Weeks v. Louisiana Patient's Compensation Fund

858 So. 2d 851, 3 La.App. 3 Cir. 469, 2003 La. App. LEXIS 3023, 2003 WL 22503596
CourtLouisiana Court of Appeal
DecidedNovember 5, 2003
DocketNo. CW 03-469
StatusPublished
Cited by3 cases

This text of 858 So. 2d 851 (Weeks v. Louisiana Patient's Compensation Fund) 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
Weeks v. Louisiana Patient's Compensation Fund, 858 So. 2d 851, 3 La.App. 3 Cir. 469, 2003 La. App. LEXIS 3023, 2003 WL 22503596 (La. Ct. App. 2003).

Opinion

1 .PETERS, J.

The Louisiana Patient’s Compensation Fund (PCF) seeks supervisory writs from a judgment of the trial court denying its peremptory exception of prescription. For the following reasons, we deny the writ and remand for further proceedings.

[853]*853DISCUSSION OF THE RECORD

On March 22, 1996, Diana Weeks filed the instant medical malpractice claim arising ont of events that occurred in November of 1993, when she underwent a hysterectomy.1 She initially named Dr. Etienne R. Brown, who performed the hysterectomy, as the only defendant. On March 24, 1997, Ms. Weeks additionally filed a complaint against Dr. Flynn Taylor, who had assisted Dr. Brown in the surgery, and she joined him as a defendant on October 17, 1997.

On December 19, 2002, Ms. Weeks filed a Petition for Approval of Settlement with Health Care Provider and Insurer, in which she alleged that she and the defendants had agreed to settle all of her claims against Dr. Taylor and his insurer for the sum of $100,000.00. Additionally, Ms. Weeks requested that the trial court approve the settlement, deem the liability of Dr. Taylor admitted, and recognize her right to seek additional damages from the PCF. The PCF answered the petition and asserted therein an exception of prescription, among other things. Subsequently, the trial court entered judgment in favor of Ms. Weeks, granting her requests.

Thereafter, the PCF reasserted its exception of prescription. The trial court entered judgment denying the exception of prescription. The PCF filed the instant application for supervisory writs. We granted the PCF’s writ application for the sole purpose of calling up the matter for full consideration on the merits.

| ¡¡.OPINION

The trial court denied the PCF’s exception of prescription on the basis that the PCF lacked standing to raise the exception, noting fourth and fifth circuit jurisprudence so holding. See for example McGrath v. Excel Home Care, Inc., 01-1270, 01-1271, p. 9 (La.App. 5 Cir. 3/26/02), 810 So.2d 1283, 1288 (holding that the PCF does not have the right to raise exceptions after the limitation of liability has been satisfied because to allow it to do so “would be to permit it to raise defenses only given to a Defendant, which it is not”), writ denied, 02-1344 (La.11/27/02), 831 So.2d 284; Miller v. S. Baptist Hosp., 00-1352, p. 12 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 19 (holding that the PCF “does not have the standing to raise the issue of prescription/peremption”), writ denied, 01-3379 (La.3/28/02), 811 So.2d 943; Tucker v. Lain, 98-2273, 01-0608, 01-0609, p. 13 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, 1049 (holding that the PCF “was precluded from asserting prescription even though its rights to do so were reserved to it by the trial court”), writ denied, 01-2715 (La.1/4/02), 805 So.2d 210; Rey v. St. Paul Fire & Marine Ins. Co., 95-0661, p. 3 (La.App. 4 Cir. 11/16/95), 665 So.2d 109, 111 (holding that “once the insurer has paid its policy limits, statutory liability is admitted and the [PCF] has no standing to raise the issue of prescription”), writ denied, 95-3033 (La.3/22/96), 669 So.2d 1223.

However, we need not reach the issue of whether its status as the PCF precludes its ability to bring the exception because we conclude that the payment on behalf of the health care provider of the $100,000.00 policy limits pursuant to La. R.S. 40:1299.44(C)(5) results in the health care provider’s renouncement of any prescription that has accrued. Thus, the trial court properly denied the PCF’s exception of prescription, albeit for different reasons.

| ^Specifically, “[prescription may be renounced only after it has accrued.” [854]*854La.Civ.Code art. 3449. “[R]enunciation requires a new promise to pay the debt.... ” Lima v. Schmidt, 595 So.2d 624, 631 (La.1992). A “promise” means a declaration which gives to the person to whom it is made the right to expect or claim the performance of a specified act. Id.

Louisiana Revised Statutes 40:1299.44(C)(5)(e)2 provides:

In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

(Emphasis added.)

Recently, in Hall v. Brookshire Brothers, Ltd., 02-2404, 02-2421 (La.6/27/03), 848 So.2d 559, the supreme court interpreted then La.R.S. 40:1299.44(0(5) as allowing the quantification of victim and third-party fault in suits against the PCF when the health care provider has admitted liability by tendering the payment of $100,000.00. In so holding, the court explained that “[w]hen a defendant stipulates to liability, that defendant acknowledges that his or her fault (substandard performance of a legal duty owed to plaintiff for the protection from certain risks of harm) caused the plaintiff to sustain some damage (in the case of the qualified health care provider under the Medical Malpractice Act, that defendant stipulates that the damage he or she caused |4is a least $100,000).” Id. at 567.

Thus, for purposes of La.R.S. 40:1299.44(C)(5)(e), the stipulation of liability is an acknowledgment or admission of fault. Still, the plaintiff must “prove what damage, by kind and seriousness, was caused by defendant’s fault.” Hall, 848 So.2d at 567. Thereafter, “[t]he trier of fact shall determine the amount for which the fund is liable and render a finding and judgment accordingly.” La.R.S. 40:1299.44(C)(5)(a) (emphasis added). In effect, the aeknowledgment/admission of liability pursuant to La.R.S. 40:1299.44(0(5) operates as a declaration or promise that the PCF will pay any damages proven to be owed by the health care provider and gives the medical malpractice victim the right to expect or claim payment for damages proven to be owed by the health care provider. Thus, the admission of liability effects a renunciation of any prescription that may have accrued. Therefore, the trial court did not err in denying the PCF’s exception of prescription.

Nevertheless, the PCF urges that La.Civ.Code art. 3453 applies to allow it to assert the exception of prescription. Louisiana Civil Code Article 3453 provides:

Creditors and other persons having an interest in the acquisition of a thing or in the extinction of a claim or of a real right by prescription may plead prescription, even if the person in whose favor prescription has accrued renounces or fails to plead prescription.

[855]*855This argument was also advanced by the PCF in Kelty v. Brumfield, 534 So.2d 1331 (La.App. 4 Cir.1988),3 writs denied, 536 So.2d 1221, 1222 (La.1989). In rejecting the PCF’s argument in that regard, the fourth circuit in Kelty stated:

The Medical Malpractice Act does not contemplate the [PCF] as a party defendant. Williams v. Kushner, 449 So.2d 455 (La.1984).

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858 So. 2d 851, 3 La.App. 3 Cir. 469, 2003 La. App. LEXIS 3023, 2003 WL 22503596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weeks-v-louisiana-patients-compensation-fund-lactapp-2003.