Judgment rendered July 15, 2026. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,943-CA No. 56,944-CA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
No. 56,943-CA No. 56,944-CA
BONNIE BENNETT BONNIE BENNETT Plaintiff-Appellee Plaintiff-Appellee
versus versus
PATHWAY MANAGEMENT HERITAGE MANOR WEST, OF LOUISIANA, L.L.C. AND L.L.C. D/B/A HERITAGE HERITAGE MANOR WEST, MANOR WEST L.L.C. D/B/A “HERITAGE Defendants-Appellants MANOR WEST” Defendants-Appellants
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court Nos. 626,044 and 637,280
Honorable Brady D. O’Callaghan, Judge
BAKER, DONELSON, BEARMAN, Counsel for Defendants- CALDWELL & BERKOWITZ, PC Appellants, Pathway By: Nicholas J. Wehlen Management of Louisiana, LLC; Heritage Manor West, LLC; and Heritage Manor West LUNN IRION LAW FIRM, LLC By: Ronald E. Raney
BRADLEY, MURCHISON, KELLY and SHEA, LLC By: Patrick W. Woolbert
McNEW, KING, LANDRY Counsel for & HAMMETT, LLP Intervenor-Appellant, By: Brady D. King, II Louisiana Patient’s Compensation Fund Oversight Board
GARCIA & ARTIGLIERE Counsel for Plaintiff- By: Stephen M. Garcia Appellee, Bonnie Jordan M. Jeansonne Bennett Matthew M. Coman
FLANAGAN PARTNERS LLP By: Thomas M. Flanagan Anders F. Holmgren Alixe L. Duplechain
Before PITMAN, THOMPSON, and ELLENDER, JJ. PITMAN, C. J.
Defendants-Appellants Pathway Management of Louisiana, LLC
(“Pathway LLC”) and Heritage Manor West, LLC (“Heritage”) appeal the
judgment of the trial court rendered pursuant to a judgment notwithstanding
the verdict (“JNOV”) in favor of Plaintiff-Appellee Bonnie Bennett for
negligence and fraud in the care of her father at a nursing home. The
Louisiana Patient’s Compensation Fund (“PCF”) intervened in the appeal.
For the following reasons, the judgment is reversed in part, affirmed in part
and modified.
FACTS
At first blush, this appears to be a typical medical malpractice case
brought under the Louisiana Medical Malpractice Act (“LMMA”), La.
R.S. 40:1231.1, et seq.; but for various reasons, it is not. Bennett sued
Pathway LLC and Heritage for negligence and fraud in the care of her
father, Raymond Davidson, who was a resident at Heritage Manor for four
years. He entered the facility in 2015 and lived there until March 3, 2020,
when he was transferred to another facility for care of pressure wounds and
decubitus ulcers on his buttocks, groin and sacral areas. He died May 20,
2020.
Heritage provided proof that it was a qualified health care provider
(“QHCP”), and a medical review panel was invoked on May 13, 2020.
Bennett filed suit September 18, 2020, in the First Judicial District
Court in Docket No. 626,044 against Pathway LLC, as the administrative
manager of Heritage. The petition contains a footnote which states as
follows: On May 13, 2020, Raymond Davidson, as “Claimant,” requested the formation of a Medical Review Panel in accordance with La. R.S. 40:1231.8 as to Heritage Manor West, LLC d/b/a “Heritage Manor West,” the “Health Care Provider” FACILITY (La. R.S. 40:1231.1(A)(l0)). The defendants specifically named herein and the claims alleged herein are not encompassed by La. R.S. 40:1231.1, et seq. On May 20, 2020, Claimant died. On July 20, 2020, Bonnie Bennett, as the daughter and surviving child of Raymond Davidson, requested that the Medical Review Panel substitute her as Claimant against Heritage Manor West, LLC d/b/a “Heritage Manor West.”
Bennett’s petition alleged that Pathway LLC, as administrative
manager of Heritage, was responsible for the facility’s failure to properly
care for Davidson. It also alleged that in late January 2020, Heritage failed
to provide necessary custodial care for Davidson that included failure to
provide necessary nutrition and hydration resulting in his hospitalization on
multiple occasions. In March 2020, Davidson was transferred from Heritage
to another facility where he was again diagnosed with malnutrition,
dehydration and dangerously low hemoglobin that required a blood
transfusion. After he was transferred, Davidson died; his death certificate
lists “sacral wounds with sepsis” as his immediate cause of death.
Bennett alleged that these injuries were caused solely by the
negligence and/or fault of Pathway LLC and/or through Heritage, as alleged
under La. C.C. art. 2315, et seq. She further alleged that their actions
constituted administrative negligence, and it was through their fault that
Davidson suffered a lost chance of survival, wrongful death and severe and
painful injuries to his mind and body, as well as unnecessary medical
expenses. She stated that administrators at Heritage failed to maintain
adequate staffing, which resulted in failure to provide the care necessary to
support Davidson’s medical needs.
