Bonnie Bennett v. Pathway Management of Louisiana, L.L.C. and Heritage Manor West, L.L.C. d/b/a "Heritage Manor West" (consolidated with) Bonnie Bennett v. Heritage Manor West, L.L.C. d/b/a Heritage Manor West

Judgment rendered July 15, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,943-CA
No. 56,944-CA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

No. 56,943-CA No. 56,944-CA

BONNIE BENNETT BONNIE BENNETT
Plaintiff-Appellee Plaintiff-Appellee

versus versus

PATHWAY MANAGEMENT HERITAGE MANOR WEST,
OF LOUISIANA, L.L.C. AND L.L.C. D/B/A HERITAGE
HERITAGE MANOR WEST, MANOR WEST
L.L.C. D/B/A “HERITAGE Defendants-Appellants
MANOR WEST”
Defendants-Appellants

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court Nos. 626,044 and 637,280

Honorable Brady D. O’Callaghan, Judge

*****

BAKER, DONELSON, BEARMAN, Counsel for Defendants-
CALDWELL & BERKOWITZ, PC Appellants, Pathway
By: Nicholas J. Wehlen Management of
Louisiana, LLC;
Heritage Manor West,
LLC; and Heritage
Manor West

LUNN IRION LAW FIRM, LLC
By: Ronald E. Raney

BRADLEY, MURCHISON, KELLY
and SHEA, LLC
By: Patrick W. Woolbert

McNEW, KING, LANDRY Counsel for
& HAMMETT, LLP Intervenor-Appellant,
By: Brady D. King, II Louisiana Patient’s
Compensation Fund
Oversight Board

GARCIA & ARTIGLIERE Counsel for Plaintiff-
By: Stephen M. Garcia Appellee, Bonnie
Jordan M. Jeansonne Bennett
Matthew M. Coman

FLANAGAN PARTNERS LLP
By: Thomas M. Flanagan
Anders F. Holmgren
Alixe L. Duplechain

*****

Before PITMAN, THOMPSON, and ELLENDER, JJ.

PITMAN, C. J.

Defendants-Appellants Pathway Management of Louisiana, LLC

(“Pathway LLC”) and Heritage Manor West, LLC (“Heritage”) appeal the

judgment of the trial court rendered pursuant to a judgment notwithstanding

the verdict (“JNOV”) in favor of Plaintiff-Appellee Bonnie Bennett for

negligence and fraud in the care of her father at a nursing home. The

Louisiana Patient’s Compensation Fund (“PCF”) intervened in the appeal.

For the following reasons, the judgment is reversed in part, affirmed in part

and modified.

FACTS

At first blush, this appears to be a typical medical malpractice case

brought under the Louisiana Medical Malpractice Act (“LMMA”), La.

R.S. 40:1231.1, et seq.; but for various reasons, it is not. Bennett sued

Pathway LLC and Heritage for negligence and fraud in the care of her

father, Raymond Davidson, who was a resident at Heritage Manor for four

years. He entered the facility in 2015 and lived there until March 3, 2020,

when he was transferred to another facility for care of pressure wounds and

decubitus ulcers on his buttocks, groin and sacral areas. He died May 20,

2020.

Heritage provided proof that it was a qualified health care provider

(“QHCP”), and a medical review panel was invoked on May 13, 2020.

Bennett filed suit September 18, 2020, in the First Judicial District

Court in Docket No. 626,044 against Pathway LLC, as the administrative

manager of Heritage. The petition contains a footnote which states as

follows:

On May 13, 2020, Raymond Davidson, as “Claimant,” requested
the formation of a Medical Review Panel in accordance with La.
R.S. 40:1231.8 as to Heritage Manor West, LLC d/b/a “Heritage
Manor West,” the “Health Care Provider” FACILITY (La.
R.S. 40:1231.1(A)(l0)). The defendants specifically named
herein and the claims alleged herein are not encompassed by La.
R.S. 40:1231.1, et seq. On May 20, 2020, Claimant died. On
July 20, 2020, Bonnie Bennett, as the daughter and surviving
child of Raymond Davidson, requested that the Medical Review
Panel substitute her as Claimant against Heritage Manor West,
LLC d/b/a “Heritage Manor West.”

