Dunn v. BryantDunn v. Bryant
The plaintiffs appeal from a district court judgment sustaining the defendants’ dilatory exception raising the objection of prematurity in this medical malpractice action. For the following reasons, we affirm.
Facts and Procedural History
Dr. Sydney L. Bryant (“Dr.Bryant“) was employed by the Stanocola Medical Clinic (“the Clinic“) prior to his death. Dr. Bryant obtained professional liability insurance in the form of a claims-made policy issued by Louisiana Medical Mutual Insurance Company (“LAMMICO“). LAMMICO also acted as an agent for the Patient‘s Compensation Fund (“PCF“) with respect to the collection of the annual PCF surcharge assessed in accordance with
By letter dated June 23, 1995, the Clinic notified LAMMICO that Dr. Bryant had died
On October 31, 1995, Clovis Dunn (“Dunn“) filed with the PCF a complaint of medical negligence against Dr. Bryant and various defendants regarding the December 1994 treatment of his wife, Gwendolyn Dunn. By letter dated November 16, 1995, the PCF notified Dunn that Dr. Bryant was enrolled in the PCF, had insurance with LAMMICO, and had coverage for the period from January 1, 1994, through March 16, 1995. On March 4, 1996, Dunn, individually and as natural tutor of his two minor children, filed a negligence action in district court against LAMMICO and Linda Frazee Bryant (“Ms. Bryant“),1 administratrix for the estate of Dr. Bryant, seeking damages for the death of his wife which allegedly occurred as a result of Dr. Bryant‘s professional negligence.
Ms. Bryant and LAMMICO responded by filing an exception raising the objection of prematurity. Essentially, they asserted that Dr. Bryant was a qualified health care provider and that Dunn‘s action against him is governed by the Medical Malpractice Act,
In written reasons, the district court sustained the exception raising the objection of prematurity, finding that LAMMICO provided insurance coverage to Dr. Bryant for any claim made from a medical incident occurring between July 1, 1986, and March 16, 1995, that Dr. Bryant was a qualified health care provider at the time this claim was filed, and that Dr. Bryant‘s succession was covered by the Act since Dr. Bryant would have otherwise been covered, except for the fact that he was now deceased. Dunn appeals the district court‘s judgment sustaining the exception of prematurity and dismissing his petition.
On appeal, Dunn argues the Act does not permit a physician‘s estate to be a “qualified health care provider” and that coverage under the Act is afforded to a qualified health care provider under a claims-made policy only when the insurance policy is in effect and the PCF surcharge is paid, both at the time of the alleged tort and at the time the claim for malpractice is made.2 Thus, because the surcharge was not paid at the time the claim was made, he submits this lawsuit is not premature even though the claim was not previously reviewed by a medical review panel. Dunn seeks to have the judgment sustaining the exception of prematurity reversed.
Standard of Review
As the facts are not disputed with respect to this appeal, the issue before this court is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply review of
Prematurity
The Act provides such a mechanism in that it requires all medical malpractice claims against covered health care providers to be submitted to a medical review panel prior to filing suit in any court.
Medical Malpractice Act
The Louisiana Legislature enacted the Medical Malpractice Act in 1975 in response to a perceived medical malpractice insurance “crisis.” Hutchinson, 637 So.2d at 419. The legislature intended the Act to reduce or stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public. Hutchinson, 637 So.2d at 419. To those ends, the Act confers upon qualified health care providers two principal advantages in actions against them for malpractice. First, the liability of a qualified health care provider for all malpractice claims for injuries to or death of any one patient may not exceed $100,000, and the total amount recoverable from all defendants and the PCF for all malpractice claims for injuries to or death of any one patient, exclusive of future medical care and related benefits, may not exceed $500,000 plus interest and costs.3
Health care providers may take advantage of these benefits only if they qualify under the Act by maintaining specified basic malpractice insurance or evidence of financial responsibility and by contributing a surcharge to the PCF. See Sewell, 600 So.2d at 578. These benefits are bestowed on health care providers for as long as they remain qualified under the Act. See Sewell, 600 So.2d at 578; see also
a person, partnership, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, community blood center, tissue bank, dentist, registered or licensed practical nurse, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C.A. § 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or an officer, employee or agent thereof acting in the course and scope of his employment.