2 After the medical review panel was completed, Bennett filed suit
against Heritage in Docket No. 637,280, and then amended her suit against
Pathway LLC in Docket No. 626,044 in June 2021, adding Heritage as a
defendant. By consent of the parties, the suits were consolidated. In the
amended petition, Bennett alleged that after her father’s death, she was
substituted as the claimant before the medical review panel. In a footnote to
the petition, she states:
As retained in the proposed First Amending Petition for Wrongful Death and Survivor’s Damages and Injunctive Relief, the claims alleged therein against the Facility and existing Defendants constitute separate torts apart from a claim under the Medical Malpractice Act. (Citation omitted.)
She inserted a claim related to violations of the Nursing Home Residents Bill of Rights (“NHRBR”) provided under La. R.S. 40:2010.6, et seq. including the award of reasonable attorney’s fees and costs of the action.
In a second amended petition, Bennett alleged medical negligence and
stated that those allegations apply only to Heritage, which breached its
standard of care and treatment during Davidson’s residency at the facility.
As to Pathway LLC, she alleged it had the administrative authority and duty
to provide appropriate care and services to him and that it failed miserably.
The petition stated that the claim for administrative negligence or failure to
provide adequate staffing was a claim of general negligence not subject to
the LMMA.
The second amended petition further included a third section entitled
“Intentional Fraud,” which was applicable only to Heritage. It cited the
NHRBR, which provides that all nursing homes shall adopt and make a
public statement of the rights and responsibilities of the residents residing
therein and shall treat such residents in accordance with the provisions of the
3 statement. Bennett alleged Heritage committed fraud when it
misrepresented or suppressed the truth as to its ability to adequately care for
her father and did so with the intention either to obtain an unjust advantage
for itself or to cause a loss or inconvenience to him.
A jury trial was held August 20-23, 2024. On the last day of the trial,
outside the presence of the jury, Defendants raised the issue of the
qualification of Pathway LLC as a QHCP so that it would be entitled to the
protections of the LMMA. Pathway LLC’s attorney stated that it did not
have the certificate of enrollment issued to it by the PCF, and the attorney
admitted that the certificate was not produced in discovery. Pathway LLC
noted that it had included its certificate of enrollment as an exhibit in a joint
pretrial statement and that Bennett had not objected. Pathway LLC’s
attorney argued that jurisprudence allowed testimony and other documentary
evidence to support a finding that the certificate is merely prima facie
evidence of enrollment.
The trial court agreed to hear Pathway LLC’s evidence but declined to
decide whether it was a QHCP until after the jury’s verdict was rendered.
The testimony of Bobby L. Beebe, Jr., president of Pathway Management,
Inc.1 (“Pathway Inc.”) was taken and he stated that Pathway Inc. managed
nursing homes in the states of Louisiana and Mississippi through its
subsidiaries, including Pathway LLC. Beebe testified that Pathway LLC has
professional liability insurance and is a member of the PCF. He stated that
the LLC had made an application, paid the fee and filed the financial
responsibility form. He asserted that the LLC had been enrolled with the
1 Pathway Management, Inc. is not the defendant in this case. Pathway LLC is the defendant. 4 PCF during the period of September 2019 until September 2020. Beebe
identified documents reflecting the payments made proving enrollment in
the PCF, and these were proffered. Pathway LLC’s certificate was included
with the proffer exhibits.
The jury found in favor of Bennett on the survival, wrongful death
and fraud claims. The judgment memorializing the jury’s verdict was signed
on October 28, 2024, and stated that the total award of damages from
Pathway LLC and Heritage was $3,897,689.63. They were assessed with
damages of $2,897,689.63 for Davidson’s survival action and wrongful
death with legal interest against Heritage from the date the medical review
panel complaint was filed. Pathway LLC was assessed with these damages
with legal interest from the date of judicial demand. Heritage was assessed
with $1 million for the fraud committed upon Davidson, which allegedly
convinced him to become a resident of its facility. An award of attorney
fees was left to a later date.
Bennett filed a motion for the award of attorney fees and costs.
Defendants filed a JNOV on grounds of validity of the damages awarded by
the jury, whether a previous decision regarding Pathway LLC’s status as a
QHCP was correct and whether the fraud claim was duplicative when it was
based on the same factual circumstances as the claim for negligence.
Defendants also filed a motion for reconsideration and/or for a new trial
regarding a ruling by the trial court in October 2024, which concerned
whether the damage cap set forth in the LMMA applied to the claims
brought against Pathway LLC.
