. Meadows and Ophthalmic Mutual Insurance Company for $ 100, 000. 00 plus interest. Pursuant to Louisiana Revised Statute 40: 1299. 44C, Boutte then filed a petition with the trial court seeking approval of the settlement and demanding payment of damages from the Patient' s Compensation Fund (" PCF") in excess of the settlement amount. After the PCF filed an answer to the petition for approval, the trial court held a hearing and entered a judgment approving the settlement and ordering that the matter proceed in accordance w th the provisions of the Louisiana Revised Statutes 40: 1299. 41, eP seq. (" MedicaI Malpractice AcY'). Pursuant to a joint motion to dismiss, the trial court then entered an arder recognizing that Dr. Meadows and Ophthalmic Mutual Insurance Company shall have no further liability to Boutte The " Louisiana Patient' s Compensation Fund and the Louisiana Patient' s Compensation Fund Oversight Board through the nominal defendant, Dr. Mar[ k] Meadows," appeared as the parties of record and wi11 be collectively referred to herein as the " PCF." 2 upon payment of the settlement am unt and that Boutte was reserving her rights against the PCF. The order of dismissal also recognized that the liability of Dr. Meadows was admitted and estaY lished by payment c f the $ 100, 000.00, which is in accord with Louisiana I evised Statazte 44: 1299. 44C( 5)( e). In the absenc of an agreement with the PCF as to the extent of its liability, the Medical Maipractice the merits to determine ct requires tl at Boutt' s claim ne t prc ceed to a trial on what amount, if any, she is entitled to recover from the PCF in excess of the amount paid by Dr. Meadows and his insurer, subject to the 500, 000.00 statutory limit or " cap" of liability for certain damages set forth in the 2 Medical Malpractice Act. However, prior to trial, Boutte filed a " Petition far Declaratory Judgment" in this proceeding, alleging that she was " entitled to three statutory caps" in her claim far damages against the PCF because the three LASIK surgeries performed by Dr. Meadows on Boutte each constituted a different act of malpractice. Boutte requested that a " trial for a declaratory judgment be set and a judgment be rendered . . . declarir.g that under La. R.S. 40: 1299. 42( B) and Louisiana law, [ Boutte] is entitled to three statutory caps for the multiple acts of negligence by Dr. Mark Meadows . . . ." z Following a settlement between a claimant and a qualified health care provider or his insurer, the " trier of fact shall determine, at a subsequent trial . . . the amount of claimant' s damages, if any, in excess of the amount already paid by the insurer of the health care provider or selfinsured health care provider," and the trier of fact " shall determine the amount for which the fund is liable and render a finding and judgment accoxdingly." La. R. S. 40: 1299. 44C( 5)( a). The cap" is set forth in Subpart 4Q: 1299. 42B, which provides that the " total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits . . . shall not exceed R. S. 40: 1299. 42B( 1). amount in excess five hundred thousand dollazs plus interest and cost." La. A qualified health care provider under this Part " is not liable for an of one hundred thousand dollazs plus interest . . . and costs . . . for all malpractice claims because of injuries to or death of any one patient." La. R,S, 40: 1299. 42B( 2). Any amount due from a judgment or settlement that" is in excess of the total liability of all liable health care providers . . . shall be paid from the patienYs compensaiion fund," subject to the total limit of liability set forth in Subpart 1299.42B( 1). La. R.S. 40: 1299.42B( 3)( a) and( b). 3 The trial to on July d i a 8; 2 and relevance damag of a- d v b a ch ff r the gn riks of ilr 1, the bench trial, Boutxe testifiec injuries t- trial e inriing on March 7, 013, idavr. fc r de; l at ary uc amer' a, and a five- day jury- trial th adjudicate beginning court assi her s. bout her treatmen with Dr. Meadows and her V6' tien tla.e tt iai medical damage ciaim against Yhe PCF. At expezises court e a. as ed Boutt' s counsel about the the declaratqry judgment, her counsel t clarified that the evidence was presented f" r the purpose of proving " different o elements of damages related to each act." Boutte also presented testimony from her mother and one of her treating physicians, Dr. David