Horil v. ScheinhornHoril v. Scheinhorn
Ferdinand J. HORIL, Jr.
v.
David SCHEINHORN, M.D., et al.
Supreme Court of Louisiana.
Gregory Carl Weiss, Stephen Robert Barry, Weiss & Eason, New Orleans, for Applicant.
John Joseph Jackson, III, Jackson & Stovall, Metairie, for Respondent.
Stewart Earl Niles, Jr., Patricia Anne Bethancourt, New Orleans, for Risk Management Division of Administration, Amicus Curiae.
*698 HIGHTOWER, Justice Pro Tem.[*]
After the Fifth Circuit Court of Appeal reversed a district court dismissal of this medical malpractice suit, the Louisiana Patient's Compensation Fund ("the Fund") sought a writ of review. Having granted the application, we hold that a claimant expecting excess reсovery from the Fund must closely follow
FACTS AND PROCEDURAL HISTORY
On December 11, 1981, Ferdinand J. Horil, Jr., instituted a malpractice action against David Scheinhorn, M.D., Gerald Broussard, M.D., Ochsner Clinic, and the Alton Ochsner Medical Foundation. His petition sought damages based on an alleged negligent misdiagnosis and failure to warn of the dangerous nature of prescribed treatment.
Approximately four years later on October 10, 1985, acknowledging that he had no cause of action against the named physicians, Horil voluntarily dismissed these two parties with prejudice. At his request on that same date, the trial court also approved plaintiff's $100,000 settlement and dismissal with prejudice as to Ochsner Clinic and the Alton Ochsner Medical Foundation, while "reserving unto plaintiff his right to proceed further against [the Fund] under ...
Thereafter, for almost seven years, no further filings or other court activity appeared of record. Still, on April 16, 1992, Horil filed a first supplemental and amending petition seeking to add the Fund as a party defendant. Noting that he hаd previously settled his claims with the original defendants who had been qualified health care providers, Horil now professed a right to proceed directly against the Fund. That statutory entity initially countered with a motion to dismiss on grounds of abandonment, La.C.C.P. art. 561, which both the trial court and the court of appeal eventually rejected.
Subsequently, the Fund assertеd in a peremptory exception that, after failing to adhere to the requirements of
DISCUSSION
The court of appeal, relying on
In resolving the issues presented, we are confronted with the detailed provisions of *699
The respective amounts recoverable by a plaintiff under the Medical Malpractice Act,
In the event that a partial settlement is executed between the defendant and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less, written notice of such settlement shall be sent to the board. Such settlement shall not bar the continuation of the action against the patient's compensation fund for excess sums in which event the court shall reduce any judgment to the plaintiff in the amount of malpractice liability insurance in force as provided for in R.S. 40:1299.42(B)(2).
Consistent with the abоve noted title, this particular subsection directs that the Fund receive notice of, and appropriate credit for, any partial settlement reached between the health care provider and the malpractice claimant. Thomas v. Ins. Corp. of America, 93-1856 (La. 02/28/94),
Recently, in Russo v. Vasquez, 94-2407, pp. 5, 6 (La. 01/17/95),
In the case sub judice, by viewing Horil's 1985 settlement as not then implicating the Fund and as being narrowly controlled by
Plaintiffs argue that, inasmuch as the Fund may not contest a health care provider's liability when there has been a settlement of exactly $100,000, see Russo, supra, the sole purpose of heeding
Absent careful compliance with
Plaintiffs and the court of appeal also rely on "common practice" in defense to Horil's failure to comply with
First of all, custom obviously does not abrogate legislation. La.C.C. art. 3. Beyond that, our review discloses that none of the indicated decisions directly address what procedure a claimant must follow in making a post-settlement demand against the Fund, or discuss in detail the method utilized to bring the Fund into any of these proceedings. Indeed, in Prince, supra, the plaintiff seemingly followed the procedure contemplated by
Plaintiffs accepted the [tendered $100,000] settlement [from one of the qualified health carе providers] and reserved their rights to proceed against the Louisiana Patient's Compensation Fund. In a pleading styled "Joint Petition for Court Approval of the Settlement of a Medical Malpractice Claim and Claimant's Demand for Payment of Damages from the Patient's Compensation Fund" plaintiffs averred that they and the Commissioner of Insurance [presently the Oversight Board] were unable to agree on the amount of excess damages to be paid out of the Louisiana Patient's Compensation Fund, and, accordingly, sought judicial determination of such amount.