In a judgment rendered on April 30, 2025, the trial court ruled on
these post-trial motions and the JNOV and amended the original judgment in 5 several significant respects. The trial court ordered Heritage to pay attorney
fees of $265,636.25 for the fraud claim. Heritage and Pathway LLC were
ordered to pay $51,673.46 ($25,836.73 each) in costs. The trial court found
the fraud damages to be “largely co-extensive with the medical malpractice
damages, and not subject to the LMMA’s statutory cap.” Thus, it reduced
the jury’s award of $1 million for the fraud claim “only to the extent that the
other damages are subsumed by that award” and amended the judgment for
fraud to $687,500.
The trial court found that although the administrative negligence
claim sounded in malpractice and not in general negligence, Pathway LLC
failed to prove its status as a QHCP and could not benefit from the LMMA.
In its reasons for this finding, the trial court noted that Pathway LLC had
failed to file an exception of prematurity invoking its right to the medical
review panel consideration prior to the filing of the suit. The trial court
concluded that it had waived its right to invoke the review and also waived
the right to limit its damages as provided by the LMMA.
The trial court further addressed the jury’s award of damages and
found that, regardless of the cause of action or theory of recovery, an
appropriate award for both the survival and wrongful death claims was
$625,000 apportioned equally between Defendants ($312,500 each).
The trial court affirmed the special damage award of $297,189.63 in
medical expenses and $500 for funeral expenses, to be paid in equal portions
by Defendants ($148,844.82 each).
The trial court also cast Heritage in judgment for $1,440,317.80 and
Pathway LLC in judgment for $487,181.55. The PCF was not cast in
judgment. 6 The PCF intervened on May 28, 2025, and filed a petition for a
suspensive appeal, which was granted. The PCF’s appeal only raises issues
pertinent to its liability to cover the damages assessed to each Defendant and
requests clarification of its responsibility in the litigation.
Pathway, Heritage and the PCF appeal the judgment of the trial court.
DISCUSSION
Fraud and Attorney Fees
The awards for fraud and attorney fees were rendered against Heritage
alone. Heritage argues that the jury’s judgment was manifestly erroneous
and should have been vacated by the district court when it granted the JNOV
in part and reduced the damages for the fraud award by the amount of
damages awarded for the medical malpractice action. It argues that there
was no reasonable basis for finding that it committed fraud or that it either
consciously desired the physical result of its purported fraud or knew that
the result was substantially certain to follow from its conduct. Heritage
contends that Bennett failed to meet any burden of proof that the alleged
inadequate care resulted from understaffing or that the staffing levels were
low before Davidson was admitted or that it knew it could not meet his
medical needs but still convinced him to reside there. Thus, Bennett failed
to show sufficient knowledge or intent to defraud Davidson or Bennett.
Heritage also argues that if it is liable for fraud, Bennett is precluded
from recovering damages under multiple legal theories because such
recovery for fraud would be duplicative recovery. It contends that Bennett
was awarded damages for survival and wrongful death claims sounding in
negligence but then received an additional $687,500 in fraud damages
7 despite failing to show any additional harm that the fraud caused. For this
reason, Heritage argues that the fraud damages award should be vacated.
Bennett’s argument for fraud against Heritage is twofold, i.e., that
Heritage failed to provide adequate staffing to meet Davidson’s needs and
that those actions and failure to act constituted administrative negligence,
i.e., ordinary negligence, and that it made representations to him at the time
of his admission with knowledge that those representations were false and
which they had no intention of fulfilling. She asserts that the damages are
intended to compensate for Davidson’s lost opportunity to reside in a
different nursing home, not for his injury or death, and that the LMMA does
not apply to this fraud claim.
The standard for reviewing a JNOV is the manifest error standard.
Caskey v. Merrick Const. Co., 46,886 (La. App. 2 Cir. 3/14/12), 86 So. 3d
186, writ denied, 12-0847 (La. 6/1/12), 90 So. 3d 442. A motion for JNOV
presents the legal question of whether there is sufficient evidence to support
a jury verdict. Id. In reviewing the JNOV, the appellate court must first
determine if the trial court erred in granting the JNOV. Id. The appellate
court uses the same criteria as the trial court to determine if the trial court
properly granted a JNOV, i.e., do the facts and inferences point so strongly
and overwhelmingly in favor of the moving party that reasonable persons
could not arrive at a contrary verdict. Id. After determining that the trial
judge correctly applied its standard of review as to the jury verdict, the
appellate court reviews the JNOV using the manifest error standard of
review. Id.
Fraud is a misrepresentation or a suppression of the truth made with
the intention either to obtain an unjust advantage for one party or to cause a 8 loss or inconvenience to the other. La. C.C. art. 1953. Fraud may also result
from silence or inaction. Id. Fraud need only be proved by a preponderance
of the evidence and may be established by circumstantial evidence. La. C.C.
art. 1957. The party against whom rescission is granted because of fraud is
liable for damages and attorney fees. La. C.C. art. 1958.