Bennett’s petition alleged that Pathway LLC, as administrative

manager of Heritage, was responsible for the facility’s failure to properly

care for Davidson. It also alleged that in late January 2020, Heritage failed

to provide necessary custodial care for Davidson that included failure to

provide necessary nutrition and hydration resulting in his hospitalization on

multiple occasions. In March 2020, Davidson was transferred from Heritage

to another facility where he was again diagnosed with malnutrition,

dehydration and dangerously low hemoglobin that required a blood

transfusion. After he was transferred, Davidson died; his death certificate

lists “sacral wounds with sepsis” as his immediate cause of death.

Bennett alleged that these injuries were caused solely by the

negligence and/or fault of Pathway LLC and/or through Heritage, as alleged

under La. C.C. art. 2315, et seq. She further alleged that their actions

constituted administrative negligence, and it was through their fault that

Davidson suffered a lost chance of survival, wrongful death and severe and

painful injuries to his mind and body, as well as unnecessary medical

expenses. She stated that administrators at Heritage failed to maintain

adequate staffing, which resulted in failure to provide the care necessary to

support Davidson’s medical needs.

2

After the medical review panel was completed, Bennett filed suit

against Heritage in Docket No. 637,280, and then amended her suit against

Pathway LLC in Docket No. 626,044 in June 2021, adding Heritage as a

defendant. By consent of the parties, the suits were consolidated. In the

amended petition, Bennett alleged that after her father’s death, she was

substituted as the claimant before the medical review panel. In a footnote to

the petition, she states:

As retained in the proposed First Amending Petition for
Wrongful Death and Survivor’s Damages and Injunctive Relief,
the claims alleged therein against the Facility and existing
Defendants constitute separate torts apart from a claim under
the Medical Malpractice Act. (Citation omitted.)

She inserted a claim related to violations of the Nursing Home
Residents Bill of Rights (“NHRBR”) provided under La.
R.S. 40:2010.6, et seq. including the award of reasonable
attorney’s fees and costs of the action.

In a second amended petition, Bennett alleged medical negligence and

stated that those allegations apply only to Heritage, which breached its

standard of care and treatment during Davidson’s residency at the facility.

As to Pathway LLC, she alleged it had the administrative authority and duty

to provide appropriate care and services to him and that it failed miserably.

The petition stated that the claim for administrative negligence or failure to

provide adequate staffing was a claim of general negligence not subject to

the LMMA.

The second amended petition further included a third section entitled

“Intentional Fraud,” which was applicable only to Heritage. It cited the

NHRBR, which provides that all nursing homes shall adopt and make a

public statement of the rights and responsibilities of the residents residing

therein and shall treat such residents in accordance with the provisions of the

3

statement. Bennett alleged Heritage committed fraud when it

misrepresented or suppressed the truth as to its ability to adequately care for

her father and did so with the intention either to obtain an unjust advantage

for itself or to cause a loss or inconvenience to him.

A jury trial was held August 20-23, 2024. On the last day of the trial,

outside the presence of the jury, Defendants raised the issue of the

qualification of Pathway LLC as a QHCP so that it would be entitled to the

protections of the LMMA. Pathway LLC’s attorney stated that it did not

have the certificate of enrollment issued to it by the PCF, and the attorney

admitted that the certificate was not produced in discovery. Pathway LLC

noted that it had included its certificate of enrollment as an exhibit in a joint

pretrial statement and that Bennett had not objected. Pathway LLC’s

attorney argued that jurisprudence allowed testimony and other documentary

evidence to support a finding that the certificate is merely prima facie

evidence of enrollment.

The trial court agreed to hear Pathway LLC’s evidence but declined to

decide whether it was a QHCP until after the jury’s verdict was rendered.

