Hon. John W. Greene (Ret.), as Undertutor of and on Behalf of the Minor Child, Haley Jones Versus Gainsburgh, Benjamin David, Meunier & Warshauer, L.L.C., Gary B. Roth, Boxer & Gerson, LLP, Earl Keyes, Sessions, Fishman, Nathan & Israel, L.L.C., Orrill, Cordell & Beary, LLC, Vincent J. Booth and Scott Gardner

SHANNON JONES AND JENNIFER JONES, NO. 19-CA-141
INDIVIDUALLY AND ON BEHALF OF THEIR C/W
DAUGHTER, HALEY JONES 19-CA-142

VERSUS FIFTH CIRCUIT

ABC INSURANCE COMPANY AND COBE COURT OF APPEAL
CARDIOVASCULAR, INC., ET AL
STATE OF LOUISIANA
C/W

HON. JOHN W. GREENE (RET.), AS
UNDERTUTOR OF AND ON BEHALF OF
THE MINOR CHILD, HALEY JONES

VERSUS

GAINSBURGH, BENJAMIN DAVID,
MEUNIER & WARSHAUER, L.L.C., GARY B.
ROTH, BOXER & GERSON, LLP, EARL
KEYES, SESSIONS, FISHMAN, NATHAN &
ISRAEL, L.L.C., ORRILL, CORDELL &
BEARY, LLC, VINCENT J. BOOTH AND
SCOTT GARDNER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 535-525 C/W 707-435, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

January 29, 2020

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED; MOTION TO
DISMISS APPEAL DENIED
HJL
MEJ
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
JENNIFER BRUNELLE, INDIVIDUALLY AND ON BEHALF OF HER MINOR
DAUGHTER, HALEY JONES
Mary G. Knapp

COUNSEL FOR DEFENDANT/APPELLEE,
LOUISIANA PATIENT'S COMPENSATION FUND AND THE LOUISIANA
PATIENT'S COMPENSATION FUND OVERSIGHT BOARD
Conrad Meyer
Charles O. Taylor
Meghan E. Ruckman

LILJEBERG, J.

Plaintiff/Appellant, Jennifer Brunelle, seeks review of the trial court’s

October 16, 2018 judgment, which denied in part plaintiffs’ rule for contempt filed

against defendants/appellees, The Louisiana Patient’s Compensation Fund and The

Louisiana Patient’s Compensation Fund Oversight Board (collectively referred to

as “the PCF”). Ms. Brunelle also seeks review of provisions contained in the

judgment which she contends established additional requirements for her to obtain

reimbursement for custodial care benefits she provided to her daughter. For the

reasons stated more fully below, we affirm the trial court’s October 16, 2018

judgment. We also deny the motion to dismiss appeal filed by the PCF.

FACTS AND PROCEDURAL HISTORY

This matter involves a medical malpractice and products liability action

brought in 1999 by Shannon Jones and Jennifer Brunelle, individually and on

behalf of their daughter, Haley Gabrielle Jones, for severe brain injuries Haley

sustained during a February 20, 1998 heart surgery. The case entails an extensive

and complicated procedural history. The issues currently before this Court arise

from a judgment entered by the trial court on October 16, 2018, following a

hearing on a rule for contempt filed against the PCF by plaintiffs, Jennifer

Brunelle, individually and as tutor for Haley Jones, and the undertutor for Haley,

Hon. John W. Greene (ret.).1

The rule for contempt alleged, inter alia, that as of February 27, 2018, the

PCF failed to pay custodial care expenses due to Jennifer Brunelle in the amount of

$250,840.40, dating back to February 4, 2015.2 Ms. Brunelle alleged that she was

previously awarded coverage for 16 hours a day of custodial care for Haley at a

1
The appeal currently before this Court was only filed by Ms. Brunelle. The undertutor did not join in
the motion and order for appeal and did not join in the briefing submitted by Ms. Brunelle to this Court.
2
In subsequent filings, Ms. Brunelle also alleged that the PCF failed to timely pay for other future
medical benefits and equipment, such as a computer, eyeglasses and a service dog, allegedly owed to
Haley. The only benefits at issue in this appeal are the custodial care benefits.

19-CA-141 C/W 19-CA-142 1

rate of $15.00 per hour, or in the alternative, a 10 hour/6 hour split when Haley

was in school, with a reduced rate of $7.43 for the school hours. Ms. Brunelle

further alleged that she provided the PCF adjustor with time sheets in accordance

with the PCF’s administrative rules. However, she claimed that the PCF refused to

reimburse her for the custodial care expenses. The rule for contempt also sought

legal interest, court costs and attorney fees due to the PCF’s failure to pay the

amounts due within 30 days after submission of her claim for payment of the

benefits.

The PCF’s obligation to pay the custodial care benefits arose from a

judgment entered by the trial court on April 4, 2016. This judgment contained

both the terms of a consent judgment entered into between plaintiffs and the PCF,

as well as the trial court’s determination, following a trial held on March 10, 2016,

regarding the hourly rate of reimbursement Ms. Brunelle would receive for

custodial care provided to Haley.

