Mark Milligan and Antionette Levy, individually and as the Surviving Heirs of the Sherilyn Milligan Wright v. Patient's Compensation Fund Oversight Board, Sage Rehabilitation Hospital c/o Care Plan Oversight, LLC and Our Lady of the Lake Hospital

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
LO NO. 2023 CA 1014
ANN
T ¢ he! MARK MILLIGAN AND ANTIONETTE LEVY,
% INDIVIDUALLY AND AS THE SURVIVING HEIRS
AN OF THE DECEASED SHERILYN MILLIGAN WRIGHT
VERSUS
PATIENT’S COMPENSATION FUND OVERSIGHT BOARD,
SAGE REHABILITATION HOSPITAL C/O CARE PLAN

OVERSIGHT, LLC AND OUR LADY OF THE LAKE HOSPITAL

MAY 3 1 2024

Judgment Rendered:

* OK Ok *

Appealed from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
No. C724973

The Honorable Wilson E. Fields, Judge Presiding

* Ok Ok

Daryl A. Gray Attorneys for Plaintiffs/Appellants,
Eric A. Wright Mark Milligan and Antoinette Levy,
Corrie R. Gallien, III Individually and as the Surviving
New Orleans, Louisiana Heirs of Sherilyn Milligan Wright

David A. Woolridge, Jr. Attorney for Defendant/Appellee,
Baton Rouge, Louisiana Patient Compensation Fund
Oversight Board

*OK OK KF

BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.

WOLFE, J.

This is an appeal of a judgment that dismissed plaintiffs’ suit for injunctive
relief against the Louisiana Patient’s Compensation Fund Oversight Board (PCF) in
connection with a medical review panel proceeding. We affirm.

FACTS

On or about April 18, 2022, plaintiffs, Mark Milligan and Antoinette Levy,
filed a request with the State of Louisiana’s Division of Administration (DOA),
seeking a medical review panel to review the care provided to their mother, Sherilyn
Milligan Wright, by Our Lady of the Lake Hospital and Care Plan Oversight, LLC,
doing business as Sage Rehabilitation Hospital. The DOA forwarded the request to
the PCF, and the request was assigned PCF file number 2022-00308.

By letter dated April 29, 2022 (hereafter “the confirmation notice”), the PCF
acknowledged receipt of the request, confirmed the qualified status of both of the
healthcare providers referenced in the request, and notified plaintiffs that a filing fee
of $100.00 per qualified provider was required to be paid within forty-five days of
the letter’s receipt. The confirmation notice advised that the fees could be waived
only upon receipt of an affidavit from a physician or a district court’s in forma
pauperis ruling as provided by statute. The confirmation notice warned in bolded
and underlined type that failure to comply would render the medical review panel
request invalid and without effect as to the referenced healthcare providers.

The confirmation notice was sent by certified mail, with return receipt
requested, to plaintiffs’ counsel at the address listed on the panel request. On May
17, 2022, the Board received the signed certified mail receipt (the green card) for the
confirmation notice. The delivery date was blank; therefore, as was customary, the
PCF referred to the tracking information from the United States Post Office (USPS)
to confirm that the certified letter addressed to plaintiffs’ counsel was delivered to
the front desk, reception, or mail room on May 6, 2022, at 12:30 p.m.

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The PCF did not receive the filing fees within forty-five days of May 6, 2022;
therefore, by letter dated June 27, 2022, the PCF notified plaintiffs that the request
for medical review panel assigned PCF file number 2022-00308 was considered
invalid and without effect. The letter was sent by certified mail to plaintiffs’ counsel
at the same address as the April 29, 2022 confirmation notice, and a copy was sent
to the relevant healthcare providers, notifying them of the declaration.

On July 8, 2022, plaintiffs’ counsel sent an email to the PCF that
acknowledged receipt of the June 27, 2022 letter and asked for further information
about the April 29, 2022 confirmation notice, as it was not contained in their file.
Plaintiffs’ counsel then requested a copy of the green card to see who had signed it.
The PCF sent plaintiffs’ counsel the requested copy of the green card, noting in its
correspondence that the green card appeared to have been signed by the same person
who had signed the green card for the June 27, 2022 letter. Neither of the signatures
were legible and no printed name appeared on either green card.