The testimony of Bobby L. Beebe, Jr., president of Pathway Management,

Inc.1 (“Pathway Inc.”) was taken and he stated that Pathway Inc. managed

nursing homes in the states of Louisiana and Mississippi through its

subsidiaries, including Pathway LLC. Beebe testified that Pathway LLC has

professional liability insurance and is a member of the PCF. He stated that

the LLC had made an application, paid the fee and filed the financial

responsibility form. He asserted that the LLC had been enrolled with the

1
Pathway Management, Inc. is not the defendant in this case. Pathway LLC is
the defendant.
4

PCF during the period of September 2019 until September 2020. Beebe

identified documents reflecting the payments made proving enrollment in

the PCF, and these were proffered. Pathway LLC’s certificate was included

with the proffer exhibits.

The jury found in favor of Bennett on the survival, wrongful death

and fraud claims. The judgment memorializing the jury’s verdict was signed

on October 28, 2024, and stated that the total award of damages from

Pathway LLC and Heritage was $3,897,689.63. They were assessed with

damages of $2,897,689.63 for Davidson’s survival action and wrongful

death with legal interest against Heritage from the date the medical review

panel complaint was filed. Pathway LLC was assessed with these damages

with legal interest from the date of judicial demand. Heritage was assessed

with $1 million for the fraud committed upon Davidson, which allegedly

convinced him to become a resident of its facility. An award of attorney

fees was left to a later date.

Bennett filed a motion for the award of attorney fees and costs.

Defendants filed a JNOV on grounds of validity of the damages awarded by

the jury, whether a previous decision regarding Pathway LLC’s status as a

QHCP was correct and whether the fraud claim was duplicative when it was

based on the same factual circumstances as the claim for negligence.

Defendants also filed a motion for reconsideration and/or for a new trial

regarding a ruling by the trial court in October 2024, which concerned

whether the damage cap set forth in the LMMA applied to the claims

brought against Pathway LLC.

In a judgment rendered on April 30, 2025, the trial court ruled on

these post-trial motions and the JNOV and amended the original judgment in
5

several significant respects. The trial court ordered Heritage to pay attorney

fees of $265,636.25 for the fraud claim. Heritage and Pathway LLC were

ordered to pay $51,673.46 ($25,836.73 each) in costs. The trial court found

the fraud damages to be “largely co-extensive with the medical malpractice

damages, and not subject to the LMMA’s statutory cap.” Thus, it reduced

the jury’s award of $1 million for the fraud claim “only to the extent that the

other damages are subsumed by that award” and amended the judgment for

fraud to $687,500.

The trial court found that although the administrative negligence

claim sounded in malpractice and not in general negligence, Pathway LLC

failed to prove its status as a QHCP and could not benefit from the LMMA.

In its reasons for this finding, the trial court noted that Pathway LLC had

failed to file an exception of prematurity invoking its right to the medical

review panel consideration prior to the filing of the suit. The trial court

concluded that it had waived its right to invoke the review and also waived

the right to limit its damages as provided by the LMMA.

The trial court further addressed the jury’s award of damages and

found that, regardless of the cause of action or theory of recovery, an

appropriate award for both the survival and wrongful death claims was

$625,000 apportioned equally between Defendants ($312,500 each).

The trial court affirmed the special damage award of $297,189.63 in

medical expenses and $500 for funeral expenses, to be paid in equal portions

by Defendants ($148,844.82 each).

The trial court also cast Heritage in judgment for $1,440,317.80 and

Pathway LLC in judgment for $487,181.55. The PCF was not cast in

judgment.
6

The PCF intervened on May 28, 2025, and filed a petition for a

suspensive appeal, which was granted. The PCF’s appeal only raises issues

pertinent to its liability to cover the damages assessed to each Defendant and

requests clarification of its responsibility in the litigation.

Pathway, Heritage and the PCF appeal the judgment of the trial court.

DISCUSSION

Fraud and Attorney Fees

The awards for fraud and attorney fees were rendered against Heritage

alone. Heritage argues that the jury’s judgment was manifestly erroneous

and should have been vacated by the district court when it granted the JNOV

in part and reduced the damages for the fraud award by the amount of

damages awarded for the medical malpractice action. It argues that there

was no reasonable basis for finding that it committed fraud or that it either

consciously desired the physical result of its purported fraud or knew that

the result was substantially certain to follow from its conduct. Heritage

contends that Bennett failed to meet any burden of proof that the alleged

inadequate care resulted from understaffing or that the staffing levels were

low before Davidson was admitted or that it knew it could not meet his

medical needs but still convinced him to reside there. Thus, Bennett failed

to show sufficient knowledge or intent to defraud Davidson or Bennett.

