Horil v. ScheinhornHoril v. Scheinhorn
- Reporters:
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- Before:
- Hightower
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“) sоught a writ of review. Having granted the application, we hold that a claimant expecting excess recovery 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 рetition seeking to add the Fund as a party defendant. Noting that he had 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,
Subsequently, the Fund asserted 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
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 fоrce as provided for in R.S. 40:1299.42(B)(2).
Consistent with the above 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), 633 So.2d 136. However, when, as here, a health care providеr agrees to settle its entire statutory liability and the claimant intends to pursue additional sums from the Fund,
Recently, in Russo v. Vasquez, 94-2407, pp. 5, 6 (La. 01/17/95), 648 So.2d 879, 882, we outlined the purpose and requirements of
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.
Plaintiffs accepted the [tendered $100,000] settlement [from onе of the qualified health care 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.
583 So.2d at 542. See also Stuka, supra; Doe v. Doe, 94-2284 (La.App. 1st Cir. 06/23/95), 657 So.2d 628; Dodson v. Community Blood Center of La., Inc., 633 So.2d 252 (La.App. 1st Cir.1993), writs denied, 93-3158, 93-3174 (La. 03/18/94), 634 So.2d 850, 851 (all describing procedural compliances with the provisions of
While it is true that the claimant and the hеalth care 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, exprеssly reserving his right to 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
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.