The relevant portions of the April 4, 2016 judgment containing the

provisions consented to by the parties provide as follows:

Based on the consent of the parties;

IT IS ORDERED, ADJUDGED AND DECREED that the LCPF
has, pursuant to La. R.S. 40:1231.1 et seq., accepted total
responsibility for the actions of the perfusionist at Ochsner Hospital
who caused the injuries and damages to Haley Gabrielle Jones, a
minor, on February 17, 1998, which includes stipulating to liability,
cause and damages, including future medical damages as defined by
La. R.S. 40:1231.3.
* * *

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the PCF will provide coverage for sixteen (16) hours a day of
custodial care provided by a family member or, in the alternative,
when Haley is in school, a ten (10) hour/six (6) hour split, meaning
ten (10) hours at the full hourly rate and six (6) hours at a reduced
hourly rate.

19-CA-141 C/W 19-CA-142 2

The portion of the April 4, 2016 judgment entered by the trial court

following the trial held on March 10, 2016, provides as follows:3

After consideration of the pleadings, the memoranda, the law, the
arguments of counsel, and the evidence presented at trial;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Court determines that the hourly rate of reimbursement for
sixteen (16) hours a day of custodial care provided by a family
member to Haley shall be $15.00 per hour. When Haley is in school,
a ten (10) hour/six (6) hour split will apply, as the parties have agreed,
and the reduced hourly rate applicable to the six (6) hours Haley is in
school shall be $7.43. The Court notes that the parties have argued
for various hourly rates in this matter, with the PCF arguing that its
uniform rate of reimbursement of $7.43 should apply and the
Undertutor arguing that various rates in excess of that amount, with a
suggested minimum of $18.00, be applied. The Court believes that a
full hourly rate of $15.00 is an appropriate amount of reimbursement
for Mrs. Brunelle, especially considering the multitude and extent of
services and related benefits she provides to Haley. Although the
Undertutor argues that Mrs. Brunelle should be reimbursed separately
for case management and other services rendered to Haley, the Court
believes that the reimbursement for custodial care sufficiently covers
those services.

The PCF argued in opposition that Ms. Brunelle could not meet her burden

of proof to establish contempt. The PCF argued that the rules and regulations set

forth in the Louisiana Administrative Code govern the payment process and

required Ms. Brunelle to provide a detailed statement regarding the custodial care

services provided to Haley. Louisiana Administrative Code, Tit. 37, Pt. III,

§1917(A)(4), provides, in pertinent part, that “[a]ll claims for nursing or sitter care

payments, including those for family members providing such care, must include a

signed, detailed statement by the person rendering nursing or sitter care, setting

forth the date, time and type of care rendered to and for the patient.” [Emphasis

added.] The PCF argued that Ms. Brunelle’s time sheets failed to include any

information regarding the type of care she provided to Haley on a daily basis and

3
The record before this Court does not contain the transcript or evidence from the March 10, 2016 trial.

19-CA-141 C/W 19-CA-142 3

therefore, due to the failure to comply with this requirement, the PCF could not be

held in contempt.

Plaintiffs argued in reply that the administrative rule cited above did not

apply to the claims Ms. Brunelle submitted to the PCF because the April 4, 2016

judgment did not require compliance with this rule in order to receive payment.

Plaintiffs further argued that the administrative rule only applied to situations

where the PCF, as opposed to the trial court, determined the appropriate rate to pay

a claimant for custodial care. Plaintiffs noted that prior to rendering the April 4,

2016 judgment, the trial court conducted a trial where it heard testimony and

reviewed exhibits regarding the services Ms. Brunelle provided to Haley and based

on that evidence, determined the rate she would be paid for those services.

Therefore, plaintiffs argued that no valid reason existed for requiring Ms. Brunelle

to provide an explanation of the services she provided to Haley on a daily basis,

other than to harass Ms. Brunelle and delay payment.

On August 24, 2018, plaintiffs filed an additional memorandum in support

of the rule for contempt asking the trial court to enforce the April 4, 2016 judgment

for the same reasons previously stated. Plaintiffs also asked the trial court to

clarify the April 4, 2016 judgment by providing an order stating that Ms. Brunelle

“only be required to submit biweekly time sheets with the date and the number of

hours, if any, Haley was in school.”

The trial court held a hearing on the rule for contempt on September 10,

2018. At the beginning of the hearing the trial court held a bench conference with

counsel, which was not transcribed. After completing the bench conference, the

trial court did not conduct a full evidentiary hearing on plaintiffs’ rule for

contempt. Rather, the trial court stated that it needed to provide clarifications in

order to address several issues that had arisen regarding the execution of the April

4, 2016 judgment. The trial court then proceeded to provide its understanding of

19-CA-141 C/W 19-CA-142 4

the parties’ positions regarding the failure to pay the custodial care benefits. The

trial court stated that the time sheets submitted by Ms. Brunelle did not include any

indication regarding the type of care rendered or provided to Haley and further

noted that the PCF claimed this information was necessary pursuant to

§1917(A)(4) of the La. Admin. Code, Tit. 37, Pt. III., in order to honor the

payment requests. The trial court then recognized that the PCF was willing to

accept a “generic” or “blanket” statement regarding the services Ms. Brunelle

provided to Haley on a daily basis, and that the same statement could be copied

from day-to-day, unless there was a significant material change or deviation in the

services she was providing to Haley. The transcript indicates that the trial court

accepted the PCF’s proposal regarding the daily statement of services as a

requirement for Ms. Brunelle to obtain payment for the custodial care services.