Heritage also argues that if it is liable for fraud, Bennett is precluded

from recovering damages under multiple legal theories because such

recovery for fraud would be duplicative recovery. It contends that Bennett

was awarded damages for survival and wrongful death claims sounding in

negligence but then received an additional $687,500 in fraud damages

7

despite failing to show any additional harm that the fraud caused. For this

reason, Heritage argues that the fraud damages award should be vacated.

Bennett’s argument for fraud against Heritage is twofold, i.e., that

Heritage failed to provide adequate staffing to meet Davidson’s needs and

that those actions and failure to act constituted administrative negligence,

i.e., ordinary negligence, and that it made representations to him at the time

of his admission with knowledge that those representations were false and

which they had no intention of fulfilling. She asserts that the damages are

intended to compensate for Davidson’s lost opportunity to reside in a

different nursing home, not for his injury or death, and that the LMMA does

not apply to this fraud claim.

The standard for reviewing a JNOV is the manifest error standard.

Caskey v. Merrick Const. Co., 46,886 (La. App. 2 Cir. 3/14/12), 86 So. 3d

186, writ denied, 12-0847 (La. 6/1/12), 90 So. 3d 442. A motion for JNOV

presents the legal question of whether there is sufficient evidence to support

a jury verdict. Id. In reviewing the JNOV, the appellate court must first

determine if the trial court erred in granting the JNOV. Id. The appellate

court uses the same criteria as the trial court to determine if the trial court

properly granted a JNOV, i.e., do the facts and inferences point so strongly

and overwhelmingly in favor of the moving party that reasonable persons

could not arrive at a contrary verdict. Id. After determining that the trial

judge correctly applied its standard of review as to the jury verdict, the

appellate court reviews the JNOV using the manifest error standard of

review. Id.

Fraud is a misrepresentation or a suppression of the truth made with

the intention either to obtain an unjust advantage for one party or to cause a
8

loss or inconvenience to the other. La. C.C. art. 1953. Fraud may also result

from silence or inaction. Id. Fraud need only be proved by a preponderance

of the evidence and may be established by circumstantial evidence. La. C.C.

art. 1957. The party against whom rescission is granted because of fraud is

liable for damages and attorney fees. La. C.C. art. 1958.

Whether a claim sounds in medical malpractice is a question of law

reviewed under a de novo standard. Patterson v. Claiborne Operator Grp.,

L.L.C., 55,264 (La. App. 2 Cir. 11/15/23), 374 So. 3d 299.

Malpractice is defined at La. R.S. 40:1231.1(A)(13) as follows:

“Malpractice” means any unintentional tort or any breach of
contract based on health care or professional services rendered,
or which should have been rendered, by a health care provider,
to a patient, including but not limited to failure to render
services timely and the handling of a patient, loading and
unloading of a patient, and all legal responsibility of a health
care provider arising from acts or omissions during the
procurement of blood or blood components, in the staffing,
training, or supervision of health care providers, or from defects
in blood, tissue, transplants, drugs, and medicines, or from
defects in or failures of prosthetic devices implanted in or used
on or in the person of a patient. This includes all acts associated
with the medical treatment of an individual, whether directly
related to clinical care or performed in an administrative or
managerial capacity necessary for the delivery of such care.

Tort is defined at La. R.S. 40:1231.1(A)(22) as follows:

“Tort” means any breach of duty or any negligent act or
omission proximately causing injury or damage to another. The
standard of care required of every health care provider, except a
hospital, in rendering professional services or health care to a
patient, shall be to exercise that degree of skill ordinarily
employed, under similar circumstances, by the members of his
profession in good standing in the same community or locality,
and to use reasonable care and diligence, along with his best
judgment, in the application of his skill.

In Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So. 2d 303, the

supreme court identified six factors to be utilized in determining whether an

action sounds in medical malpractice: (1) whether the specific wrong is
9

treatment related or caused by a failure of professional skill; (2) whether the

specific wrong will require expert medical evidence to determine if the

appropriate standard of care was breached; (3) whether the pertinent act or

omission involved assessment of the patient’s condition; (4) whether an

incident occurred in the context of a physician-patient relationship or was

within the scope of activities that a hospital is licensed to perform; (5)

whether the injury would have occurred if the patient did not seek treatment;

(6) whether the alleged tort was intentional.

In Broden v. Priority Mgmt. Grp., L.L.C., 25-01651 (La. 2/12/26),

427 So. 3d 726, the plaintiffs sued a nursing home manager, which was a

QHCP, alleging claims for administrative negligence including

understaffing and poor staffing of a nursing home which resulted in

inadequate care being provided to a resident in the months prior to his death.

Because the defendant was a QHCP, the pertinent issue addressed was

whether the claims constituted medical malpractice within the meaning of

the LMMA or were more properly characterized as general negligence. The

court also discussed whether understaffing and underfunding were

“intentional” acts which fell outside of the LMMA and concluded that the

mere allegation does not establish an intentional tort sufficient to circumvent

the requirements and protections of the LMMA. Broden v. Priority Mgmt.

Grp., L.L.C., supra, stated in footnote 7:

Intent for these purposes requires that the person committing the
action “consciously desires the physical result of his act” or that
the injuries were “substantially certain to follow from his
conduct, whatever his desire may be.” Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981). In this context, that would
require proving [management company] consciously desired the
injuries or death of [resident] or that the same was substantially
certain to follow its conduct, which they did not do in this case.

10

Simply using the word “intentional” does not convert a medical
malpractice claim into an intentional tort.

In Douglas v. Pathway Mgt. of La, LLC, 56-040 (La. App. 2 Cir.

4/9/25), 408 So. 3d 1186, this court stated:

The administrative claims of understaffing set forth in
plaintiff’s petition tend to show the degree of care which was,
or should have been, provided to plaintiff, and the appropriate
standard of care are questions which require expert medical
knowledge ... Likewise, the opinion of experts will be required
to determine if [the management company] breached the
standard of care by, inter alia, failing to ensure [the nursing
home] had sufficient resources to maintain adequate staffing to
meet plaintiff's needs in accordance with her plan of care.

See also Patterson v. Claiborne Operator Group, LLC, supra,

examining understaffing and inadequate staffing claims, and finding that

“they are all related to an alleged failure to provide care, which is the very

essence of the LMMA.”

Bennett’s claim for fraud based on false statements made to Davidson

upon admission, which allegedly prevented him from having an opportunity

to reside elsewhere, is not a viable ground for recovery. Fraud cannot be

predicated on unfulfilled promises or statements as to future events.

Johnson v. Unopened Succession of Alfred Covington, Jr., 42,488 (La. App.

2 Cir. 10/31/07), 969 So. 2d 733.

The manifest error standard applies to the review of medical

malpractice cases. Under the manifest error standard of review, a factual

finding cannot be set aside unless the appellate court finds that it is

manifestly erroneous or clearly wrong. Temple v. Ballard, 56,407 (La. App.

2 Cir. 11/19/25), 425 So. 3d 206, writ denied, 26-00144 (La. 4/9/26),

429 So. 3d 726. In order to reverse a fact finder’s determination, an

appellate court must review the record in its entirety and (1) find that a

11

reasonable factual basis does not exist for the finding, and (2) further

determine that the record establishes that the fact finder is clearly wrong or

manifestly erroneous. Id. The appellate court must not reweigh the

evidence or substitute its own factual findings because it would have decided

the case differently. Id. The issue to be decided by the reviewing court is

not whether the trier of fact was right or wrong, but whether the fact finder’s

conclusion was a reasonable one. Id.

Where there are two permissible views of the evidence, the fact

finder’s choice between them cannot be manifestly erroneous or clearly

wrong. Id. When the jury’s findings of fact are reasonable in light of the

entire record, an appellate court may not reverse a choice between two

permissible views of the evidence. Rosell v. ESCO, 549 So. 2d 840 (La.

