O'BRIEN v. Rizvi

898 So. 2d 360, 2005 WL 833814
CourtSupreme Court of Louisiana
DecidedApril 12, 2005
Docket2004-C-2252, 2004-C-2257
StatusPublished
Cited by4 cases

This text of 898 So. 2d 360 (O'BRIEN v. Rizvi) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'BRIEN v. Rizvi, 898 So. 2d 360, 2005 WL 833814 (La. 2005).

Opinion

898 So.2d 360 (2005)

Donald E. O'BRIEN and Carol O'Brien
v.
Dr. Akbar RIZVI, Dr. Arthur Carl Plautz, Jr., St. Paul Fire & Marine Insurance Company and CHG Companies, Inc. (Formerly CompHealth, Inc.) d/b/a CompHealth.

Nos. 2004-C-2252, 2004-C-2257.

Supreme Court of Louisiana.

April 12, 2005.

*361 Beard & Sutherland, Frederick Haydel Sutherland, Shreveport, Edward P. Sutherland, Baton Rouge, Counsel for Applicant (No. 2004-C-2252).

Percy, Smith & Foote, LLP, Elizabeth Erny Foote, Alexandria, Susan Claire Segura, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Larry Michael Roedel, David Alva Woolridge, Jr., Baton Rouge, Counsel for Respondent (No. 2004-C-2252).

Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Larry Michael Roedel, David Alva Woolridge, Jr., Baton Rouge, Counsel for Applicant (No. 2004-C-2257).

Beard & Sutherland, Frederick Haydel Sutherland, Shreveport, Edward P. Sutherland, Baton Rouge, Percy, Smith & Foote, LLP, Elizabeth Erny Foote, Alexandria, Susan Claire Segura, Counsel for Respondent (No. 2004-C-2257).

KNOLL, Justice.

In this medical malpractice case we granted certiorari to consider two issues. The first issue is whether the court of appeal erred in denying the Louisiana Patient's Compensation Fund Oversight Board's (hereinafter "Board") petition of intervention on plaintiffs' request for rehearing. The second issue is whether the court of appeal erred in ruling the defendants were qualified health care providers (QHCP) under Louisiana's Medical Malpractice Act, La.Rev.Stat. Ann. 40:1299.41 et seq. (hereinafter "Act"), thereby reversing the trial court's denial of the defendants' dilatory exception of prematurity. After careful review of the record, the applicable jurisprudence and the plain language of the Act, we find the Board should have been allowed to intervene in the petition for rehearing, and further find the defendants were not qualified health care providers entitled to the protections afforded under the Act.

FACTS AND PROCEDURAL HISTORY

CompHealth is a staffing company that places locum tenens physicians in hospital and clinic positions for short-term assignments. CompHealth placed Dr. Arthur Plautz, Jr. at the Veterans Administration Hospital (VA Hospital) in Pineville, Louisiana. CompHealth sought qualification with the Louisiana Patient's Compensation Fund (hereinafter PCF) by purchasing a policy of professional liability insurance through St. Paul Fire and Marine Insurance Company (St. Paul) on a claims-made basis.[1] The policy covered *362 claims that were made from February 1, 2001 to February 1, 2002. The policy was issued on a full-time equivalency (FTE) basis, which means the premium is based on the estimated number of physician days worked by CompHealth's locum tenens physicians in Louisiana. The insured is required at the end of the policy year to audit the actual number of hours worked by the locum tenens physicians, report that amount to the insurance company, and pay an additional premium to the insurer as well as an additional surcharge to the PCF.

In February 2001, when CompHealth obtained the claims-made policy, CompHealth also submitted a check dated February 23, 2001 in the amount of $7,529 for a surcharge to the PCF. On March 8, 2001, the PCF issued CompHealth a certificate of enrollment with effective dates of February 23, 2001 to February 1, 2002.

In February 2002, CompHealth submitted a revised certificate of insurance to the PCF for the period of February 1, 2001 to February 1, 2002, reflecting the actual days worked by CompHealth's physicians in Louisiana. The revised surcharge amount due to the PCF was $16,104. CompHealth submitted the additional surcharge due of $8,575. At the same time CompHealth purchased an unlimited Extended Reporting Endorsement, or "tail" coverage, with St. Paul, which provided coverage for any alleged acts of malpractice that occurred between February 1, 2001 and February 1, 2002, even if the claim was made after February 1, 2002. CompHealth submitted to the PCF an additional surcharge on the tail coverage in the amount of $28,756.

In March, 2002, the PCF informed CompHealth that its physicians who were assigned to governmental agencies or who were not licensed in Louisiana could not participate in the PCF. This information came about by CompHealth's inquiry to the PCF, wherein CompHealth informed the PCF that assignments to VA Hospitals and "Indian Health" do not require the physicians to have a Louisiana license. CompHealth then asked the PCF if a doctor does not have a Louisiana license, can the doctor participate in the PCF? The PCF replied a health care provider must have a Louisiana license to participate in the PCF. CompHealth did not protest this response. CompHealth informed the PCF that it had reviewed the physician days worked in Louisiana, subtracting from those days the "government days where [the physicians] are not required to have a L[ouisiana] license", and requested a refund of the surcharge paid to the PCF in the amount of $19,850 for physicians who did not qualify. CompHealth received part of the refund on May 9, 2002 and the remainder on September 30, 2002.

On December 11, 2002, Donald O'Brien filed a claim with the Commissioner of Administration and the Board against Dr. Plautz and Dr. Akbar Rizvi for alleged acts of malpractice committed by Dr. Plautz, a CompHealth locum tenens physician and Dr. Rizvi, an employee of the VA Hospital. In a letter dated January 9, 2003, the PCF informed the plaintiff that none of the defendants have coverage in the PCF. On December 18, 2002, plaintiff filed suit in state court against Dr. Rizvi and Dr. Plautz, alleging malpractice arising out of medical treatment received at the VA Hospital from April 18, 2001 through January 16, 2002. The plaintiff amended the suit to add as defendants CompHealth, as Dr. Plautz's employer, and St. Paul, as the liability insurer of CompHealth and/or Dr. Plautz.[2]

*363 Defendants, Dr. Plautz, CompHealth and St. Paul, filed a dilatory exception of prematurity. The trial court denied this exception, ruling that the defendants were not qualified under the Act, therefore the plaintiffs did not have to proceed through a medical review panel before bringing suit in state court.

The court of appeal reversed. The court found that Dr. Plautz and CompHealth satisfied both prongs of La.Rev.Stat. Ann. 40:1299.42 by purchasing tail coverage which covered the claim filed on December 18, 2002, and by paying the surcharge to the PCF. Relying upon Bennett v. Krupkin, 2000-23 (La.App. 1 Cir. 3/28/02), 814 So.2d 681,[3] the court held "once a health care provider has qualified under the [MMA], the health care provider's qualification under the Act is concurrent with the coverage under the underlying insurance policy, i.e., qualification takes effect and follows the same form as the policy of insurance." O'Brien v. Rizvi, 04-086, p. 7 (La.App. 3 Cir. 6/9/04), 877 So.2d 150, 155, (citing Bennett, at p. 8, 814 So.2d at 686-687). The PCF's retroactive disqualification of CompHealth and Dr. Plautz after it had issued a certificate of enrollment and after CompHealth had paid the surcharge was found not to affect CompHealth's and Dr. Plautz's qualification. Id. at p. 8, 877 So.2d at 155.

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Cite This Page — Counsel Stack

Bluebook (online)
898 So. 2d 360, 2005 WL 833814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-rizvi-la-2005.