The trial court then shifted the discussion to the plaintiffs’ concerns

regarding the tax consequences Ms. Brunelle would incur if the PCF paid all past

due amounts in a single payment. During this discussion, the trial court indicated

that Ms. Brunelle would also have to amend the previously submitted time sheets

to include a statement of the services provided:

THE COURT:

Ms. Knapp, you have - -

* * *

THE COURT:

-- indicated that -- that because of the amount of money that is
owed, when these time sheets are updated with that statement that is
going to be copied on those various entries, that you don’t want all
that money at one point because of the tax consequences to Ms.
Brunelle.

The PCF’s counsel responded that he would confer with his client, and

indicated the PCF could “work something out” if ordered to do so by the trial

court. Ms. Brunelle’s counsel then requested interest on the past due payments

19-CA-141 C/W 19-CA-142 5

and the trial court indicated that it would not order the PCF to pay interest because

the time sheets were not “properly submitted.” During this discussion, the trial

court again indicated that the previously submitted time sheets would need to be

updated with a statement of the services provided:

THE COURT:

Until [the time sheets] are updated with the statement of the services
provide (sic) or the treatment rendered, so I don’t know if it would be
appropriate to charge the PCF interest until those - - those time sheets
are - - are submitted with the appropriate details.

Ms. Brunelle’s counsel finally requested that the trial court award her client

$30,000.00 for attorney’s fees incurred as a result of the difficulties and delays

caused by the PCF with respect to the payment of custodial care benefits. Counsel

disagreed that the law and the prior judgment entered by the trial court required

Ms. Brunelle to submit a statement of the services. However, she noted that the

trial court “has given us certain guidance today which is important and easy to

follow,” and noted that she understood the trial court “wanting us to add another

paragraph” to the judgment regarding this guidance. However, she argued that

this was not a sufficient reason for the PCF to withhold all payments of the

custodial care benefits, and further argued that the PCF should have made a partial

tender while the parties attempted to resolve their disputes. The trial court stated

that it did not find the PCF acted unreasonably and declined the request for

attorney’s fees.

The trial court then ordered the PCF to submit a written judgment. In

summation, the trial court stated as follows with respect to the custodial care

payments:

THE COURT:

As far as the judgment goes, I - - I think with regard to the
forms that are submitted by Ms. Brunelle, again, it has to be an
indication of the type of service to be provided or that was provided as
required by the administrative rules so I don’t think that’s

19-CA-141 C/W 19-CA-142 6

unreasonable. Again, as far as I’m concern (sic), that can be the same
paragraph for each day until there is a significant change in the type of
service to be provided or that was provided.

* * *

It is certainly not my intention that Haley has to fight for
everything that she needs to get throughout the process that the PCF is
going to be managing this, but at the same time, I think the PCF is
entitled to have some sort of documentation supporting these pay outs.
So in that regard, that’s the way I would expect this to proceed in the
future.

The record indicates that the parties each submitted their own version of the

judgment from the September 10, 2018 hearing for the trial court’s signature. Ms.

Brunelle’s version of the judgment provided for the payment of the time sheets

submitted up to the date of the September 10, 2018 hearing in two installments to

be paid in January 2019 and January 2020, with no requirement for any statement

of services to be provided by Ms. Brunelle for these past time sheets. The

proposed judgment further provided that from September 10, 2018 forward, Ms.

Brunelle would provide time sheets that included a description of the types of

services provided to Haley.

On October 16, 2018, the trial court signed the alternative proposed

judgment submitted by the PCF, which ordered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that
pursuant to LA. R.S. 40:1231.1 et seq. the LPCF shall pay petitioner,
Jennifer Brunelle, all of the amounts of custodial care owed from
February 4, 2015, to the present, for providing custodial care to Haley
Jones upon completion of the submission of timesheets pursuant to
provisions of LA. R.S. 40:1231.3 related to “Future Medical Care and
Related Benefits” and the provisions related to payment for “Nursing
Care; Sitter Care” outlined in 37 LA ADC Pt. III, §1917;

IT IS ORDERED, ADJUDGED AND DECREED that
Jennifer Brunelle or whomever is rendering the custodial care for
Haley Jones shall submit such documentation, including timesheets,
for payment of the custodial care pursuant to the provisions of LA
R.S. 40:1231.1 et. seq., the provisions of LA R.S. 40:1231.3 related to
“Future Medical Care and Related Benefits” and the provisions
related to payment for “Nursing Care; Sitter Care” outlined in 37 LA
ADC Pt. III, §1917, and pursuant to the terms of the Judgment dated

19-CA-141 C/W 19-CA-142 7

March 10, 2016,4 with said timesheets to include a description of the
types of services provided to Haley Jones on each of the days included
in the timesheet, with the LPCF allowing Mrs. Brunelle to copy the
same statements from day-to-day unless there is some significant
material deviation in the type of care and/or services provided,
wherein Mrs. Brunelle is required to document the deviation.

Ms. Brunelle filed a timely motion for devolutive appeal on December 11,

2018, which the trial court granted on December 17, 2018. On May 24, 2019, the

PCF filed a motion to dismiss the appeal for lack of jurisdiction, which was

referred to this panel to consider with the merits of the appeal.