1989); Temple, supra.

Bennett failed to produce any proof that Heritage intentionally

committed fraud upon Davidson by implying it would abide by its duty to

provide care and in failing to do so. The burden of proof, which required a

showing of intent to deceive and that Heritage knew that the result was

substantially certain to follow from its conduct, was never met in this case.

Simply using the word “intentional” does not convert a medical malpractice

claim into an intentional tort; and, therefore, these are not allegations upon

which a judgment of fraud can be based.

After reviewing the JNOV, we find the trial court committed manifest

error in its decision to affirm the jury’s fraud judgment albeit modified by

reduction by the amount of damages awarded in medical malpractice. The

record does not contain sufficient evidence to support a jury verdict of fraud

12

separate from the claim of medical malpractice. For the foregoing reasons,

we find the assignment of error to have merit.

We note that the attorney fees were awarded against Heritage for the

judgment of fraud pursuant to La. C.C. art. 1958. The trial court addressed

the issue in the JNOV and determined that Heritage would pay $265,636.25

in attorney fees to Bennett for the prosecution of the fraud claim. Although

Heritage did not raise any argument specifically addressing this award of

attorney fees, once it was determined that there was no basis for fraud, there

was no statutory basis for attorney fees and none should have been awarded.

La. C.C.P. art. 2164 provides that the appellate court shall render any

judgment which is just, legal and proper upon the record on appeal. Because

we find it was manifest error to award any amount for fraud, we reverse the

trial court’s judgment on the JNOV and vacate the damage award against

Heritage of $687,500 and the award of attorney fees of $265,636.25.2

Pathway LLC’s Status
as a Qualified Health Care Provider

Pathway LLC argues that the trial court abused its discretion in

refusing to accept the proffer of its proof of enrollment in the PCF during

trial and then committed manifest error when it made the factual

determination that it was not entitled to the benefit of enrollment limiting the

damages against it to $100,000 under the LMMA and finding that the PCF

would be responsible for the remainder of its judgment up to the cap of

$500,000. It asserts that the applicability of the LMMA is a legal issue and

2
We note that Bennett has argued that a successful party who was awarded
attorney fees in the trial court and then successfully defends an appeal is entitled to an
award of additional fees and costs for the additional work required in that defense. She
sought remand to quantify the amount due for additional work done, including preparing
an answer and drafting an appellate brief. However, because she was unsuccessful in
defense of the fraud judgment and the award of attorney fees, this issue is pretermitted.
13

that this court should conduct a de novo review of the record, including the

proffered certificate, and find that it proved it was enrolled and entitled to

the protections provided by certification.

Bennett argues the trial court’s judgment denying Pathway QHCP

status was not an abuse of discretion or manifestly erroneous. Pathway LLC

never produced its certificate of enrollment in the PCF in response to a

discovery request and failed to produce “thousands of pages of medical

records.” She contends that Pathway LLC also never provided a copy of the

proper certificate during trial. The trial court found that she was justified in

believing Pathway LLC was not a QHCP and that to allow use of the

proffered proof at trial “would have rewarded Defendants’ seemingly casual

compliance with their discovery obligations and would have transformed

what was either a deliberate misdirection or an unintentional mistake into a

tactical advantage at trial.”

La. R.S. 40:1231.2 concerns qualification as a QHCP and states as

follows:

A. To be qualified under the provisions of this Part, a health
care provider shall:

(1) Cause to be filed with the board proof of financial
responsibility as provided by Subsection E of this Section.

(2) Pay the surcharge assessed by this Part on all health care
providers according to R.S. 40:1231.4.

(3) For self-insured health care providers, initial qualification
shall be effective upon acceptance of proof of financial
responsibility by and payment of the surcharge to the board.
Initial qualification shall be effective for all other health care
providers at the time the malpractice insurer accepts payment of
the surcharge.

These same requirements are reiterated in LAC 37:III.501, et seq.,

which governs the qualifications, conditions and procedures required for
14

PCF enrollment. Roberson v. Arcadia Healthcare Ctr., Inc., 37,761 (La.

