Arrington v. Galen-Med, Inc.

839 So. 2d 429, 2003 La. App. LEXIS 193, 2003 WL 246027
Louisiana Court of Appeal·Decided February 5, 2003·No. No. 02-784·Published·Cited by 2 cases

Opinion

[.THIBODEAUX, Judge.

In this suit for medical malpractice, plaintiff, Susan Arrington, appeals the judgment of the trial court, which awarded $7,500 in costs on behalf of plaintiffs expert for trial preparation and testimony against defendant, Galen-Med, Inc. d/b/a, Lake Area Medical Center (“LAMC”). All other costs submitted by plaintiff, other than costs for Arthur Shorr’s preparation and testimony, x-rays, and Dr. Paul Co-meaux’s testimony, were excluded by the trial court judge. Plaintiff contests the trial court’s denial of these costs. Addi[430]*430tionally, Ms. Arrington appeals the trial court’s application of a $20,000 credit in costs paid by the Louisiana Patient’s Compensation Fund (“PCF”) in its settlement agreement. Plaintiff-appellant charges that the trial court’s failure to award the remaining costs in conjunction with the credit resulted in the successful plaintiff incurring all trial costs.

We affirm in part and amend in part. We find that the trial court judge properly granted a $20,000 credit for costs paid by the PCF in its settlement agreement. Additionally, the trial court properly interpreted La.R.S. 13:4533, determining that only depositions “used at trial” are com-pensable as court costs. In an effort to prove her case, plaintiff deposed several experts whose depositions were used by the Medical Review Panel to render its opinion. Since these discovery tools are required to be in written form and are necessary for proper disposition of the case, prior to filing suit, we will award costs of these depositions. Further, we find that Dr. Gary Harris’ preparation and testimony are also compensable.

I.

ISSUES

The following issues are before us on appeal:

|?,(1) whether the trial court erred in granting the defendants a $20,000 credit as costs of the trial?
(2) whether the trial court erred in disregarding the costs of depositions obtained for the purpose of presenting the case to the Medical Review Panel?
(3) whether the trial court erred in failing to award a reasonable sum for Dr. Gary Harris’ preparation and testimony?

II.

FACTS

On October 28, 1994, Billy Arrington died of pulmonary embolism at Lake Area Medical Center (“LAMC”). Prior to his death, Mr. Arrington was treated and released by Dr. Ricardo Samudia, an independent contractor of LAMC’s emergency room. Dr. Samudia failed to diagnose Mr. Arrington with pulmonary embolism, and the patient died three days later. Dr. Samudia had worked an 18-hour shift at Calcasieu Cameron Hospital, prior to beginning his shift at LAMC. Plaintiff, Susan Arrington1, asserted that Dr. Samudia was clearly impaired when he treated her husband in the emergency room as a result of working consecutive shifts (with approximately a few hours break between shifts) exceeding 12 hours with little or no sleep, causing the physician to render unsatisfactory medical care.

On November 16, 2001, the jury returned a verdict in favor of the plaintiff, Susan Arrington. Judgment was entered on the verdict on January 3, 2002. Prior to trial, both Dr. Samudia and the PCF settled with the plaintiff. In conjunction with its settlement, the PCF paid $20,000 in costs.

| ^Following trial, plaintiff filed a motion to fix fees and assess costs. The trial court judge rendered a judgment awarding $7,500 in costs on behalf of Dr. Gary Harris, plaintiffs expert. Additionally, the trial court awarded $1,650.44 and $1,962.50 in costs on behalf of Arthur Shorr, for costs of taking his deposition and preparation and testimony, respectively. In addition, [431]*431$500.00 was granted toward Dr. Paul Co-meaux’s bill and $6.60 was granted for copying x-rays. In this same proceeding, the trial court judge subjected the above costs to a credit of $20,000 in costs paid by the PCF prior to trial.

Plaintiff now appeals the trial court’s judgment, particularly as to costs excluded by the trial court judge and the granting of the $20,000 credit.

III.

LAW AND DISCUSSION

Plaintiff asserts that the trial court erred in granting the defendants a $20,000 credit for costs paid in a prior settlement. Additionally, plaintiff asserts that the trial court erred in excluding costs for depositions used by the Medical Review Panel. We shall address these claims together. We find that the trial court judge properly granted the credit; however, he erroneously failed to award costs for depositions used by the Medical Review Panel.

On August 15, 2002, the PCF entered into a settlement agreement with the plaintiff awarding her $390,000. Additionally, the PCF agreed to assume $20,000 in costs, though the Medical Review Panel had rendered a favorable opinion for the plaintiff.

Under La.R.S. 40:1299.47(I)(2)(b), “[t]he claimant shall pay costs of the medical review panel if the opinion of the medical review panel is in favor of said claimant.” However, “if [a] claimant is unable to pay ... the cost of the medical 14review panel as they accrue, then the costs of the medical review panel shall be paid by the health care provider, with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the medical review panel costs will be offset.”

Based on this statute, Ms. Arrington was responsible for costs, since she received a favorable opinion from the Medical Review Panel. However, the settlement agreement indicates that the PCF paid costs in the amount of $20,000. We can only presume (because it is not indicated in the record and no written reasons were provided) that the PCF assumed costs at this stage in the proceeding because Ms. Arrington was indigent. According to the record, Ms. Arrington was permitted to proceed in forma pauperis based on La. Code Civ.P. art. 5181(A). At the time the Medical Review Panel rendered its opinion, Dr. Samudia had already settled with the plaintiff on February 19, 1999. Since Dr. Samudia was released as a defendant, the PCF stood in his shoes as the defendant. Ms. Arrington had reserved her right to proceed against the PCF, once Dr. Samudia was released. Due to her inability to pay costs pursuant to La.R.S. 40:1299.47(I)(2)(b), we must presume that this was the basis of the PCF’s decision to pay costs.

On January 16, 2001, Ms. Arrington received a favorable verdict from the jury. The jury found that LAMC had apparent authority over Dr. Samudia and was responsible for the actions of its physician leading to Mr. Arrington’s death. Pursuant to La.R.S. 40:1299.47(1)(2)(b), LAMC was now entitled to an offset for the PCF’s payment. We find that the trial court properly granted a credit for the costs paid by the PCF in its settlement.

We conclude that the costs of depositions used by the Medical Review Panel are compensable. Louisiana Revised Statutes 40:1299.47(D) provides in part:

|s(l) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.
[432]*432(2) The evidence may consist of medical charts, x-rays, ... deposition of witnesses, including affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel.

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Arrington v. Galen-Med, Inc., 839 So. 2d 429, 2003 La. App. LEXIS 193, 2003 WL 246027 (La. Ct. App. 2003).

839 So. 2d 429 (Arrington v. Galen-Med, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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