DISCUSSION

On appeal, Ms. Brunelle raises several assignments of error with respect to

the October 16, 2018 judgment rendered by the trial court. She first argues that the

trial court erred by failing to find the PCF in contempt of its obligations to pay

custodial care benefits as set forth in the April 4, 2016 judgment and by failing to

award her interest and attorney’s fees for the PCF’s failure to pay these benefits in

a timely manner. Ms. Brunelle next argues that the trial court exceeded its

authority by granting relief in favor of the PCF ‒ that is requiring her to include a

statement of the services she provided to Haley on her daily time sheets ‒ in

response to her rule for contempt against the PCF. She contends the requirements

set forth in the administrative rule governing nursing and sitter care was not

included as part of the April 4, 2016 judgment. Finally, Ms. Brunelle argues that

the October 16, 2018 judgment signed by the trial court is not in conformity with

the trial court’s rulings during the September 10, 2018 hearing.

Jurisdiction

Before we consider the merits of Ms. Brunelle’s appeal, we must first

address the PCF’s motion to dismiss the appeal for lack of jurisdiction. The PCF

4
As noted above, the trial court held the trial to determine the hourly rate it would award Ms. Brunelle for
custodial care benefits on March 10, 2016, and took the issue under submission. It entered the written
judgment on this issue, as well as the consent provisions agreed to by the parties, on April 4, 2016.

19-CA-141 C/W 19-CA-142 8

contends that Ms. Brunelle is seeking review of the trial court’s judgment denying

her rule for contempt, which is interlocutory in nature and not immediately

appealable. See Sullivan v. Malta Park, 16-875 (La. App. 4 Cir. 1/31/17), 215

So.3d 705, 708.

Ms. Brunelle argues in response that she does not simply seek review of the

denial of the rule for contempt, but also appeals the provisions the trial court added

to the October 16, 2018 judgment regarding the statement of services she must

provide with her time sheets. She argues that, though her rule for contempt was

set on September 10, 2018, an actual contempt trial did not ensue. She contends

the hearing focused primarily on establishing the obligations she would have to

satisfy before the PCF would pay her custodial care benefits. She contends these

additional provisions substantively amended her obligations under the April 4,

2016 judgment and was a determination on the merits that constitutes an

appealable judgment. Ms. Brunelle further argues that these amendments were

unwarranted and exceeded the trial court’s authority because the only matter

pending at the September 10, 2018 hearing was the rule for contempt seeking an

order to compel the PCF to pay the past due custodial care benefits and award

attorney’s fees and costs.

The PCF responds by arguing that the October 16, 2018 judgment did not

change or alter the contents of the April 4, 2016 judgment, because this judgment

required the PCF to comply with the applicable provisions of the Louisiana

Medical Malpractice Act, La. R.S. 40:1231.1, et. seq. (“LMMA”), when

processing reimbursements for custodial care.

Appeals are favored in law, must be maintained whenever possible, and will

not be dismissed for mere technicalities. 9029 Jefferson Highway, LLC v. S & D

Roofing, LLC, 15-686 (La. App. 5 Cir. 2/24/16), 187 So.3d 522, 524. Any doubt

concerning the validity of an appeal should be resolved in favor of the appellant to

19-CA-141 C/W 19-CA-142 9

the end that an appeal can be sustained. Id. Unless the grounds for dismissal are

free from doubt, the appeal should be maintained. Morice v. Alan Yedor Roofing

and Construction, 16-532 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079.

Although an interlocutory judgment is generally not appealable, an

interlocutory judgment is subject to review on appeal when an appealable

judgment has been rendered in the case. Ellefson v. Ellefson, 616 So.2d 221, 224

(La. App. 5th Cir. 1993), writ denied, 617 So.2d 1183 (La. 1993). When an

unrestricted appeal is taken from a final judgment, the appellant is entitled to a

review of all adverse interlocutory rulings prejudicial to him, in addition to the

review of the correctness of the final judgment from which the party has taken the

appeal. Sellers v. El Paso Indus. Energy, L.P., 08-403 (La. App. 5 Cir. 2/10/09), 8

So.3d 723, 731.

In its reply in support of its motion to dismiss, the PCF cites to Rathman v.

Emerald Forest, LP, 14-64 (La. App. 1 Cir. 11/7/14), 2014 WL 5800458

(unpublished opinion), to counter Ms. Brunelle’s argument that the October 16,

2018 judgment expanded the provisions of the April 4, 2016 judgment. In

Rathman, the parties entered into a consent judgment whereby the defendant

condominium association, Emerald Forest, agreed to complete certain repairs to

the plaintiff’s condominium by using the services of a specific third party

contractor, Western Weatherproofing, named in the judgment. For reasons not

fully explained in the opinion, Western Weatherproofing was not able to provide

the required services and the plaintiff filed a rule for contempt against Emerald

Forest. Following a hearing on the contempt rule, the trial court entered an order

allowing Emerald Forest 90 days to engage a new contractor. Emerald Forest

appealed the ruling and the appellate court dismissed the appeal finding that the

trial court’s decision to allow additional time to engage a new contractor was not a

substantive amendment to the prior judgment.

19-CA-141 C/W 19-CA-142 10

We find the present matter to be factually distinguishable from Rathman as

the provisions added by the trial court in the present matter add new details

regarding the information Ms. Brunelle must provide in order to comply with the

applicable administrative rule. Furthermore, contrary to the PCF’s argument, the

April 6, 2016 judgment does not contain any language regarding the procedures

and requirements for custodial care reimbursements. The only references to the

LMMA in the April 6, 2016 judgment are general citations contained in the first

paragraph of the judgment quoted above.