Whether a claim sounds in medical malpractice is a question of law
reviewed under a de novo standard. Patterson v. Claiborne Operator Grp.,
L.L.C., 55,264 (La. App. 2 Cir. 11/15/23), 374 So. 3d 299.
Malpractice is defined at La. R.S. 40:1231.1(A)(13) as follows:
“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including but not limited to failure to render services timely and the handling of a patient, loading and unloading of a patient, and all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the staffing, training, or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient. This includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.
Tort is defined at La. R.S. 40:1231.1(A)(22) as follows:
“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, the
supreme court identified six factors to be utilized in determining whether an
action sounds in medical malpractice: (1) whether the specific wrong is 9 treatment related or caused by a failure of professional skill; (2) whether the
specific wrong will require expert medical evidence to determine if the
appropriate standard of care was breached; (3) whether the pertinent act or
omission involved assessment of the patient’s condition; (4) whether an
incident occurred in the context of a physician-patient relationship or was
within the scope of activities that a hospital is licensed to perform; (5)
whether the injury would have occurred if the patient did not seek treatment;
(6) whether the alleged tort was intentional.
In Broden v. Priority Mgmt. Grp., L.L.C., 25-01651 (La. 2/12/26),
427 So. 3d 726, the plaintiffs sued a nursing home manager, which was a
QHCP, alleging claims for administrative negligence including
understaffing and poor staffing of a nursing home which resulted in
inadequate care being provided to a resident in the months prior to his death.
Because the defendant was a QHCP, the pertinent issue addressed was
whether the claims constituted medical malpractice within the meaning of
the LMMA or were more properly characterized as general negligence. The
court also discussed whether understaffing and underfunding were
“intentional” acts which fell outside of the LMMA and concluded that the
mere allegation does not establish an intentional tort sufficient to circumvent
the requirements and protections of the LMMA. Broden v. Priority Mgmt.
Grp., L.L.C., supra, stated in footnote 7:
Intent for these purposes requires that the person committing the action “consciously desires the physical result of his act” or that the injuries were “substantially certain to follow from his conduct, whatever his desire may be.” Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981). In this context, that would require proving [management company] consciously desired the injuries or death of [resident] or that the same was substantially certain to follow its conduct, which they did not do in this case.
10 Simply using the word “intentional” does not convert a medical malpractice claim into an intentional tort.
In Douglas v. Pathway Mgt. of La, LLC, 56-040 (La. App. 2 Cir.
4/9/25), 408 So. 3d 1186, this court stated:
The administrative claims of understaffing set forth in plaintiff’s petition tend to show the degree of care which was, or should have been, provided to plaintiff, and the appropriate standard of care are questions which require expert medical knowledge ... Likewise, the opinion of experts will be required to determine if [the management company] breached the standard of care by, inter alia, failing to ensure [the nursing home] had sufficient resources to maintain adequate staffing to meet plaintiff's needs in accordance with her plan of care.
See also Patterson v. Claiborne Operator Group, LLC, supra,
examining understaffing and inadequate staffing claims, and finding that
“they are all related to an alleged failure to provide care, which is the very
essence of the LMMA.”
Bennett’s claim for fraud based on false statements made to Davidson
upon admission, which allegedly prevented him from having an opportunity
to reside elsewhere, is not a viable ground for recovery. Fraud cannot be
predicated on unfulfilled promises or statements as to future events.
Johnson v. Unopened Succession of Alfred Covington, Jr., 42,488 (La. App.
2 Cir. 10/31/07), 969 So. 2d 733.
The manifest error standard applies to the review of medical
malpractice cases. Under the manifest error standard of review, a factual
finding cannot be set aside unless the appellate court finds that it is
manifestly erroneous or clearly wrong. Temple v. Ballard, 56,407 (La. App.
2 Cir. 11/19/25), 425 So. 3d 206, writ denied, 26-00144 (La. 4/9/26),
429 So. 3d 726. In order to reverse a fact finder’s determination, an
appellate court must review the record in its entirety and (1) find that a
11 reasonable factual basis does not exist for the finding, and (2) further
determine that the record establishes that the fact finder is clearly wrong or
manifestly erroneous. Id. The appellate court must not reweigh the
evidence or substitute its own factual findings because it would have decided
the case differently. Id. The issue to be decided by the reviewing court is
not whether the trier of fact was right or wrong, but whether the fact finder’s
conclusion was a reasonable one. Id.
Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly erroneous or clearly
wrong. Id. When the jury’s findings of fact are reasonable in light of the
entire record, an appellate court may not reverse a choice between two
permissible views of the evidence. Rosell v. ESCO, 549 So. 2d 840 (La.
