Luther v. IOM Co.

109 So. 3d 467, 2013 La. App. LEXIS 47, 2013 WL 163601
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 47,667-CA
StatusPublished
Cited by1 cases

This text of 109 So. 3d 467 (Luther v. IOM Co.) 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
Luther v. IOM Co., 109 So. 3d 467, 2013 La. App. LEXIS 47, 2013 WL 163601 (La. Ct. App. 2013).

Opinion

HARRISON, Judge Pro Tern.

The plaintiff contends that he suffered partial paralysis as the result of faulty monitoring by the defendants during surgery. The defendants appeal from a trial court decision granting summary judgment in favor of the Patient’s Compensation Fund (PCF), which withdrew its prior certification that these parties were qualified health care providers (QHCPs) under the Louisiana Medical Malpractice Act (MMA), La. R.S. 40:1299.41, et seq. The defendants also seek review of the trial court’s denial of their cross motion for summary judgment. For the reasons set forth below, we reverse the trial court’s granting of summary judgment in favor of the PCF and hereby grant summary judgment in favor of the defendants on the issue of the PCF coverage.

FACTS

On October 30, 2007, George Luther underwent fusion surgery on his back at St. Francis Medical Center in Monroe, Louisiana. The surgery was performed by Dr. Gerald Molloy. IOM Company, LLC (f/ k/a Intra-Op Monitoring Services, LLC), provided two employees to monitor the surgery — technician John Partridge, who was in the surgical theater, and Dr. Dan W. Joachim, who remotely monitored from IOM’s office in Covington, Louisiana. A second surgery to remove a screw and attempt to refix the fusion was performed on November 1, 2007. Subsequently, Mr. Luther suffered partial paralysis.

Mr. Luther filed a petition for a medical review panel against St. Francis Medical Center and Dr. Molloy in October 2008. During Dr. Molloy’s deposition on June 29, 2009, facts were developed suggesting that IOM and its employees were negligent in their monitoring of the patient’s neurological functions during the October 2007 surgery and that they failed to advise Dr. Molloy of salient facts which might have altered the surgical results. An amended petition for a medical review panel was filed in July 2009, to add IOM and Dr. Joachim.

In a letter dated July 7, 2009, the PCF certified that IOM and Dr. Joachim were QHCPs under the MMA. (However, in this letter, the Oversight Board reserved the right to revise its qualification and coverage determination upon receipt of additional information.) Following the certification of qualification, Mr. Luther and IOM entered into a voluntary settlement of the dispute on August 11, 2010. In exchange for $100,000, Mr. Luther agreed to release IOM with the understanding that if damages exceeded that amount, he would proceed against the PCF for the balance.

On August 17, 2010, after the Oversight Board received a copy of a petition for approval of settlement, it asserted that their earlier certification was in error and that IOM and Dr. Joachim were not QHCPs.

On October 15, 2010, Mr. Luther and his wife filed suit for damages arising from [470]*470the surgical procedure against IOM, Dr. Joachim, Mr. Partridge, and Admiral Insurance Company, IOM’s insurer.

In January 2011, IOM and Dr. Joachim filed a dilatory exception of prematurity and a third-party demand. The claim of prematurity was based upon the failure to first present the claim against them to a medical review panel. They also filed a third-party demand against the PCF on the basis of its unexplained reversal of their qualification as health care providers. The PCF responded by filing a dilatory exception of vagueness and a declinatory exception of failure to state a cause of action. Thereafter, IOM and Dr. Joachim filed an amended third-party demand against the PCF and its Oversight Board wherein they asserted that the only relief sought in their third-party demand was a declaration by the court that they are QHCPs within the meaning of the MMA.

In July 2011, the PCF filed a motion for summary judgment in which it asserted that it was entitled to a declaration that neither IOM nor Dr. Joachim was a QHCP. In support of its motion, PCF submitted the affidavit of Susan Gremil-lion, its supervisor of the surcharge section. As such, she supervised processing of health care providers’ applications for enrollment. According to her review of records, an application for IOM to be enrolled as a certified health care provider was received on November 16, 2007. She stated that no further correspondence was received until August 18, 2010, when PCF issued a certificate of enrollment which indicated that the first date of coverage was the date of receipt of the application, November 16, 2007.1 Ms. Gremillion stated that upon receipt of notice of Mr. Luther’s claim, the PCF issued a letter mistakenly giving notice of coverage; that notice provided that enrollment could be affected by additional information. Due to later inquiries, the PCF discovered that IOM was not enrolled until after the alleged date of malpractice in the instant case. As a result, Ms. Gremillion stated that IOM was not a QHCP for purposes of the subject claim.

In September 2011, IOM and Dr. Joa-chim filed a cross motion for summary judgment in which they argued that since they reasonably relied to their detriment upon the representations of the PCF that they were QHCPs, the PCF is equitably estopped from reversing its qualification determination. They argued that while the July 7, 2009, letter stated that additional information could lead to a revision of the qualification determination, the PCF has never acknowledged the receipt of any such additional information and has not timely responded to relevant discovery requests.

IOM and Dr. Joachim filed the corporate deposition of the PCF through Ms. Gremillion, as well as the deposition of Roderick Johnson, the chairman and CEO of IOM. Ms. Gremillion testified that as medical malpractice compliance director, she oversaw the panel office, which handles all of the incoming complaints, and the surcharge department, which handles the enrollment of health care providers who chose to enroll. She admitted that no additional information was received by the PCF after the initial determination, but that the settlement caused them to “take a second look.” Ms. Gremillion also clarified that, despite the wording of its letter that the Oversight Board reserved the right to revise its determination upon receipt of new information, it was the PCF that actually made these decisions.

[471]*471Ms. Gremillion described the process by which a health care provider could become enrolled — providing proof of underlying coverage and paying a surcharge — and receive a certification document. There was proof of underlying coverage, but no surcharge payment for October 30, 2007, the date of the alleged malpractice. According to her, IOM never had a certificate of enrollment before October 30, 2007; however, Dr. Joachim had been previously enrolled individually “a few years prior to that time.”2 Furthermore, she stated that, due to a software problem, the computer system erroneously generated the letter stating they were covered. The error was apparently discovered after a certificate request in connection with the settlement proposal. She could not say whether the computer made any other similar mistakes.

In his deposition, Mr. Johnson testified that the number one factor considered by IOM in settling with the plaintiffs was the belief that they had PCF coverage. He stated that if they known otherwise, it would have affected their thought process about settling. Mr. Johnson testified that he became affiliated with IOM when it was purchased by a group of investors in September 2008. He was under the impression that all of the malpractice insurance was covered when the company was purchased.

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Related

Luther v. Iom Co.
130 So. 3d 817 (Supreme Court of Louisiana, 2013)

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Bluebook (online)
109 So. 3d 467, 2013 La. App. LEXIS 47, 2013 WL 163601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luther-v-iom-co-lactapp-2013.