It is apparent from the plain language of the October 16, 2018 judgment that

the trial court did not simply deny plaintiffs’ rule for contempt and request for

attorney’s fees and costs. The trial court’s October 16, 2018 judgment added

provisions which confirmed the application of the requirements of La. Admin.

Code, Tit. 37, Pt. III, § 1917 to Ms. Brunelle’s claims for custodial care payments.

The judgment also implemented the concession offered by the PCF during the

hearing to allow Ms. Brunelle to comply with Section 1917 by using the same

statement of services from day-to-day unless there is a significant material

deviation in the custodial care provided.

The parties do not dispute that the April 4, 2016 was a final judgment that

resolved all claims existing between plaintiffs and the PCF. We find that we have

jurisdiction to review Ms. Brunelle’s appeal of the merits of these additional

substantive provisions which the trial court added to clarify and implement the

final judgment previously entered between the parties. Because the denial of the

rule for contempt is raised in connection with the appeal of a final judgment, this

Court has jurisdiction to consider all issues addressed in the October 16, 2018

judgment.

Accordingly, we deny the PCF’s motion to dismiss Ms. Brunelle’s appeal

for lack of jurisdiction.

19-CA-141 C/W 19-CA-142 11

Rule for Contempt

On appeal, Ms. Brunelle first argues that the trial court erred in denying the

rule for contempt and failing to award attorney’s fees and interest against the PCF.

She contends that pursuant to the terms of April 4, 2016 judgment, the only

information she is required to provide to the PCF in order to obtain payment for the

custodial care she provides to Haley each day is whether or not Haley was in

school that day, and if so, the hours she was in school. She further claims that if

the PCF wanted to require compliance with the provisions of La. Admin. Code,

Tit. 37, Pt. III, § 1917 before paying her for the custodial care, the PCF should

have included this provision in the consent agreement. Ms. Brunelle argues that

information regarding the care she provides to Haley each day is unnecessary as it

has no bearing on her rate of compensation set by the trial court and further notes

that she receives the same amount of reimbursement regardless of the services she

provides to Haley. She contends the PCF concocted these requirements to harass

her and unjustly delay payment.

The PCF argues in response that the trial court properly denied the rule for

contempt based on its recognition that the time sheets submitted by Ms. Brunelle

were insufficient due to their failure to comply with La. Admin. Code, Tit. 37, Pt.

III, § 1917(A)(4), which requires a signed detailed statement by the person

rendering care, setting forth the date, time and type of care rendered to and for the

patient.

We do not find that the trial court erred by refusing to hold the PCF in

contempt of court for refusing to pay the custodial care benefits awarded in the

April 4, 2016 judgment. While the April 4, 2016 judgment does not provide

specifics regarding the submission or payment of claims for custodial care or any

other benefits addressed in the judgment, it also does not exclude the application of

any provision of the LMMA or the corresponding administrative rules governing

19-CA-141 C/W 19-CA-142 12

the PCF’s administration and payment of future medical benefits awarded on

behalf of Haley Jones.

La. R.S. 40:1231.3(C) provides that, with respect to a plaintiff found to be in

need of future medical care, once a judgment is entered in favor of a plaintiff or a

settlement is reached between a plaintiff and the PCF, the plaintiff may submit

claims to the PCF for all future medical care and related benefits. See also La.

Admin. Code, Tit. 37, Pt. III, § 1907(A). La. Admin. Code, Tit. 37, Pt. III, §

1901(A) explains how the administrative rules provide for and govern the

administration and payment of future medical benefits:

The rules of Chapter 19 provide for and govern the administration and
payment by the fund of future medical care and related benefits for
patients deemed to be in need of future care and related benefits
pursuant to a final judgment issued by a court of competent
jurisdiction or agreed to in a settlement reached between a patient and
the fund.

A future medical care award is not a lump sum award payable immediately

to a plaintiff, but rather will be paid out by the PCF, pursuant to the provisions of

La. R.S. 40:1231.3, as expenses are incurred. Watkins v. Lake Charles Memorial

Hosp., 13-1137 (La. 3/25/14), 144 So.3d 944, 951. Future medical expenses are

not made executory until review and approval by the PCF. Id. A medical provider

or family member rendering medical care or providing related benefits must submit

a claim to the PCF for payment. Id; Bijou v. Alton Ochsner Medical Foundation,

95-3074 (La. 9/5/96), 679 So.2d 893, 898.

Notwithstanding, the trial court issuing the final judgment retains continuing

jurisdiction in cases where future medical care and related benefits are determined

to be needed by the patient. La. R.S. 40:1231.3(E)(1);5 Watkins, 144 So.3d at 951.

If the trial court finds the PCF unreasonably failed to pay for future medical care

5
La. R.S. 1231.3(E)(1) provides: “The district court from which final judgment issues shall have
continuing jurisdiction in cases where medical and related benefits are determined to be needed by the
patient.”

19-CA-141 C/W 19-CA-142 13

within thirty days after submission of a claim for payment of such benefits, the

court must award reasonable attorney fees to the claimant’s attorney. La. R.S.

40:1231.3(E)(2).6

As noted above, the dispute between the parties is whether Ms. Brunelle

must provide a signed statement of the services she provides to Haley each day in

accordance with La. Admin. Code, Tit. 37, Pt. III, §1917(A)(4). Section 1917

provides in its entirety as follows:

A. The fund will provide and/or fund, at the lesser of the billed
amount or the maximum amount allowed under the reimbursement
schedule, inpatient or outpatient nursing or sitter care when such care
is required to provide reasonable medical, surgical, hospitalization,
physical rehabilitation, or custodial services made necessary by the
health care provider’s malpractice, subject to the following
limitations.