On October 24, 2022, plaintiffs instituted this suit for injunctive relief to
prohibit the PCF from enforcing its decision that deemed their request for medical
review panel invalid and without effect.' Plaintiffs claimed that their counsel never
received the PCF’s April 29, 2022 confirmation notice that advised of the required
filing fees and the deadline for remittance, averring that mail intended for plaintiffs’
counsel’s office was often delivered to its previous suite (located in the same
building) and signed for by the tenant. Plaintiffs asserted that the certified mail
receipt for the April 27, 2022 confirmation notice lacked a recipient address and that

the recipient’s signature was illegible. Thus, plaintiffs contended that the PCF had

' In addition to the PCF, plaintiffs named the two healthcare providers referenced in the medical

review panel request as defendants. The trial court sustained exceptions of no cause of action and
dismissed plaintiffs’ claims against the healthcare providers by judgment signed on February 9,
2023. Plaintiffs argue on appeal that this court should find that the healthcare providers were
properly named as defendants in this suit. However, since that judgment is not before us in this
appeal, we do not address plaintiffs’ argument.

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failed to carry out its statutorily mandated duty to confirm to them that their filing
had been officially received. Plaintiffs concluded that they were therefore entitled
to the injunctive relief sought. In their supporting memorandum, plaintiffs argued
that they would suffer irreparable injury without injunctive relief because they would
be barred from seeking review of the healthcare providers’ actions with respect to
their mother’s death.

In opposition to plaintiffs’ suit, the PCF argued that it complied with the
ministerial duties imposed by the MMA and that it had no control over a counsel’s
office procedures regarding retrieving certified mail from a central mailroom. The
PCF maintained that it was required to treat plaintiffs’ request for a medical review
panel as invalid and without effect since plaintiffs failed to submit their filing fees.

After an evidentiary hearing, the trial court found that the PCF complied with
its statutory duties and that plaintiffs failed to submit the filing fees within the
required time period. The trial court then rendered judgment denying and dismissing
plaintiffs’ petition for injunctive relief, and adopting the PCF’s pre-hearing
memorandum as its reasons for judgment.

Plaintiffs now appeal, arguing that they are entitled to injunctive relief because
the PCF failed to adequately prove that their counsel received notice of the amount
of the filing fees and the deadline for remittance.

DISCUSSION

A writ of injunction is a harsh, drastic, and extraordinary remedy that should
issue only in those instances where the moving party is threatened with irreparable
loss or injury and is without an adequate remedy at law. See La. Code Civ. P. art.
3601; Animal Legal Defense Fund v. State, Dept. of Wildlife and Fisheries,
2012-0971 (La. App. Ist Cir. 4/25/13), 140 So.3d 8, 18, writ denied, 2013-1565 (La.
10/4/13), 122 So.3d 1025. In this context, irreparable injury means a loss that cannot

be adequately compensated in money damages or measured by a pecuniary standard.

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A showing of irreparable injury is not necessary when the act sought to be enjoined
is unlawful. Animal Legal Defense Fund, 140 So.3d at 18.

As a general rule, an injunction will issue only its prohibitory form; however,
if the enjoyment of a real right is obstructed, a plaintiff may be entitled to a
mandatory injunction that commands a defendant to remove the obstruction or undo
something that has been illegally done. See Concerned Citizens for Proper
Planning, LLC v. Parish of Tangipahoa, 2004-0270 (La. App. Ist Cir. 3/24/05),
906 So.2d 660, 664. Here, plaintiffs framed their request for relief in terms of an
injunction to prohibit the PCF from enforcing its decision that deemed their request
for a medical review panel to be invalid and without effect. In substance, however,
plaintiffs requested a mandatory injunction ordering the PCF to remove its
declaration and reinstate their request for review. See Garner v. Redwood
Investment Co., 2022-1049 (La. App. Ist Cir. 7/31/23), 371 So.3d 528, 532 (stating
that a pleading’s substance determines the nature of the proceeding); Green v.
Patient Compensation Fund Oversight Board, 2021-1310 (La. App. Ist Cir.
7/5/22), 344 So.3d 161, 167 (recognizing that a court may order the PCF to remove
a declaration of invalidity or reinstate a request for medical review panel in response
to a pleading requesting a declaratory judgment, mandatory injunction, or rule to
show cause). A mandatory injunction can only be issued in permanent form after a
full trial on the merits where the plaintiffs bear the burden of proving they are entitled
to the injunction. Deshotels v. White, 2016-0889 (La. App. Ist Cir. 8/16/17), 226
So.3d 1211, 1218, writ denied, 2017-1565 (La. 12/5/17), 231 So.3d 628. The
issuance of a permanent injunction is subject to the manifest error standard of
review. Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board
of Nursing, 2008-0813 (La. App. Ist Cir. 12/23/08), 4 So.3d 854, 864, writs denied,