Dragon, along with deposition testimony from Dr. David Mark (an expert retained by Boutte) and Dr. William Perez, a member of the medical review panel that reviewed the claim. Boutte also introduced documentary evidence that included the medical review panel opinion and volumes of inedical records and expenses. Counsel for the PCF cross- examined Dr. Dragon but did not cross- examine Boutte or her mother, stating that the PCF " was going to reserve our questionings to [ the] case in chief at trial." The PCF called no s=itnesses arfd did not introduce any documentary evidence. After taking the matter under advisement, the trial court issued written reasons for judgment tinding tkiat the thz ee operations performed by Dr. Meadows were not separate and distinct tuu-elated acts of malpractice which would trigger three separate caps." A judgmen was ned that denizd the " motion for sig, declaratory udgment" and declared Yhat the " p1 znYiff is ntitled to recover one cap." The judgment further provided that it was a " final judgment as contemplated by . . . Louiciana Code reason stated for that delay." she was of Civil Procedure Article 191SB( 1), there being no just Boutte filed a motion for devolutive appeal but incorrectly appealing a judgment that " dismiss[ ed] plaintiff' s case." On appeal, Boutte asserts that the trial court erred when it " awarded only one cap." a However, before addressing the raerits c f thc app al, we mu t first determine whether this court kaas subject riatter yu: isdictr`_ a to revaew he judgment on appeal. o SUBJECT M TTER JURISDICTION FOR APPEAL Appellate courCs have the duty to examine subject matter jurisdiction sua even sponte, wheil the parties do not raise issue. the State, Department of Transportation and DevelU mert v I" nderson, (J9- 2212 ( La. A ap. 1 Cir. 5/ 7/ 10), 39 So. 3d 739, 7 1, N1cGehee v Cttyr'Far sh of E st 3aton Rouge, 00- 1058 ( La. App. 1 Cir. 9/ 12/ O1), extends to " 809 So. 2d 258, 260. final judgments." This La. Code Civ, Pro. court' s art. appellate 2083; I jurisdiction an ex rel. White v. Davis, 00- 0206 ( La. App. 1 Cir. 2/ 16/ O1), 808 So. 2d 478, 483. A judgment that determines the merits in whole or in part is a final judgment. La. Code Civ. Pro. art. 1841. A declaratory judgment has the force and effect of a final judgment or decree and may be reviewed as other arders, judgments, and decrees. La. Code Civ. Pro. arts. 1871 and 1877. However, a judgment that only partially determines the merits of the action is a partial final judgment and is appealable only if authorized by Louisiana Code of Civil Procedure article 1915. Rhodes v. Lewis, 01- 1989 ( La. 5/ 14/ 02), 817 So. 2d 64, 66. The principal claim pending in this pr ceeding is Boutte' s demand against the PCF for an award of damages in excess of the amount of the settlement with Dr. Meadows and his insurer. The judgment at issue did not address the damage claim and, instead, was limi ed to denial a of the " motion for declaratory judgment" and a- declaration that the " plaintiff is entitled to recover one cap." While the judgment adjudicated the claims contained in the petition for declaratory judgment, that petition set forth only a portion of the claims at issue in this matter. The judgment did not determine the merits of all of the claims pending in the case and, therefore, constitutes a partial judgment that is appealable only if authorized by Article 1915. See Best Fishing, Inc. v. Rancatore, 96- 2254 ( La. App. I Cir. s 12/ 29/ 97), 706 So. ud 161; 1b5 ( ud zn nt in the nature of a declaratory judgment was partial j adgment w,here zt resnlved the issues res but did not resolve Successic n vf declaratar of ( La. six presented by tl e orz inal pe4itory action petition); Brantley, 96- 1 7 ( L a. Ap. i ' ir, 6/ 20/ 97), 697 S a. 2d 16, 18 au mexit renciered in prc bat px ce: d'rng did nat deterrnine the merits the case); n. l i the ted by an amended petition see ad r cddy ., S czt aa°r9i' zr^e anr Casu lty Compuny, 09- 0874, App. 1 Cir. 12/ 23149j 2009 WL 4983596 ( unpublished opinion) declaratory judgment determining plaintiffls rights under a stipulation in personal injury suit could be reviewed on appeal of subsequent final judgment that dismissed the case because the declaratory judgment did not resolve all outstanding issues, including the merits or value of the plaintiff' s claims). Whether a partial judgment is immediately appealable is determined by examining the requirements set forth in Article 1915. Henderson, 39 So. 3d at 741. Pursuant to Subpart A of Article 1915, a partial judgment is a final judgment if it: 1) Dismisses the suit as to less thara all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors. 2) Grants a rrfotion for judgnnent on the pleadings, as provided by Articles 965, 968, and 969. 