1. All nursing or sitter care shall be specifically prescribed or ordered
by a patient’s treating health care provider.

2. All nursing or sitter care shall be rendered by a licensed and/or
qualified registered nurse or licensed practical nurse or by a sitter,
a member of the patient’s family or household, or other person as
specifically approved by the fund.

3. There shall be a presumption that the person rendering nursing or
sitter care is qualified if the treating health care provider issues a
statement that that person is competent and qualified to render the
nursing or sitter care required by the patient.

4. All claims for nursing or sitter care payments, including those
for family members providing such care, must include a signed,
detailed statement by the person rendering nursing or sitter care,
setting forth the date, time, and type of care rendered to and for
the patient.

B. 1. Providers of nursing or sitter care shall be funded, at the lesser of
the billed amount or the maximum amount allowed under the
reimbursement schedule. If the reimbursement schedule contains no
applicable rate for such care, then the care shall be funded at the lesser
of the billed amount or the usual and customary rate charged by
similarly licensed or qualified healthcare providers in a patient’s home
state, city, or town. However, nursing or sitter care provided by
members of the patient’s family or household will be funded at a rate
not to be less than the federal minimum hourly wage rate as may be

6
La. R.S. 1231.3(E)(2) provides: “The court shall award reasonable attorney fees to the claimant’s
attorney if the court finds that the patient’s compensation fund unreasonably fails to pay for medical care
within thirty days after submission of a claim for payment of such benefits.”

19-CA-141 C/W 19-CA-142 14

revised from time to time regardless of the licensure or qualification
of the provider.

2. However, notwithstanding the foregoing, future nursing or sitter
care provided by members of the patient’s family or household will be
funded at a rate not to exceed the equivalent of $6 per hour plus
inflation at the annual consumer price index published by the United
States Bureau of Labor Statistics for each year beginning in
November 2001. However, at no time will the hourly rate paid be
below the federal minimum hourly wage rate as may be revised from
time to time.

C. The fund shall be entitled to periodic inspections or assessments of
the physical environment in which the nursing or sitter care is being
rendered. The fund may seek a judicial ruling to discontinue the
payments for future medical care and related benefits if, upon
inspection and recommendation of a licensed or qualified health care
provider, it is determined that the physical environment in which the
nursing or sitter care being rendered is inadequate or inappropriate
and not in the best interest of the patient.

D. The fund may seek a judicial ruling to discontinue the payments
for future medical care and related benefits if, upon a physical or
mental examination of the patient, pursuant to § 1911, and
recommendation of a licensed or qualified health care provider, it is
determined that the nursing or sitter care being rendered is inadequate
or inappropriate and not in the best interest of the patient.

[Emphasis added.]

Ms. Brunelle argues that, when considered in its entirety, one must conclude

that La. Admin. Code, Tit. 37, Pt. III, §1917 only applies to cases where neither the

custodial care provider nor the amount of reimbursement has been previously

determined by the trial court. She claims that the detailed statement of the care is

only relevant to the determination of the amount the fund will pay for nursing or

sitter care. Therefore, she contends this information is unnecessary when the trial

court sets the rate.

However, our review of La. Admin. Code, Tit. 37, Pt. III, §1917 indicates

that Ms. Brunelle’s reasoning is faulty. Section 1917(B)(2) quoted above

establishes the permitted rates for nursing or sitter care provided by a family

member when the PCF determines the rate of pay. According to the parties that

19-CA-141 C/W 19-CA-142 15

amount is currently $7.43. Therefore, contrary to Ms. Brunelle’s argument, the

PCF’s discretion regarding the rate awarded to a family member is limited and the

statement of the care and services was obviously intended to assist the PCF with

more than setting the rate of reimbursement. One could foresee, however, that a

detailed statement of the custodial care provided to a patient would be relevant to

assist the PCF in determining whether it should request an inspection or

assessment of the patient’s environment in accordance with Section 1917(C)

quoted above, or in determining whether the nursing or sitter care being provided

to the patient is inadequate, inappropriate or not in the best interest of the patient in

accordance with both Sections 1917(C) and (D).

In further support of her argument that she is not required to provide a

statement of services, Ms. Brunelle cites to the Third Circuit’s decision in Watkins

v. Barry, 06-858 (La. App. 3 Cir. 12/6/06), 946 So.2d 262, writ denied, 07-373

(La. 4/27/07), 955 So.2d 686, which affirmed a trial court’s decision to require the

PCF to pay prospective custodial care payments. The son of the plaintiff, Tina

Watkins, suffered a stroke in utero causing serious and permanent debilitating

injuries. Following a bench trial, the trial court awarded future medical and

custodial care expenses, which were itemized and quantified in accordance with

La. R.S. 40:1299.43(A)(2),7 at over $6,000,000.00. This amount included

custodial care for Ms. Watkins’ son for 12 hours a day until his eighteenth birthday

and twenty-four hours a day thereafter for the remainder of his life.8

7
La. R.S. 40:1299.43(A)(2) was redesignated in 2015 as La. R.S. 40:1231.3(A)(2), which provided then
and now as follows: “In actions upon malpractice claims tried by the court, the court’s finding shall
include a recitation that the patient is or is not in need of future medical care and related benefits that will
be incurred after the date of the court’s finding and the amount thereof.”
8
In an earlier decision affirming this award, Watkins v. Lake Charles Mem’l Hosp., 04-355 (La. App. 3
Cir.12/15/04), 896 So.2d 130, writ denied, 05-145 (La. 4/9/05), 898 So.2d 1270, the opinion noted that
the trial court awarded a rate of $7.50 per hour for the custodial care provided until Ms. Watkins’ son was
18 and $10 per hour for live-in support commencing at age 18.