1989); Temple, supra.
Bennett failed to produce any proof that Heritage intentionally
committed fraud upon Davidson by implying it would abide by its duty to
provide care and in failing to do so. The burden of proof, which required a
showing of intent to deceive and that Heritage knew that the result was
substantially certain to follow from its conduct, was never met in this case.
Simply using the word “intentional” does not convert a medical malpractice
claim into an intentional tort; and, therefore, these are not allegations upon
which a judgment of fraud can be based.
After reviewing the JNOV, we find the trial court committed manifest
error in its decision to affirm the jury’s fraud judgment albeit modified by
reduction by the amount of damages awarded in medical malpractice. The
record does not contain sufficient evidence to support a jury verdict of fraud
12 separate from the claim of medical malpractice. For the foregoing reasons,
we find the assignment of error to have merit.
We note that the attorney fees were awarded against Heritage for the
judgment of fraud pursuant to La. C.C. art. 1958. The trial court addressed
the issue in the JNOV and determined that Heritage would pay $265,636.25
in attorney fees to Bennett for the prosecution of the fraud claim. Although
Heritage did not raise any argument specifically addressing this award of
attorney fees, once it was determined that there was no basis for fraud, there
was no statutory basis for attorney fees and none should have been awarded.
La. C.C.P. art. 2164 provides that the appellate court shall render any
judgment which is just, legal and proper upon the record on appeal. Because
we find it was manifest error to award any amount for fraud, we reverse the
trial court’s judgment on the JNOV and vacate the damage award against
Heritage of $687,500 and the award of attorney fees of $265,636.25.2
Pathway LLC’s Status as a Qualified Health Care Provider
Pathway LLC argues that the trial court abused its discretion in
refusing to accept the proffer of its proof of enrollment in the PCF during
trial and then committed manifest error when it made the factual
determination that it was not entitled to the benefit of enrollment limiting the
damages against it to $100,000 under the LMMA and finding that the PCF
would be responsible for the remainder of its judgment up to the cap of
$500,000. It asserts that the applicability of the LMMA is a legal issue and
2 We note that Bennett has argued that a successful party who was awarded attorney fees in the trial court and then successfully defends an appeal is entitled to an award of additional fees and costs for the additional work required in that defense. She sought remand to quantify the amount due for additional work done, including preparing an answer and drafting an appellate brief. However, because she was unsuccessful in defense of the fraud judgment and the award of attorney fees, this issue is pretermitted. 13 that this court should conduct a de novo review of the record, including the
proffered certificate, and find that it proved it was enrolled and entitled to
the protections provided by certification.
Bennett argues the trial court’s judgment denying Pathway QHCP
status was not an abuse of discretion or manifestly erroneous. Pathway LLC
never produced its certificate of enrollment in the PCF in response to a
discovery request and failed to produce “thousands of pages of medical
records.” She contends that Pathway LLC also never provided a copy of the
proper certificate during trial. The trial court found that she was justified in
believing Pathway LLC was not a QHCP and that to allow use of the
proffered proof at trial “would have rewarded Defendants’ seemingly casual
compliance with their discovery obligations and would have transformed
what was either a deliberate misdirection or an unintentional mistake into a
tactical advantage at trial.”
La. R.S. 40:1231.2 concerns qualification as a QHCP and states as
follows:
A. To be qualified under the provisions of this Part, 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. 40:1231.4.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.
These same requirements are reiterated in LAC 37:III.501, et seq.,
which governs the qualifications, conditions and procedures required for 14 PCF enrollment. Roberson v. Arcadia Healthcare Ctr., Inc., 37,761 (La.
App. 2 Cir. 7/9/03), 850 So. 2d 1059. In Roberson, this court noted that of
particular relevance is LAC 37:III.515, which concerns the certificate of
enrollment and provides as follows:
A. Upon receipt and approval of a completed application (including evidence of financial responsibility pursuant to § 505, § 507, or § 509) and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the qualified health care provider and specifying the effective date and term of such enrollment and the scope of the fund’s coverage for that health care provider.
LAC 37:III.515(B) states that duplicate or additional certificates of
enrollment shall be available to and upon the request of an enrolled health
care provider or his attorney, or its professional liability insurance
underwriter, when the certification is required to evidence enrollment or
qualification with the fund in connection with an actual or proposed medical
malpractice claim against the health care provider.