In the instant case, Dunn does not dispute that Dr. Bryant was a “health care provider” under
The following articles of the Louisiana Code of Civil Procedure set forth the pertinent law with regard to the proper party defendant in a suit filed against a succession.
Except as otherwise provided by law, including but not limited to Articles 2641 and 2674, the succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.
The succession representative shall defend all actions brought against him to enforce claims against the succession, and in doing so may exercise all procedural rights available to a litigant.
The petition alleges a cause of action against Dr. Bryant, but names Ms. Bryant as a defendant in her capacity as the succession representative of Dr. Bryant‘s estate. The alleged negligent acts were committed by Dr. Bryant while he was practicing medicine. Except for his death, Dr. Bryant would have been the proper party defendant in an action for any such medical negligence.
To be qualified under the provisions of this Part [the Medical Malpractice Act], a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section. (2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
Thus, to qualify, a health care provider must file the type of proof of financial responsibility described in Subsection “E” of
On the date of the alleged malpractice in December 1994, Dr. Bryant had insurance with LAMMICO on a claims-made basis and LAMMICO had accepted payment of the annual PCF surcharge for 1994. Furthermore, payment of the annual PCF surcharge for 1995 had been accepted by LAMMICO and premium payments for that calendar year were current at the time of Dr. Bryant‘s death on May 28, 1995. Therefore, it is clear that Dr. Bryant was a qualified health care provider from the time of the alleged tort to the moment of his death.
Subsequent to Dr. Bryant‘s death, Dunn argues Dr. Bryant‘s qualification ceased once the PCF refunded the surcharge for the remainder of 1995. We must now determine if the requirements for qualification were satisfied after Dr. Bryant‘s death.
Generally, coverage under a claims-made policy is effective only if the negligent harm is discovered and reported within the policy term.6 See Livingston Parish School Board v. Fireman‘s Fund American Insurance Company, 282 So.2d 478, 481 (La.1973); Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir. 3/27/97), 691 So.2d 1355, 1359. To maintain coverage upon termination of a claims-made policy, a health care provider is required to obtain additional insurance coverage for the negligent harm that occurred within the policy term, but was not discovered and reported until after the claims-made policy terminated. This is generally known as tail coverage.
Provision “o” of the “Conditions” section of Dr. Bryant‘s claims-made policy stated:
The period for reporting medical incidents which would have been covered under this Policy shall (without payment of additional premium) be extended forever if all charges due the Company have been paid and if the insurance provided to the insured ends due to:
(a) The insured‘s death, legal incompetence; or
(b) The insured‘s permanent total retirement from the practice of medicine either:
(1) After age 50 and 10 years with the company; or
(2) As a result of permanent disability.
The Company shall have the right to verify any claim of retirement or disability by examining the insured or the insured‘s records.
Dr. Bryant ceased practicing medicine after March 15, 1995, due to permanent disability, and he died on May 28, 1995. Pursuant to the quoted provision, Dr. Bryant‘s claims-made policy ended on March 15, 1995, and an extended reporting endorsement was issued effective March 16, 1995. In accordance with the policy provision, LAMMICO waived payment of the premium that would have otherwise
With respect to the requirement for payment of the surcharge, we note the mandate of
Dunn argues the PCF did not have authority to waive the statutory requirement that a health care provider pay a surcharge to qualify under the Act.
The evidence reveals the PCF did just that. Richard L. Nauman, LAMMICO‘s director of underwriting and marketing, testified that the PCF had a rule that followed the same procedure as LAMMICO‘s extended reporting endorsement, which converted PCF‘s coverage from a claims-made type to an occurrence type without charge in the event of permanent disability or death.
After carefully reviewing the entire record in this matter, we conclude the district court did not err in finding that the alleged malpractice of Dr. Bryant was covered by the Act when the complaint was filed with the PCF on October 31, 1995. As such, Ms. Bryant and LAMMICO proved they were entitled to have Dunn‘s claim evaluated by a medical review panel. Therefore, we conclude the district court was legally correct in sustaining the dilatory exception pleading the objection of prematurity.
Decree
For the above reasons, the district court‘s judgment sustaining the exception of prematurity is affirmed. Dunn is cast for all costs of this appeal.
AFFIRMED.