STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-858
TINA LYNETTE WATKINS
VERSUS
DR. RICHARD BARRY
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 94-596 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan, Judges.
AFFIRMED.
R. Ray Orrill, Jr. Leslie A. Cordell W. Christopher Beary Orrill, Cordell & Beary, L.L.C. 412 West University Avenue, Suite 206 Lafayette, LA 70506 (337) 237-8200 Counsel for Plaintiff/Appellee: Tina Lynette Watkins
Michael Keith Prudhomme Lundy & Davis P. O. Box 3010 Lake Charles, LA 70602 (337) 439-0707 Counsel for Intervenor/Appellant: Louisiana Patients’ Compensation Fund Milo Nickel, Jr. Nadia de la Houssaye David B. Gooch The Dill Firm, A.P.L.C. P.O. Box 3324 Lafayette, LA 70502-3324 Counsel for Intervenor/Appellant: Louisiana Patients’ Compensation Fund DECUIR, Judge.
The Louisiana Patients’ Compensation Fund pursued an appeal of certain post-
judgment rulings in this medical malpractice case. Finding no merit to the position
advocated by the PCF, we affirm the judgment rendered in favor of the plaintiff, Tina
Lynette Watkins.
In 1990, Watkins gave birth to a son, Dustin P. Watkins. Shortly after his birth,
doctors determined the child had suffered a stroke in utero, which caused serious and
permanent debilitating injuries. The plaintiff asserted a medical malpractice claim
against the treating obstetrician, Dr. Richard J. Barry, and Lake Charles Memorial
Hospital. After trial on the merits, judgment was rendered against Dr. Barry and the
PCF on December 8, 2003, for the maximum amount of medical malpractice
damages, $500,000.00, plus accrued medical and other expenses in the amount of
$437,193.08. Future medical and custodial care expenses were also awarded and, in
accordance with La.R.S. 40:1299.43(A)(2), were specifically itemized and quantified
at over $6,000,000.00, including custodial care for twelve hours a day until Dustin’s
eighteenth birthday and twenty-four hour a day for the remainder of his life. Dr.
Barry paid his portion of the judgment. On appeal by the PCF, the judgment was
affirmed as amended so as to clarify the computation of judicial interest, and
supervisory writs were denied by the supreme court. See Watkins v. Lake Charles
Mem’l Hosp., 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-0145
(La. 4/8/05), 898 So.2d 1279.
Immediately after the judgment became final, the plaintiff made a demand for
payment. In June of 2005, the PCF paid a portion of the judgment; the payment
included general damages as well as accrued medical and custodial care expenses
incurred up to November 19, 2003, the date of trial. The following month, the
plaintiff again made demand for payment of expenses incurred since the date of trial. The PCF notified the plaintiff that she would have to forward a signed W-9 taxpayer
identification form and notes reflecting the hours worked and duties performed by the
custodial care provider. The plaintiff responded with a W-9 form in the name of the
Dustin P. Watkins Special Needs Trust and an affidavit stating that Dustin is still
alive and that his disabilities have not diminished since the date of trial. The plaintiff
requested that future custodial care payments be made to the Special Needs Trust, and
she asserted that a record of the hours and duties of the custodial care provider was
not required by law or by the judgment rendered in her favor.
Six weeks later, in September of 2005, the plaintiff filed the instant rule
alleging the PCF had arbitrarily refused to pay custodial care expenses. She also
requested an order that further payments be made to the Special Needs Trust. The
trial court ruled in the plaintiff’s favor. The PCF’s numerous exceptions were
overruled, and it was ordered to make quarterly advanced payments of custodial care
expenses to the trust, at the hourly rate specified in the original 2003 judgment, upon
receipt of certification that there has been no change in Dustin’s condition in the
previous thirty days.
In this appeal, the PCF has presented three assignments of error:
1. The trial court erred in ordering the PCF to pay future medical care
payments prior to the service being provided.
2. The trial court erred by holding that a plaintiff who submits a claim for
reimbursement of future medicals pursuant to La.R.S. 40:1299.43 need
not provide any evidence that the services were actually rendered.
3. The trial court erred in ordering the PCF to pay custodial care payments
to a Special Needs Trust instead of the actual care provider.
2 After due consideration of the provisions of the Medical Malpractice Act,
La.R.S. 40:1299.41 et seq., and relevant jurisprudence applicable to this case, we find
no merit to the arguments advanced by the PCF and affirm the ruling of the trial
court.
By requiring the plaintiff to submit verification of custodial care expenses, the
PCF ignores the mandate of the 2003 judgment. The judgment established both the
need and amount of future expenses. While the judgment is not made executory until
a claim has been submitted to the PCF, the PCF, in administering the claim, does not
have authority to alter the terms of the final judgment in the plaintiff’s favor.