2009-0144 and 2009-0188 (La. 4/13/09), 5 So.3d 163.

The MMA requires that all malpractice claims against qualified healthcare
providers be reviewed by a medical review panel prior to suit. See La. RS.
40:1231.8(A)(1)(a) and (B)(1)(a); Kirt v. Metzinger, 2019-1162 (La. 4/3/20), 341
So0.3d 1211, 1215. To initiate review, a claimant must file a written request for
review with the DOA. See La. R.S. 40:1231.8(A)(1)(b); Kirt, 341 So.3d at 1215.
The DOA is required to file stamp the request and forward it to the PCF within five
days. See La. R.S. 40:1231.8(A)(2). Within fifteen days of receiving the claim, the
PCF must confirm to the claimant by certified mail, with return receipt requested,
that the filing has been officially received and inform the claimant whether the
named healthcare providers have qualified status, the amount of the filing fee and its
due date, and that failure to timely pay the fee or provide a valid waiver will render
the request for review invalid and without effect. See La. R.S. 40:1231.8(A)(3).

The claimant’s receipt of the PCF’s confirmation notice triggers the forty-
five-day delay for the claimant to pay the required filing fees.? See La. R.S.
40:1231.8(A)(1)(c). Thereafter, “[t]he claimant either timely pays the filing fee and
preserves the claim against [the healthcare provider referenced in the confirmation
notice]; or the claimant fails to timely pay the filing fee, rendering the request for
review of the malpractice claim against that [provider] invalid and without effect.”
Kirt, 341 So.3d at 1218 (italics omitted). The PCF is required to notify the claimant
and all named healthcare providers by certified mail whether the filing fee was or
was not timely received. See La. R.S. 40:1231.8(A)(4).

The PCF’s authority to process a request for medical review panel is limited

to the mandatory and ministerial duties imposed on it by the MMA to facilitate the

2 Prior to its amendment by 2016 La. Acts, No. 275, the forty-five-day period began on the date

the PCF mailed the confirmation notice. Notably, the amendment only changed the trigger-date
for the initial request for review to the date the claimant receives the PCF’s confirmation notice.
If the claimant subsequently requests to add another healthcare provider not named in the initial
request for review, the forty-five-day period for the claimant to pay the additional filing fee begins
on the date the PCF mails its confirmation notice. See La. R.S. 40:1231.8(A)(1)(g); Kirt, 341
So.3d at 1216 n.7.

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medical review process. See Kirt, 341 So.3d at 1218; Franks v. Louisiana
Patient’s Compensation Fund Oversight Board, 2016-0765 (La. App. Ist Cir.
5/3/17), 220 So.3d 862, 867, writs denied, 2017-0868 and 2017-0877 (La. 9/29/17),
227 So.3d 294. The PCF’s duties are not adjudicative in nature. Brown v. Patient
Compensation Fund Oversight Board, 2017-0318 (La. App. Ist Cir. 1/5/18), 241
So.3d 1167, 1172. Rather, the PCF stands in the same position as clerks of court
who are charged with the duty to receive and process judicial filings. Kirt, 341
So.3d at 1218. The PCF cannot improvise measures not authorized by the MMA.
Franks, 220 So.3d at 869.

Here, there is no dispute that the PCF sent the required confirmation notice by
certified mail, with return receipt requested, to plaintiffs’ counsel at the appropriate
address. The PCF received back the signed green card and calculated the due date
for the filing fees. Plaintiffs contend, however, that “the [MMA] requires the PCF
to examine the green card returned and determine if it sufficiently proves that
[plaintiffs] or their counsel received the filing fee deadline letter.” They argue that
the PCF was required to take additional steps because the green card’s signature was
illegible and the mailing address was not reflected thereon.