These provisions demonstrate that a health care provider becomes
enrolled in the PCF, and is thus qualified, upon approval of an application,
demonstration of financial responsibility to the satisfaction of the PCF and
payment of the applicable surcharge to the PCF. Roberson, supra. Upon
satisfaction of these three basic requirements, a certificate of enrollment is
issued, and this certificate establishes the health care provider to be a
qualified health care provider under the LMMA. Id. This is the only
reference to the “certificate of enrollment” in the LMMA. Roark v. Liberty
Healthcare Sys., LLC, 44,913 (La. App. 2 Cir. 12/9/09), 26 So. 3d 968, writ
denied, 10-0390 (La. 4/23/10), 34 So.3d 265. On this statutory authority for
the allowance for the “certificate of enrollment” as evidence, the 15 jurisprudence holds such certificate is competent evidence to establish a
prima facie case for the applicability of the medical malpractice law
regarding claims against the party identified on the certificate. Id., citing,
Hill v. Brentwood Hosp., Inc., 480 So. 2d 875 (La. App. 2 Cir. 1985).
In order to qualify for the protections and benefits of the LMMA, a
health care provider must satisfy both the financial aspects and the licensing
requirements. In re Price, 56,500 (La. App. 2 Cir. 12/17/25), 425 So. 3d
957, writ denied, 26-00053 (La. 3/31/26), 428 So. 3d 687.
The purpose of the LMMA is to limit the liability of health care
providers who qualify by maintaining specified malpractice insurance and
by paying a surcharge to the PCF. Sewell v. Drs. Hosp., 600 So. 2d 577,
(La. 1992). The LMMA limitations on the liability of a health care provider
are special legislation in derogation of the rights of tort victims. Id. As
such, the coverage of the LMMA should be strictly construed. Id. These
limitations apply only in cases of liability for malpractice as defined in the
LMMA. Id. A qualified health care provider is liable for malpractice only
to the extent provided in the LMMA; namely, a qualified health care
provider has no liability for any amount in excess of $100,000, plus interest.
Roark, supra. All claims against health care providers covered by the Act
are required to be reviewed by a medical review panel. Sewell, supra.
Although Pathway LLC insists it is enrolled in the PCF and is entitled
to the benefits conferred upon it by virtue of its enrollment, it never
presented Bennett with the certificate evidencing enrollment at any time
prior to trial and only proffered the correct certificate to the trial court prior
to judgment on the merits of the case. Pathway apparently waived its first
right under the LMMA to invoke a medical review panel when it failed to 16 file an exception of prematurity to Bennett’s lawsuit. Had the medical
review panel been invoked, the certificate of enrollment would have been
admitted at that time. La. R.S. 40:1231.8(B)(1)(a)(i) and (ii). By agreement
of all parties, the use of the medical review panel may be waived. La.
R.S. 40:1231.8(B)(1)(c). If the burden of proof is on the QHCP, Pathway
should have been able to produce its certificate at some time prior to trial or
should have objected to the prematurity of Bennett’s suit it claims is covered
by the LMMA.
Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly erroneous or clearly
wrong. Temple, supra. We do not find the trial court’s conclusion that
Pathway, LLC failed to meet its burden of proof of QHCP status prior to
trial to be manifestly erroneous. This assignment of error is without merit,
and Pathway, LLC is responsible for payment of the judgment rendered
against it as a non-qualified health care provider.
JNOV Damages, Interest and Costs
Bennett and Defendants have all raised issues with the final judgment
rendered by the trial court pursuant to the JNOV. Pathway and Heritage
assert that the trial court correctly reduced the jury’s unreasonable damage
award by making a de novo award based on its independent assessment of
damages. They contend that the jury’s award of general damages of
$1.5 million on Bennett’s survival claim and $1.1 million on the wrongful
death claim far exceeded awards in similar cases, thus necessitating a
reduction by the district court. Defendants also claim the trial court erred in
failing to include the PCF’s liability in the final judgment and erred by
17 incorrectly calculating the date from which interest would run on attorney
fees and the amount of costs awarded.
Bennett contends that the jury’s award of damages for the survival
and wrongful death actions was not abusively high when jurisprudence of
similar cases was considered. Thus, she argues, the trial court erred in
reducing her award pursuant to the JNOV. She argues that the PCF need not
be cast in judgment to be liable for payment to her. She acknowledges that
the date of interest on attorney fees is incorrectly stated in the final judgment
and also acknowledges that the cost award is higher than she requested and
agrees with the amount Defendants assert is due.
Damages
A jury has great discretion in awarding general damages. Pete v.
Boland Marine & Mfg. Co., LLC, 23-00170 (La. 10/20/23), 379 So. 3d 636,
citing La. C.C. art. 2324.1. The discretion afforded to the trier of fact in
awarding general damages is not, however, unfettered. Id.