3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966( E). 4) demand, Signs a judgment on either the principal or incidental wh n Article 1038. 51 the vo have been tried separately. as provided by Signs a jndgment on the issue of Iiability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury. 6) Imposes sanctions or disciplin ry action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510( G). 6 A artial j final judgment designation of adgmez s ts vithin one t tl a bject t imm f nality L y tebe i: e ap f t iese enumexated categori; s is a zh rt the ne essity eaS La: Coae Civ. Prc. courY. art. 1911. of any A partial judgment that is not ia-taluded 'an one UY' xh se s;a egoraes is not a final judgment it unless is roperly desa naz d as "# nal" by the cour after an express determination that there is nca just reasan for deiay. La. Code Civ. Pro. arts. 1911 and 1915B( 1). Article 1915 attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. R.J Messinger, Inc. v. Rosenblum, 04- 1664 ( La. 3/ 2/ OS), 894 So. 2d ll 1 3, 1122; Henderson, 3' So. 3d at 741. The judgment declaring that only one " cap" appiies to Boutte' s claim against the PCF does not fall within any of the categori s identified in Subpart A of Article 1915. The judgment did not dismics the suii as to any party, nor did it grant a motion far judgment on the pleadings or a motionl for summary judgment. The judgment also did not pertain to an incidental dema#d that was tried separately, as the petition for declaratory judgment was not an incidental demand. See La. Code Civ. Pro. art. 1031 ( defining incidental demiands as " reconvention, cross- claims, intervention, and t the demar c` against kaird- parties").- The judgm nt lik wise did not adjudicats the issue of liability an l did n«t impose sancti4ns or disciplinaryaction. Therefore, this court' s jurisdicYion depe c s upon whether the judgment was properly designated as a fmal audgriaent puxsuant to Sul part B( 1) of Article 1915. See La. Code Civ. Prea., rts. 1911, 1915B( 1), and 2083. The trial court gave no explicit reason: for its determinatien that n just reason for delay existed, so we review that determination on a de novo basis. R.J. Messinger, Inc., 894 So. 2d at 3 The " Petition fox Declaratory Judgment" was filed by Boutte in the existing proceeding and is more akin to an amended petftion or, as characterized in the judgment, a motion, Sea La. Code Civ. Pro, arts. 961 and 1151. 7 I 122; HendErson. s overriding inqui.ry" 3c at. ' 41. I S. o1F " wl ether conci cting this review, we consider the ere is io j st reason ic r delay," as well as the other non- exclusii e arit ria xrfl l ca urrks skould use in naking the determination of whether certifieaxb a i.s a,p re rriafea s hic i n laxcie; ,( 1) t1 re9a2iora: hi between the adjudicat c d the ar? dd unadjaadic. c1 im. ; 2 tEse petisability *,k a4 he need for review might or n:ighi xiat , e nnoc+ teci y kctr zre du elopx;i nts i the t strict court; 3) the possibility that the revieLVir g cour4 anight be obliged to consider the same issue a second' tyme; and (4) miscellara.eous facts such as delay, economic and sUlvency cc nsiderations, shortening the zme of t ial, frivolity of corrApeting claims, e pense, and the 1ike. R.J. ?lessinger, Inc., A94 So. 2d at 1122- 23; Henderson, 39 V So. 3d at 741- 742. fihe adjudicated claim is limited to the number af inedical malpractice caps that apply to Boutte' s action against the PCF; however, her claim for damages against the PCF vvas not adjudicated by the judgaa ent. The PCF contesYs Boutte' s damage claim and denie that any sums are owed over and above the sttlement am ount. 4 The igni cance of the numb r o ati-ail ble caps arises only if Boutte obtains a judgment on t1 e merits in excess of fiie hundred thousand dollarc plus interest and cosis, exclus ve u R. S. 44: 1299. 42 the anct fufa re xnedical care La. It.S. 4r0:' i?' 9. 