Disputes between the plaintiff and the PCF are to be resolved in the district court
from which the original judgment issued. La.R.S. 40:1299.43(E)(1). In fact, in a
dispute between the PCF and a claimant over the validity of expenses, the PCF has
the burden of proof. See Bartee v. Children’s Clinic of S.W. La., 05-583 (La.App. 3
Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La. 3/24/06), 925 So.2d 1230.
The PCF’s obligation to pay future medical expenses is set forth in La.R.S.
40:1299.43(C):
Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory by the jury or the court’s finding or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and related benefits that will be incurred after the date of settlement is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.
In an effort to enforce the PCF’s statutory obligation to the plaintiff, the trial
court fashioned a plan for the quarterly submission of verified claims, allowing for
timely payment by the PCF and no out-of-pocket costs to the plaintiff.
3 The PCF has refused to implement the trial court’s order and attempts to
quibble over the word “incurred.” The PCF contends that medical and custodial care
expenses are payable to a plaintiff only after the service has been provided, a bill has
been received by the plaintiff and submitted to the PCF, and the PCF has reviewed
it within thirty days of receipt. By contrast, the trial court ordered the PCF to make
prospective payments for custodial care at the beginning of each quarter in which
custodial care would be required.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-858
TINA LYNETTE WATKINS
VERSUS
DR. RICHARD BARRY
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 94-596 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan, Judges.
AFFIRMED.
R. Ray Orrill, Jr. Leslie A. Cordell W. Christopher Beary Orrill, Cordell & Beary, L.L.C. 412 West University Avenue, Suite 206 Lafayette, LA 70506 (337) 237-8200 Counsel for Plaintiff/Appellee: Tina Lynette Watkins
Michael Keith Prudhomme Lundy & Davis P. O. Box 3010 Lake Charles, LA 70602 (337) 439-0707 Counsel for Intervenor/Appellant: Louisiana Patients’ Compensation Fund Milo Nickel, Jr. Nadia de la Houssaye David B. Gooch The Dill Firm, A.P.L.C. P.O. Box 3324 Lafayette, LA 70502-3324 Counsel for Intervenor/Appellant: Louisiana Patients’ Compensation Fund DECUIR, Judge.
The Louisiana Patients’ Compensation Fund pursued an appeal of certain post-
judgment rulings in this medical malpractice case. Finding no merit to the position
advocated by the PCF, we affirm the judgment rendered in favor of the plaintiff, Tina
Lynette Watkins.
In 1990, Watkins gave birth to a son, Dustin P. Watkins. Shortly after his birth,
doctors determined the child had suffered a stroke in utero, which caused serious and
permanent debilitating injuries. The plaintiff asserted a medical malpractice claim
against the treating obstetrician, Dr. Richard J. Barry, and Lake Charles Memorial
Hospital. After trial on the merits, judgment was rendered against Dr. Barry and the
PCF on December 8, 2003, for the maximum amount of medical malpractice
damages, $500,000.00, plus accrued medical and other expenses in the amount of
$437,193.08. Future medical and custodial care expenses were also awarded and, in
accordance with La.R.S. 40:1299.43(A)(2), were specifically itemized and quantified
at over $6,000,000.00, including custodial care for twelve hours a day until Dustin’s
eighteenth birthday and twenty-four hour a day for the remainder of his life. Dr.
Barry paid his portion of the judgment. On appeal by the PCF, the judgment was
affirmed as amended so as to clarify the computation of judicial interest, and
supervisory writs were denied by the supreme court. See Watkins v. Lake Charles
Mem’l Hosp., 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-0145
(La. 4/8/05), 898 So.2d 1279.
Immediately after the judgment became final, the plaintiff made a demand for
payment. In June of 2005, the PCF paid a portion of the judgment; the payment
included general damages as well as accrued medical and custodial care expenses
incurred up to November 19, 2003, the date of trial. The following month, the
plaintiff again made demand for payment of expenses incurred since the date of trial. The PCF notified the plaintiff that she would have to forward a signed W-9 taxpayer
identification form and notes reflecting the hours worked and duties performed by the
custodial care provider. The plaintiff responded with a W-9 form in the name of the
Dustin P. Watkins Special Needs Trust and an affidavit stating that Dustin is still
alive and that his disabilities have not diminished since the date of trial. The plaintiff
requested that future custodial care payments be made to the Special Needs Trust, and
she asserted that a record of the hours and duties of the custodial care provider was
not required by law or by the judgment rendered in her favor.