It is well-settled that appellate courts have a constitutional duty to
review the law and facts and thereafter render a judgment on quantum based
on the merits, including determining whether the jury has abused its much
discretion in awarding general damages. Barber Bros. Contracting Co.,
LLC v. Capitol City Produce Co., LLC, 23-00788 (La. 12/19/24), 397 So. 3d
404, reh’g denied, 23-00788 (La. 2/14/25), 400 So. 3d 918. It is only when
the award is, in either direction, beyond that which a reasonable trier of fact
could assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should increase or
decrease the award. Barber Bros. Contracting Co. LLC, supra.
18 General damage awards must not be obviously the result of passion or
prejudice, and they should bear a reasonable relationship to the elements of
the proved damages. Id. To reduce the trier of fact’s award, a reviewing
court must conclude from the entirety of the evidence viewed in the light
most favorable to the plaintiff that a rational trier of fact could not have
fixed the awards of general damages at the level set by the trial judge or that
this is one of those exceptional cases where such awards are so gross as to be
contrary to right reason. Id. To find abuse of discretion warranting the
disturbance of a fact finder’s award of general damages, a reviewing court
must find that the award is so high or so low in proportion to the injury that
it shocks the conscience. Id.
In Barber Bros., the court stated that it considered prior awards in
similar cases along with the particular facts and circumstances of the case at
bar when it determined whether there had been an abuse of discretion in an
award of general damages. Id.
In the case at bar, the trial court applied the legal analysis approved in
Barber Bros. and determined that the almost $2.6 million in general
damages far exceeded the award in other cases with similar facts. As noted
by the trial court, the case of King v. Brown Dev., Inc., 43,827 (La. App.
2 Cir. 2/4/09), 4 So. 3d 231, writ denied, 09-0499 (La. 4/17/09), 6 So. 3d
796, is very similar to the instant case. In that case, the plaintiff’s father was
an 84-year-old patient in a nursing home who suffered a small pressure sore
on his hip. His condition worsened and it became a Stage IV decubitus
ulcer. The nursing home failed to provide documentation that he had been
repositioned in accordance with his care plan. After becoming malnourished
and dehydrated, he died a month after admission. The jury in that case 19 originally awarded $750,000 for the survival action and wrongful death.
The trial court reduced the award to $500,000, the statutory cap of the
LMMA. The judgment was reduced a second time to $200,000, and it was
appealed to this court. This court determined that although $500,000 was on
the “upper end” of reasonable damages for both actions, “we cannot say that
the record provides no support for the award.” Id.
After examining the facts of the case at bar and the jurisprudence of
other awards, the trial court reduced the award from the very large award of
millions to 25 percent above the award of King, supra, finding reasonable
damages for the survival and wrongful death claims to be $625,000, or
$312,500 each, for Heritage and Pathway LLC in accordance with the jury’s
decision that the damages should be split equally between them.
We find no abuse of discretion in the ruling of the trial court reducing
the damages awarded to Bennett for the wrongful death and survival actions.
The PCF’s Absence from the Final Judgment
Defendants contend that the trial court erred in not including the PCF
in its final judgment and in calculating interest and costs. It notes that the
judgment of October 28, 2024, memorializing the jury verdict correctly
applied La. R.S. 40:1231.2 by capping malpractice damages against Heritage
at $100,000 and casting the PCF in judgment for the excess malpractice
award against Heritage up to $500,000 plus Heritage’s share of medical
costs and related benefits. In that judgment, the PCF was ordered to pay
$548,594.81, consistent with the LMMA. However, Defendants contend
that the final judgment rendered pursuant to the JNOV erroneously failed to
include the PCF, resulting in an assessment of uncapped medical malpractice
damages against Heritage. They argue the judgment should be reversed, 20 Heritage’s damages capped and the PCF cast in judgment for the remainder
of the damages.
Bennett claims the PCF need not be cast in judgment to be responsible
for a portion of malpractice damages owed by a QHCP; and, thus, there is no
need to amend the judgment to add the PCF. The law provides for the
damages due from the PCF when status as a QHCP has been established.
The PCF does not have to be made a party to the litigation or cast in
judgment in order to disburse its funds.
The PCF intervened in this appeal to assert its statutory rights,
privileges and immunities and to resist any efforts to enlarge its
responsibility or obligations under the JNOV.3
La. R.S. 40:1231.2(B)(3)(a) provides that any amount due from a
judgment or settlement which is in excess of the total liability of all liable
health care providers, as provided in Paragraph (2) of this Subsection, shall
be paid from the PCF. La. R.S. 40:1231.4(B) states in pertinent part:
(1) Subject to the other provisions of this Section, the board shall issue payment in the amount of each claim submitted to and approved by it, or prorated payment, as the case may be, against the fund within thirty days of receipt of a certified copy of the settlement, judgment, or arbitration award except that payment for claims made pursuant to Subparagraph (2)(d) or (e) of this Subsection, or both, shall be made upon receipt of such certified copy.