19-CA-141 C/W 19-CA-142 16

After the judgment became final, Ms. Watkins made a demand for payment

and the PCF paid general damages and accrued medical and custodial care

expenses incurred through the date of the trial. Ms. Watkins then demanded

payments of expenses incurred since trial and the PCF notified Ms. Watkins that

she would have to provide a signed W-9 taxpayer identification form and notes

reflecting the hours worked and duties performed by the custodial care provider.

Ms. Watkins provided the W-9 form and an affidavit explaining her son’s

disabilities had not diminished since trial. However, she argued that a record of

the hours and duties performed by the custodial care provider was not required.

After the PCF declined to pay the custodial care benefits, Ms. Watkins filed

a rule alleging the PCF arbitrarily refused to pay. The trial court ruled in favor of

Ms. Watkins and ordered the PCF to make quarterly advance payments of

custodial care expenses to a special needs trust at the hourly rate specified in the

judgment. The payment was conditioned upon the PCF’s receipt of a certification

that the child’s condition remained unchanged in the thirty days prior to the

quarterly payment.

The PCF appealed arguing that the trial court erred in requiring the PCF to

make prospective payments and erred by not requiring the plaintiff to submit any

evidence that the services were rendered. In affirming the trial court’s judgment,

the appellate court stated that “[b]y requiring the plaintiff to submit verification of

custodial care expenses, the PCF ignores the mandate of the 2003 judgment” and

further noted that the “judgment established both the need and amount of future

expenses.” Id. at 264. The appellate court recognized that the judgment was not

made executory until a claim was submitted to the PCF, but reasoned that the trial

court had jurisdiction to fashion an appropriate remedy and in administering the

claim, the PCF did not have the authority to alter the terms of the judgment. Id.

19-CA-141 C/W 19-CA-142 17

Ms. Brunelle argues that the Watkins v. Barry court concluded that because

the judgment established the need and amount of the future expenses, the PCF was

attempting to improperly alter the terms of the judgment by requiring evidence of

the hours worked and duties performed by the custodial care provider before

rendering payment. Ms. Brunelle asks this Court to follow Watkins v. Barry, and

also determine that because the April 4, 2016 judgment established the need and

amount of custodial care benefits, the PCF could not require her to provide

information regarding the services she provided to Haley.

We do not find the appellate court’s reasoning in Watkins v. Barry to be

persuasive with respect to the present matter. First, we do not agree that the

determinations regarding the need and amount of custodial care services in the

April 4, 2016 judgment precluded the PCF from requiring a statement of services

in accordance with its administrative rules prior to payment. When future medical

care and related benefits are awarded by a trial court on a malpractice claim, La.

R.S. 40:1231.3(A)(2) requires that “the court’s finding shall include a recitation

that the patient is or is not in need of future medical care and related benefits . . .”

and “the amount thereof.” [Emphasis added.] Therefore, every judgment awarding

future medical benefits must address these two issues. More importantly, the

Watkins v. Barry court did not mention or analyze whether the provisions of La.

Admin. Code, Tit. 37, Pt. III, §1917 applied to the judgment. Accordingly, for

these reasons and those discussed above in our analysis of the applicable law, we

decline to apply the reasoning set forth in Watkins v. Barry, supra, to the present

matter.

Ms. Brunelle also argues that in a subsequent opinion rendered by the

Louisiana Supreme Court over seven years later in a related decision, Watkins v.

Lake Charles Memorial, 13-1137 (La. 3/25/14), 144 So.3d 944, the Supreme Court

affirmed the award compelling the PCF to pay prospective benefits. Ms. Brunelle

19-CA-141 C/W 19-CA-142 18

argues that if the Supreme Court affirmed an award of prospective payments, then

it is unreasonable to order her to submit a statement of services in order to obtain

payment.

In Watkins v. Lake Charles, supra, the PCF ceased the prospective

payments for 24-hour custodial care to Ms. Watkins after a PCF employee noticed

on social media that Ms. Watkins’ son was married and no longer living with her.

Ms. Watkins filed a motion to compel the PCF to continue payments. The trial

court reduced the custodial care from 24 hours to 6 hours, but awarded Ms.

Watkins the 24-hour care that accrued prior to the hearing, as well as attorney’s

fees and costs. The appellate court affirmed and the Supreme Court granted a writ

of certiorari. Id.

We first note that the Supreme Court in Watkins v. Lake Charles, did not

actually affirm the judgment awarding the prospective payments entered by the

trial court in 2006. Id. at 962. Rather, the primary issue was whether the PCF

could discontinue the prospective custodial care payments to Ms. Watkins

according to its jurisdiction to consider claims under La. R.S. 40:1299.43(C)

(redesignated as La. R.S. 40:1231.3(C)), or whether it was required to continue to

comply with the judgment until it obtained a ruling from the trial court allowing it

to cease the prospective payments. The Supreme Court affirmed the rulings of the

trial and appellate courts, finding that once the trial court exercised its continuing

jurisdiction under La. R.S. 40:1299.43(E) (redesignated as La. R.S.

