Kelty v. Brumfield

691 So. 2d 242, 1997 WL 112701
CourtLouisiana Court of Appeal
DecidedMarch 12, 1997
Docket96-CA-0869
StatusPublished
Cited by10 cases

This text of 691 So. 2d 242 (Kelty v. Brumfield) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelty v. Brumfield, 691 So. 2d 242, 1997 WL 112701 (La. Ct. App. 1997).

Opinion

691 So.2d 242 (1997)

Lynn Beaucoudray, Wife of/and James Edward KELTY, Jr., et al.
v.
Fred O. BRUMFIELD, M.D., et al.

No. 96-CA-0869.

Court of Appeal of Louisiana, Fourth Circuit.

March 12, 1997.
Writ Denied May 16, 1997.

*244 Kenneth V. Ward, Jr., Metairie, for Appellees.

George E. Cain, Kenneth A. Mayeaux, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, for Appellant Louisiana Patient's Compensation Fund.

Larry M. Roedel, David A. Woolridge, Jr., Roedel, Parsons, Hill & Koch, Baton Rouge, for Appellants The Louisiana Patient's Compensation Fund Oversight Board and its Claims Committee.

Before CIACCIO, PLOTKIN and LANDRIEU, JJ.

LANDRIEU, Judge.

This protracted litigation[1] arises out of injuries sustained at birth by Anne Mary Kelty. This appeal specifically involves the reimbursement to Anne Mary's parents, Lynn and Jim Kelty, for custodial care and related benefits under La.Rev.Stat. 40:1299.43. The trial judge modified, in part, the decision of the Louisiana Patient's Compensation Fund Oversight Board (Board), and the Louisiana Patient's Compensation Fund (Fund) appeals. We affirm as amended.

FACTS

On June 18, 1978, Anne Mary was born at Southern Baptist Hospital after Dr. Fred O. Brumfield, a qualified health care provider, induced labor by injecting Mrs. Lynn Kelty with Pitocin. Mrs. Kelty's placenta burst, the blood drained out of the unborn child, and Anne Mary was delivered via an emergency caesarian section. Because she was oxygen deprived, she was born with serious brain damage and is severely mentally and physically handicapped.

The Keltys settled with Dr. Brumfield and Southern Baptist Hospital for $100,000.00, their maximum liability under La. Rev.Stat. 40:1299.42(B)(2). The parties stipulated that Anne Mary's medical expenses exceeded $500,000.00, the maximum recoverable under La.Rev.Stat. 40:1299.42(B), and the Civil District Court in New Orleans entered judgment against the Fund for that amount.

After lengthy proceedings, the Louisiana Supreme Court held that the Keltys were also entitled to future care and related medical benefits under La.Rev.Stat. 40:1299.43. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210. The case was remanded to the Claims Committee of the Board which held an administrative hearing on July 7, 1994. Its Findings and Conclusions were adopted by the Board as its Final Decision. The Keltys were awarded $1,666,613.38 which included payment for Anne Mary's custodial care, past and future.

The trial court subsequently remanded the case to the Board to take additional evidence *245 regarding reimbursement to the Keltys for custodial care benefits. After another administrative hearing, an Amended Final Decision was rendered on September 7, 1995, in which the custodial care benefits were not modified.

The Keltys filed a petition for review in Civil District Court arguing that the Board's decision was manifestly erroneous and an abuse of discretion. Specifically, they sought damages as follows:

1) Lynn Kelty be paid for 24 hours per day custodial care from July 28, 1978, through December, 1994;

2) Jim Kelty, Anne Mary's father, be paid for 16 hours per day for custodial care from July 28, 1978, through December, 1994;

3) Custodial care be assessed at $31.00 per hour with the Fund receiving credit for amounts already paid at $6.00 per hour;

4) Legal interest be paid from July 28, 1978, the date of the malpractice, or, in the alternative, from April 22, 1983, the date the complaint was filed; and

5) Reasonable attorney's fees be awarded.

The trial court rendered a judgment on January 22, 1996, which found the payment of $6.00 per hour manifestly erroneous. The trial court modified that award with interest accruing from April 22, 1983, and assigned costs, including expert fees of $2,588.00. The January 22, 1996, judgment was again modified upon rehearing to increase the award. Both the Board and the Fund appealed the trial court's decision. They assert the following assignments of error:

(1) The trial court did not apply the appropriate standard of review to the Board's decision;

(2) The trial court improperly modified the Board's final decision as to the amount awarded for past custodial care;

(3) The trial court improperly modified the Board's final decision as to the date from which the pre-judgment interest should accrue; and

(4) The trial court improperly awarded expert fees.

The appellate court is to review the decision of the trial court under the manifest error rule. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). However, the award for custodial care, which is special damages, is reviewed under a different standard. General damages are reviewed under the abuse of discretion standard. Reck v. Stevens, 373 So.2d 498 (La.1979). But the discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Eddy v. Litton, 586 So.2d 670 (La. App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992).

ASSIGNMENT OF ERRORS NO. 1 AND 2

Future medical care and related benefits, such as custodial care, are authorized by La.Rev.Stat. 40:1299.43(B)(1). The Board has exclusive jurisdiction in initial decision making or supervision over medical and related claims, "subject only to court review of the agency's actions pursuant to well established principles of judicial review." Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, 1218-1219. The Fund alleges that the trial court did not adhere to these "principles of judicial review." Specifically, the Fund claims the trial court did not consider the record on the whole "in the light most favorable to supporting the Board's Final Decision" and improperly substituted its own evaluation of the credibility of the witnesses.

The trial court's authority to review the Board's decision arises from the Administrative Procedure Act.[2] The process for judicial review is controlled by La.Rev.Stat. 49:964 which states, in pertinent part:

A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review ...
B. Proceedings for review may be instituted by filing a petition in the district court of the parish where the agency is *246 located ...[3]
G.... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;

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691 So. 2d 242, 1997 WL 112701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelty-v-brumfield-lactapp-1997.