App. 2 Cir. 7/9/03), 850 So. 2d 1059. In Roberson, this court noted that of

particular relevance is LAC 37:III.515, which concerns the certificate of

enrollment and provides as follows:

A. Upon receipt and approval of a completed application
(including evidence of financial responsibility pursuant to
§ 505, § 507, or § 509) and payment of the applicable surcharge
by or on behalf of the applicant health care provider, the
executive director shall issue and deliver to the health care
provider a certificate of enrollment with the fund, identifying
the qualified health care provider and specifying the effective
date and term of such enrollment and the scope of the fund’s
coverage for that health care provider.

LAC 37:III.515(B) states that duplicate or additional certificates of

enrollment shall be available to and upon the request of an enrolled health

care provider or his attorney, or its professional liability insurance

underwriter, when the certification is required to evidence enrollment or

qualification with the fund in connection with an actual or proposed medical

malpractice claim against the health care provider.

These provisions demonstrate that a health care provider becomes

enrolled in the PCF, and is thus qualified, upon approval of an application,

demonstration of financial responsibility to the satisfaction of the PCF and

payment of the applicable surcharge to the PCF. Roberson, supra. Upon

satisfaction of these three basic requirements, a certificate of enrollment is

issued, and this certificate establishes the health care provider to be a

qualified health care provider under the LMMA. Id. This is the only

reference to the “certificate of enrollment” in the LMMA. Roark v. Liberty

Healthcare Sys., LLC, 44,913 (La. App. 2 Cir. 12/9/09), 26 So. 3d 968, writ

denied, 10-0390 (La. 4/23/10), 34 So.3d 265. On this statutory authority for

the allowance for the “certificate of enrollment” as evidence, the
15

jurisprudence holds such certificate is competent evidence to establish a

prima facie case for the applicability of the medical malpractice law

regarding claims against the party identified on the certificate. Id., citing,

Hill v. Brentwood Hosp., Inc., 480 So. 2d 875 (La. App. 2 Cir. 1985).

In order to qualify for the protections and benefits of the LMMA, a

health care provider must satisfy both the financial aspects and the licensing

requirements. In re Price, 56,500 (La. App. 2 Cir. 12/17/25), 425 So. 3d

957, writ denied, 26-00053 (La. 3/31/26), 428 So. 3d 687.

The purpose of the LMMA is to limit the liability of health care

providers who qualify by maintaining specified malpractice insurance and

by paying a surcharge to the PCF. Sewell v. Drs. Hosp., 600 So. 2d 577,

(La. 1992). The LMMA limitations on the liability of a health care provider

are special legislation in derogation of the rights of tort victims. Id. As

such, the coverage of the LMMA should be strictly construed. Id. These

limitations apply only in cases of liability for malpractice as defined in the

LMMA. Id. A qualified health care provider is liable for malpractice only

to the extent provided in the LMMA; namely, a qualified health care

provider has no liability for any amount in excess of $100,000, plus interest.

Roark, supra. All claims against health care providers covered by the Act

are required to be reviewed by a medical review panel. Sewell, supra.

Although Pathway LLC insists it is enrolled in the PCF and is entitled

to the benefits conferred upon it by virtue of its enrollment, it never

presented Bennett with the certificate evidencing enrollment at any time

prior to trial and only proffered the correct certificate to the trial court prior

to judgment on the merits of the case. Pathway apparently waived its first

right under the LMMA to invoke a medical review panel when it failed to
16

file an exception of prematurity to Bennett’s lawsuit. Had the medical

review panel been invoked, the certificate of enrollment would have been

admitted at that time. La. R.S. 40:1231.8(B)(1)(a)(i) and (ii). By agreement

of all parties, the use of the medical review panel may be waived. La.

R.S. 40:1231.8(B)(1)(c). If the burden of proof is on the QHCP, Pathway

should have been able to produce its certificate at some time prior to trial or

should have objected to the prematurity of Bennett’s suit it claims is covered

by the LMMA.