40:1231.3(E)(1)), the PCF was obliged to continue to comply with the trial court’s

judgment until it was modified or recalled by the trial court. Id. at 956. The

Louisiana Supreme Court did not address the applicability of La. Admin. Code,

Tit. 37, Pt. III, § 1917, as this was not an issue before the court.

We agree that a trial court has authority to fashion appropriate remedies to

ensure payment of necessary future medical care and related benefits, and that the

19-CA-141 C/W 19-CA-142 19

PCF must follow such a trial court judgment until it obtains a ruling for the trial

court otherwise. In the instant matter, the parties agreed to 16 hours of coverage

per day for custodial care and the trial court awarded a rate of $15.00 per hour and

a reduced rate of $7.43 when Haley is in school. However, the April 4, 2016

judgment did not include any specific provisions or guidelines regarding the

administration and payment of the custodial care claims. Therefore, considering

the applicable laws and rules discussed above, we find that the PCF correctly

applied La. Admin. Code, Tit. 37, Pt. III, § 1917(A)(4), and required Ms. Brunelle

to properly document her claims for custodial care benefits in accordance with this

provision prior to payment.

We do not find it unreasonable for Ms. Brunelle to provide a description of

the services on her time sheets in order to certify to the PCF that she is providing

those services contemplated by the trial court. The April 4, 2016 judgment

specifically indicated that the trial court awarded an amount above the set

administrative rate requested by the PCF due to numerous services Ms. Brunelle

provides to her daughter. If Ms. Brunelle’s time sheets indicate she is providing a

reduced or different level of services, this information could be relevant to the PCF

to determine whether to return to the trial court to seek a reduced rate or to seek

discontinuation of payments.

Accordingly, we do not find the trial court erred by denying plaintiffs’ rule

for contempt and by declining their request for attorney’s fees and interest.

Did Trial Court Exceed Its Authority by Specifying the Information
Ms. Brunelle Must Provide Regarding the Custodial Care Services?

In her next assignment of error, Ms. Brunelle argues the trial court exceeded

its authority by adding provisions requiring her compliance with La. Admin. Code,

Tit. 37, Pt. III, § 1917, when this issue was not procedurally before the trial court.

She contends the PCF did not file any rules to modify the April 4, 2016 judgment

19-CA-141 C/W 19-CA-142 20

and that the only matter pending before the trial court at the September 10, 2018

hearing was the rule for contempt. She argues that if the PCF wished to require

time sheets with details regarding the services provided, then it was obligated to

file its own rule to modify the April 4, 2016 judgment.

We disagree that the trial court exceeded its authority because plaintiffs

invited the trial court to provide guidance regarding the information Ms. Brunelle

must provide to the PCF regarding custodial care. As noted above, in the August

24, 2018 memorandum in support of the rule for contempt, plaintiffs requested and

invited clarification from the trial court regarding the information Ms. Brunelle

was required to provide to the PCF in order to receive custodial care payments.

Furthermore, plaintiffs’ counsel did not object to the trial court providing

additional guidance during the September 10, 2018 hearing on the rule for

contempt. Counsel noted that the trial court “has given us certain guidance today

which is important and easy to follow,” and noted that she understood the trial

court “wanting us to add another paragraph” to the judgment regarding this

guidance.

Obviously, Ms. Brunelle does not agree with the guidance provided by the

trial court. However, after reviewing the pleadings submitted by the parties and

the transcript from the hearing on the rule for contempt, we do not find that the

trial court exceeded its authority by adding the provisions regarding the statements

Ms. Brunelle must provide to the PCF to receive custodial care payments.

Did the October 16, 2018 Judgment Conform With the Transcript?

Ms. Brunelle also argues that the trial court exceeded its authority by issuing

a judgment that does not conform to the transcript. Ms. Brunelle does not point to

any specific provisions of the April 4, 2016 judgment that are not in compliance

with the transcript. However, she does note that she submitted a proposed

19-CA-141 C/W 19-CA-142 21

judgment to the trial court, which she contends correctly set forth the trial court’s

rulings evidenced by the transcript.

As explained above, Ms. Brunelle submitted an alternative judgment that

provided for the payment of the accrued custodial care benefits in two installments

and further provided that the requirement to provide the statement of services

would only apply prospectively from the date of the September 10, 2018 hearing.

However, the trial court did not order the past custodial care benefits to be paid in

two installments. Rather, the trial court instructed the PCF’s counsel to work with

plaintiffs’ counsel to resolve this issue. In addition, as quoted above, the trial court

stated on two different occasions during the hearing that Ms. Brunelle would need

to update the invoices previously submitted to the PCF for payment with a

statement of the services provided.

Accordingly, we find that Ms. Brunelle assignment of error on this issue is

without merit.

DECREE

Based on the foregoing, we affirm the trial court’s October 16, 2018

judgment and deny the PCF’s Motion to Dismiss Appeal.

AFFIRMED; MOTION TO
DISMISS APPEAL DENIED

19-CA-141 C/W 19-CA-142 22

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-141
C/W 19-CA-142
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
CONRAD MEYER (APPELLEE) ADRIANNE L. BAUMGARTNER MEGHAN E. RUCKMAN (APPELLEE)
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MAILED
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