Six weeks later, in September of 2005, the plaintiff filed the instant rule
alleging the PCF had arbitrarily refused to pay custodial care expenses. She also
requested an order that further payments be made to the Special Needs Trust. The
trial court ruled in the plaintiff’s favor. The PCF’s numerous exceptions were
overruled, and it was ordered to make quarterly advanced payments of custodial care
expenses to the trust, at the hourly rate specified in the original 2003 judgment, upon
receipt of certification that there has been no change in Dustin’s condition in the
previous thirty days.
In this appeal, the PCF has presented three assignments of error:
1. The trial court erred in ordering the PCF to pay future medical care
payments prior to the service being provided.
2. The trial court erred by holding that a plaintiff who submits a claim for
reimbursement of future medicals pursuant to La.R.S. 40:1299.43 need
not provide any evidence that the services were actually rendered.
3. The trial court erred in ordering the PCF to pay custodial care payments
to a Special Needs Trust instead of the actual care provider.
2 After due consideration of the provisions of the Medical Malpractice Act,
La.R.S. 40:1299.41 et seq., and relevant jurisprudence applicable to this case, we find
no merit to the arguments advanced by the PCF and affirm the ruling of the trial
court.
By requiring the plaintiff to submit verification of custodial care expenses, the
PCF ignores the mandate of the 2003 judgment. The judgment established both the
need and amount of future expenses. While the judgment is not made executory until
a claim has been submitted to the PCF, the PCF, in administering the claim, does not
have authority to alter the terms of the final judgment in the plaintiff’s favor.
Disputes between the plaintiff and the PCF are to be resolved in the district court
from which the original judgment issued. La.R.S. 40:1299.43(E)(1). In fact, in a
dispute between the PCF and a claimant over the validity of expenses, the PCF has
the burden of proof. See Bartee v. Children’s Clinic of S.W. La., 05-583 (La.App. 3
Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La. 3/24/06), 925 So.2d 1230.
The PCF’s obligation to pay future medical expenses is set forth in La.R.S.
40:1299.43(C):
Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory by the jury or the court’s finding or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and related benefits that will be incurred after the date of settlement is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.
In an effort to enforce the PCF’s statutory obligation to the plaintiff, the trial
court fashioned a plan for the quarterly submission of verified claims, allowing for
timely payment by the PCF and no out-of-pocket costs to the plaintiff.
3 The PCF has refused to implement the trial court’s order and attempts to
quibble over the word “incurred.” The PCF contends that medical and custodial care
expenses are payable to a plaintiff only after the service has been provided, a bill has
been received by the plaintiff and submitted to the PCF, and the PCF has reviewed
it within thirty days of receipt. By contrast, the trial court ordered the PCF to make
prospective payments for custodial care at the beginning of each quarter in which
custodial care would be required. In other words, the court required the PCF to pay
up front for care that would be needed for the next ninety days. This is no different
than purchasing a movie ticket prior to walking into the theater. Quite simply, we
find the effects of the PCF’s administration, i.e., custodial care workers must wait
thirty days to be paid, or catastrophically injured patients must pay out of pocket for
custodial care, only to recoup it months later from the PCF, to be unconscionable.
The trial court’s remedy of a quarterly payment plan upon certification by the plaintiff
that the need for care remains, is a practical solution to what can be an administrative
nightmare.
In an effort to cast suspicion on the intentions of the plaintiff, the PCF also
argues that because the plaintiff is providing the custodial care to her son personally,
she is attempting to circumvent tax and Medicaid laws by seeking payment to the
Special Needs Trust. This argument is baseless. Federal law provides for the
establishment of a special needs trust to provide funding for the care of disabled
persons in addition to Medicaid or Social Security disability benefits for which the
person may be eligible. 42 U.S.C. § 1396. Payments by the PCF or any private
insurer or other entity to such a trust does not constitute participation in a fraud.
Nevertheless, the PCF is not without recourse in the event that abuse occurs or
is suspected. Section 1299.43(E)(1) provides that “the district court from which final
4 judgment issues shall have continuing jurisdiction in cases where medical care and
related benefits are determined to be needed by the patient.” Section 1299.43(G)
allows the PCF to require the plaintiff to submit to periodic examinations by the
physician of its choice. These remedies are in addition to the right to appeal, which
the PCF exercised fully in this case to no avail. We know of no other defendant so
fortunate as to have post-judgment rights of review, as well as the lifetime of the
plaintiff, to pay damages, as the PCF.
Regarding the PCF’s contention that the trial court erred in requiring it to make
payments to the Dustin P. Watkins Special Needs Trust, we find no merit to this
argument.
Finding no manifest error in the ruling of the trial court, we affirm. All costs
of this appeal are assessed to the PCF.