(2) The only claim against the fund shall be a voucher or other appropriate request by the board after it receives:
(a) A certified copy of a final judgment in excess of one hundred thousand dollars against a health care provider.
3 The PCF did not address the issue raised by Defendants that it had not been cast in judgment but only asserted its liability for that portion of the judgment for which it was liable in accordance with the LMMA. The PCF states it is not responsible for the cost award because it was for costs incurred prior to judgment or its intervention. La. R.S. 40:1231.2(B)(2). It is not liable for any amounts which Pathway LLC was cast in judgment because it is not a QHCP, citing La. R.S. 40:1231.1(D). It is liable for excess damages arising from or caused by health care provided by Heritage subject to credits and the cap on damages. La. R.S. 40:1231.2. 21 The LMMA neither contemplates the PCF as a party defendant, nor
gives the PCF status as a co-obligor or insurer of the health care provider.
Khammash v. Clark, 13-1564 (La. 5/7/14), 145 So. 3d 246. The PCF is a
statutory intervenor who has an interest in the proceedings between the
claimant and the health care provider because any damages in excess of
$100,00 are payable by the PCF. Id.4
Because the PCF need not be cast in the final judgment being
appealed, we find no error in the trial court’s decision not to cast it in
judgment. The law provides a remedy for recovery of damages against the
PCF when the final judgment against a QHCP exceeds $100,000, as it does
in the case at bar. The PCF has acknowledged that it is responsible for
payment of damages against Heritage, which exceed $100,000, and that
Heritage is responsible for the first $100,000, and the PCF is responsible for
any excess amounts or $361,344.81. However, the PCF is not liable for
costs awarded prior to judgment. La. R.S. 40:1231.2(B)(2).
Interest and Costs
Defendants assert that the final judgment on the JNOV erroneously
held that interest on all awards, including the attorney fee award, ran from
the date of judicial demand, and that is an error. They contend that this is a
legal error; and assuming attorney fees are awarded, Bennett is only entitled
to interest on such award from the date of the final judgment.
Bennett agrees with Defendants that the trial court’s calculation of
interest on attorney fees should accrue from the date of judgment rather than
4 Khammash, supra, was rendered in May 2014 and was based on La. R.S. 40:1299.44(C)(5)(a), which was amended effective June 2, 2015, and redesignated as La. R.S. 40:1231.4. 22 the date of judicial demand. However, Bennett contends that the trial court’s
award of interest on the other damages from the date of judicial demand
should remain intact.
Because the award of attorney fees was based on the fraud judgment,
both of which were vacated earlier in this opinion, the issue of the date from
which interest was awarded on the attorney fees is moot.
Legal interest shall attach from date of judicial demand, on all
judgments, sounding in damages, “ex delicto,” which may be rendered by
any of the courts. La. R.S. 13:4203. Interest on damages awarded against
Heritage other than for fraud was correctly stated in the JNOV as running
from the date of the filing of the medical malpractice complaint on May 13,
2020. Because no medical malpractice complaint was filed against Pathway
LLC, and it is not a QHCP, interest on the judgment against it began to run
on the date of judicial demand, September 18, 2020. La. C.C.P. art. 1921;
La. R.S. 13:4203.
Costs
Defendants’ final issue with the JNOV regards the award of costs of
$51,673.46, which they contend was manifest error and should be reduced to
$46,285.03, the amount Bennett actually requested be awarded.
Bennett agrees that she deleted some deposition costs from the total of
costs requested and ultimately asked the trial court to award $46,285.03.
She agrees that the costs should be amended to reflect the lower amount.
Because of the agreement of the parties that the proper award of costs
is $46,285.03, the judgment will be amended to reflect this amount.
23 CONCLUSION
Based on the foregoing, the judgment is reversed and vacated insofar
as it awarded any damages and attorney fees for fraud, amended to reflect
the correct amount of costs, and otherwise affirmed. Defendant Heritage
Manor West, LLC, as a qualified health care provider, is cast in judgment
for medical malpractice damages in the amount of $312,500; special
damages in the amount of $148,844.82; and costs in the amount of
$23,142.51 (half of $46,285.03), plus interest from the date of the filing of
the medical malpractice action on May 13, 2020. Heritage Manor West,
LLC, is entitled to the benefits of enrollment in the Patient’s Compensation
Fund limiting its liability to $100,000. Pathway Management of Louisiana,
LLC, a non-qualified health care provider, is cast in judgment for $312,500
for general damages; $148,844.82 for special damages; and $23,142.51, plus
legal interest from date of judicial demand, September 18, 2020.
Costs of this appeal are assessed against the three parties equally.
REVERSED IN PART AND VACATED, AFFIRMED IN PART,
AND MODIFIED AS TO COSTS.