4. applicabilit%of mulfipl caps to ner c1ai, and related benefts. See La. If she fails to obtain s ich a udgrnent, rll be a moot issue, and any opinion from this court in that regard u ouid be advis ry in nature. Furthea-more, a review of the judgment by this court at the present time would not shorten the time of the trial on the merits of the damage claim nor reduce the expense of the trial. Regardle s of the outcome of the appeai, Boutte will st l be rec ubre to prove the amou:zt of her damages caused by the rb gli emce o f Dr. Meadov- s. Acce rding te Y1ie par'cies' briefs and oral azgumarrts herein, the trial on the maerits of the damage claim has not yet oecurred. 8 The jurisprudence cited bv th naart% d essin the " multiple cap" issue es further demonstrat; s tflie ne d f r a jud ne t n the m zxs af tl daniage claim to support an appeal of the d claratory jv cign ent renc red h.erein, as ach of the cited cases consi been hether rnulti+le e ps ppl e e: ed randered o tl e me' 0232 ( La. 11/ 19/ 99), multiple caps 7 e its a c; laim rxjter a judgment had IiutsQn b: S dt 49, 953 So. 2 Ltivas,iana tifedieal trza enter, 99- court awarded damages for onerty v. Stc te, 97- 0871 ( La. ?I8/ 98), 71 to the plaintif; 709, 714- 71;5 ( trial x court reduced its damage award fdr wrongful death So. 2d and survival action to one cap); Turner v. Massiah, 94- 2548 ( La. 6116/ 95), 656 So. 2d 636, 638 trial coart' s judgment on jury verdict awarded daanages under two medical malpractice caps); Sin er v. .I rrott, 08- 1562 ("La. App; 1 Cir. 7/ 29/ 09 j, 2009 WL 2252330 ( unpublished opinion), writs aenied, Q9- 2230, 09- 2233 ( La. I/ 0$/ 10), 24 So. 3d 873, 874 ( trial court awarded damages under rr ultiple caps). Based upon our de novo review, we hold that the trial court erred in certifvi_ ng the judgment as a nal ud nent pursuan. to t Article 1915B( 1). cordingly, this court lacks jttrisdiction to consider thz appeai. See La. Code of Civ. Pro. arts. 1911 anci 2083; Henderson, 39 Sca. 3d at ? 42. This court has the discretyon to convert an appeal to an application far supervisory writs and rr.ile on the merits of the application. Stelluto v. Stelluto, OSOD74 ( La. 6/ 29/ f 5), 914 So 2d 3, 39. Hoavever, there are iimitations on this granti of authority, as set_farth in tP e'jurispr dence. Best Fi hang, Inc., 7 6 So. 2d at 166. In Herlitz Constructipn Company; Ine. v: Flo el Inr% estbrs of New Itieria, Inc:, 396 So, 2d 878 ( La. 1981), the Louisiana Supreme Cauz t directed appellate courts to consider an application for supervisory writs under their supervisory jurisdiction, even though relief may be ultimateYy available to the applicant on agpeal, when the trial court jndgment was arguabiy incorrect, a revetsal would terminate the 9 litiga aon ( in also in wr ole or ng, l Best Fzs ac., 7U ther ai, aa, dAspu wa of faat, to be resolved. See 2d a± . 66 1fi7. S. We decline to c.onv rt this matter to aai pp licatian for supervisory writs. A reversal of tthe trial aurt' s ju dgn ent vvould n t terminate the li igation, zn whole or in part, r cause the triai coazrt has not determined what amount of damages, if any, is Boutte Go reco Untitled Si` o e a. tk e T er ore, the gran?ing of a writ I' C . application will not termiri te the litigation at tltis tir, e, and the parties haye an n adequate remedy by review on appeal Angelos v> Ruc.k.rtahl, 12-0202 ( La. unpublished Com aa r a$ er pp. 1 a final jadgmenti is ir. 9/ 21/ 12), rendered. See 2012 VVL 4335440 opinion); Texas Gas Explor tion Cor aoration v. Lafourche Readty y, Inc., .l1- 0520 ( La. App. 1 Cir 1 1' 9/ 11), ' 9 So. 3d 1054, 1063, writ denied, 12- 0360 ( La. 4/ 9/ 12), 85 So. 3d 69 . CONCLUSION Because the trial court improperly designated the partial judgment as a final judgment pursuant dismiss the assessed to appeal t Louisiana Code for lack o ¬ Civil Procedure f app fllate jtarisdiction. article 1915B( 1), All ca sts o£" Lhe appeai are outte, arbd w re nanc! trifls mafter aca the tr ai cauirt for preceedings. APPEAL VIISSEI) /' V"D DIS_ ASF; REM1'IAIYDEDe io we PAULA BOUTTE NO. 2013 CA 1189 FIRST CIRCUIT VERSUS COURT OF APPEAL MARK MEADOWS, M.D., ET AL . STATE OF LOUISIANA WELCH, J., concurs. I concur in the opinion; however, I write separately to express my belief that the trial court clearly erred in applying a single statutory cap under the facts of this case.

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