The record establishes that the PCF complied with its statutory duties by
sending the required confirmation notice by certified mail, with return receipt
requested, to plaintiffs’ counsel at the address counsel provided. Upon receipt of the
signed green card for the confirmation notice it mailed to plaintiffs’ counsel’s
address, the PCF used tracking information provided by USPS to determine the date
of receipt and calculate the forty-five-day period for payment of the filing fees. The
MMA does not require the PCF to authenticate the signature on the certified mail
receipt or otherwise verify that plaintiffs and their counsel actually received the
certified mail signed for in plaintiffs’ counsel’s office. Mindful that the MMA must

be strictly construed, we will not read into it language that is not contained therein.

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See Sebble on Behalf of Estate of Brown v. St. Luke’s #2, LLC, 2023-00483 (La.
10/20/23), 379 So.3d 615, 621 (“It is well settled that the [MMA], a statute in
derogation of victims, must be ‘strictly construed.””).

At the evidentiary hearing before the trial court, plaintiffs argued that “this
whole case is about a mailing issue.” They introduced into evidence the deposition
testimony of Maria Henry and Kandall Smith, employees who handled the mail in
plaintiffs’ counsel’s office. Their testimony established that their office is located
in a large office building with a central mail room run by USPS and that someone
from the office is required to go to the mailroom to retrieve the mail. Henry indicated
that in late 2021 or early 2022, plaintiffs’ counsel moved their office from one suite
to another in the same building, and that their mail still sometimes went to the law
firm that moved into their former suite. Henry stated that there was no set
arrangement between the two law firms to take each other the wrongly delivered
mail, although she usually brought the other firm’s mail to them if she received it.
Henry explained that when it first became clear that some mail was going to the
former suite, she contacted the other law firm to see if they had any of plaintiffs’
counsel’s mail and was told that some had been received and returned to the central
mailroom, and that they were no longer delivering it to plaintiffs’ counsel.

Henry and Smith explained that when certified mail was delivered to their
building, the postal worker separated the green cards from the letters in front of the
office representative and asked the office representative to sign and print their name
on the receipts in the mailroom; however, the system did not involve the office
representative matching each green card they signed to the particular letter they
received. Both Henry and Smith testified that their office’s practice was that green
cards should be signed with the name also printed legibly. During their depositions,
they examined the signature on the signature line of the green card for the

confirmation letter and denied that it was theirs. Henry indicated that a former

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employee sometimes collected mail during the time at issue; however, Henry denied
ever seeing the signature reflected on the green card for the confirmation letter or
recognizing it as anyone else’s from their office. Smith likewise denied recognizing
the signature. However, Henry acknowledged a recent instance in which it was
ultimately determined that a settlement check for plaintiffs’ counsel’s client was
mistakenly received and signed for by the law firm occupying that former suite, after
that law firm denied any involvement.

After reviewing the evidence presented, the trial court found that plaintiffs
failed to prove their entitlement to injunctive relief. The trial court acknowledged
that the green card at issue did not reflect a printed name or delivery date, but found
that it was allowed by USPS procedure and, more importantly, that USPS tracking
provided the necessary delivery information. Thus, the trial court found that the PCF
complied with its statutory duties and adopted the PCF’s argument that the forty-
five-day delay for payment of the filing fee began on May 6, 2022.

After thorough review, we agree with the trial court’s ruling. The PCF
complied with its ministerial statutory duties under the MMA, which requires notice
sent by certified mail with return receipt requested. The USPS documentation
sufficiently established claimant’s receipt of the PCF’s confirmation notice.> The
required filing fee was due forty-five days later. There is no dispute that the filing
fee was not paid. Thus, under the facts presented, plaintiffs failed to prove their
entitlement to injunctive relief.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed to Mark Milligan and Antoinette Levy.

AFFIRMED.

3 Consequently, La. R.S. 40:1231.8(A)(5), which sets forth the requirements of the PCF when it

is unable to determine whether notification by certified mail was received, is inapplicable.

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