While it is true that the claimant and the health cаre provider (or his insurer) will normally agree on the terms of the compromise prior to the Fund's involvement, when the settlement is submitted to the court for approval, the Fund must at that time be afforded notice and the opportunity to participate, if the claimant expects to seek excess sums. Here, despite, in October 1985, expressly reserving his right tо proceed against the Fund specifically under portions of
CONCLUSION
According to the provisions of
CALOGERO, C.J., concurs and assigns reasons.
WATSON, J., concurs and assigns reasons.
CALOGERO, Chief Justice, concurring.
I respectfully concur in the judgment reversing the court of appeal and reinstating the district court's judgment dismissing plaintiff's claim. I agree with the essential holding, applying
First, I have a problem with the majority's concern "for fiscal stability within the Fund." The state does not appropriate money for the Fund. If the Fund becomes insolvent, the state is not responsible for the Fund's obligations. Instead the claimants suffer the loss or delay in receipt of payment.
Second, I am not willing to state that a claimant's failure to strictly adhere to the rules set forth in R.S. 40:1299.44(C) automatically costs him his right to pursue the Fund. I would leave for another day the case in which a claimant's tardiness in acting spans а very brief period as opposed to seven years as in this case.
WATSON, Justice, concurring.
Since the Patient's Compensation Fund had actual notice of Horil's settlement with the health care providers, I concur in the result solely because the seven-year delay in impleading the Fund was excessive.
NOTES
Notes
[*] Judge Lemmie O. Hightower of the Court of Appeal, Second Circuit, sitting by аssignment in the vacancy created by the resignation of Dennis, J.
Lemmon, J. not on panel. Rule IV, Part 2, § 3.
[1] After Horil's death, his family members substituted themselves as plaintiffs in a petition dated September 27, 1993.
[2]
C. If the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient's compensation fund for a complete and final release, then the following procedure must be followed:
(1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agrеed settlement, if any, and/or (b) demanding payment of damages from the patient's compensation fund.
(2) A copy of the petition shall be served on the board, the health care provider and his insurer, at least ten days before filing and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amоunt demanded.
(3) The board and the insurer of the health care provider or the self-insured health care provider as the case may be, may agree to a settlement with the claimant from the patient's compensation fund, or the board and the insurer of the health care provider or the self-insured health care provider as the case may be, may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the petition is filed.
(4) As soon as practicable after the petition is filed in the court the judge shall fix the date on which the petition seeking approval of the agreed settlement and/or demanding payment of damages from the fund shall be heard, and shall notify the claimant, the insurer of the health care provider or the self-insured health care provider as the case may be, and the board thereof as provided by law.
(5) At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider as the case may be, may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the board, the insurer of the health care provider or the self-insured health care provider as the case may bе, and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, then the court shall determine the amount of claimant's damages, if any, in excess of the amount already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and render a finding and judgmеnt accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
(6) Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.
(7) For the benefit of both the insured and the patient's compensation fund, the insurer of the health provider shall exercise good faith and reasonable care both in evaluating the plaintiff's claim and in considering and acting upon settlement thereof. A self-insured health care provider shall, for the benefit of the patient's compensation fund, also exercise good faith and reаsonable care both in evaluating the plaintiff's claim and in considering and acting upon settlement thereof.
[3] As previously noted, in reaching its conclusion, the court of appeal relied heavily upon Hebert, supra. That opinion, after determining that
[4] In dicta, the Hebert court suggested that failure to comply with these procedures should result, at most, in a continuance. Although that approach understandably would be attractive where, as in Hebert, service occurred only a few days late, it nonetheless offends the statutory mandate and produces a preposterous result when, as here, the Fund receives no formal demand until almost seven years later. In the matter at hand, the trial court actually approved the settlement before proceedings began against the Fund.