Where there are two permissible views of the evidence, the fact

finder’s choice between them cannot be manifestly erroneous or clearly

wrong. Temple, supra. We do not find the trial court’s conclusion that

Pathway, LLC failed to meet its burden of proof of QHCP status prior to

trial to be manifestly erroneous. This assignment of error is without merit,

and Pathway, LLC is responsible for payment of the judgment rendered

against it as a non-qualified health care provider.

JNOV Damages, Interest and Costs

Bennett and Defendants have all raised issues with the final judgment

rendered by the trial court pursuant to the JNOV. Pathway and Heritage

assert that the trial court correctly reduced the jury’s unreasonable damage

award by making a de novo award based on its independent assessment of

damages. They contend that the jury’s award of general damages of

$1.5 million on Bennett’s survival claim and $1.1 million on the wrongful

death claim far exceeded awards in similar cases, thus necessitating a

reduction by the district court. Defendants also claim the trial court erred in

failing to include the PCF’s liability in the final judgment and erred by

17

incorrectly calculating the date from which interest would run on attorney

fees and the amount of costs awarded.

Bennett contends that the jury’s award of damages for the survival

and wrongful death actions was not abusively high when jurisprudence of

similar cases was considered. Thus, she argues, the trial court erred in

reducing her award pursuant to the JNOV. She argues that the PCF need not

be cast in judgment to be liable for payment to her. She acknowledges that

the date of interest on attorney fees is incorrectly stated in the final judgment

and also acknowledges that the cost award is higher than she requested and

agrees with the amount Defendants assert is due.

Damages

A jury has great discretion in awarding general damages. Pete v.

Boland Marine & Mfg. Co., LLC, 23-00170 (La. 10/20/23), 379 So. 3d 636,

citing La. C.C. art. 2324.1. The discretion afforded to the trier of fact in

awarding general damages is not, however, unfettered. Id.

It is well-settled that appellate courts have a constitutional duty to

review the law and facts and thereafter render a judgment on quantum based

on the merits, including determining whether the jury has abused its much

discretion in awarding general damages. Barber Bros. Contracting Co.,

LLC v. Capitol City Produce Co., LLC, 23-00788 (La. 12/19/24), 397 So. 3d

404, reh’g denied, 23-00788 (La. 2/14/25), 400 So. 3d 918. It is only when

the award is, in either direction, beyond that which a reasonable trier of fact

could assess for the effects of the particular injury to the particular plaintiff

under the particular circumstances that the appellate court should increase or

decrease the award. Barber Bros. Contracting Co. LLC, supra.

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General damage awards must not be obviously the result of passion or

prejudice, and they should bear a reasonable relationship to the elements of

the proved damages. Id. To reduce the trier of fact’s award, a reviewing

court must conclude from the entirety of the evidence viewed in the light

most favorable to the plaintiff that a rational trier of fact could not have

fixed the awards of general damages at the level set by the trial judge or that

this is one of those exceptional cases where such awards are so gross as to be

contrary to right reason. Id. To find abuse of discretion warranting the

disturbance of a fact finder’s award of general damages, a reviewing court

must find that the award is so high or so low in proportion to the injury that

it shocks the conscience. Id.

In Barber Bros., the court stated that it considered prior awards in

similar cases along with the particular facts and circumstances of the case at

bar when it determined whether there had been an abuse of discretion in an

award of general damages. Id.

In the case at bar, the trial court applied the legal analysis approved in

Barber Bros. and determined that the almost $2.6 million in general

damages far exceeded the award in other cases with similar facts. As noted

by the trial court, the case of King v. Brown Dev., Inc., 43,827 (La. App.

2 Cir. 2/4/09), 4 So. 3d 231, writ denied, 09-0499 (La. 4/17/09), 6 So. 3d

796, is very similar to the instant case. In that case, the plaintiff’s father was

an 84-year-old patient in a nursing home who suffered a small pressure sore

on his hip. His condition worsened and it became a Stage IV decubitus

ulcer. The nursing home failed to provide documentation that he had been

repositioned in accordance with his care plan. After becoming malnourished

and dehydrated, he died a month after admission. The jury in that case
19

originally awarded $750,000 for the survival action and wrongful death.

The trial court reduced the award to $500,000, the statutory cap of the

LMMA. The judgment was reduced a second time to $200,000, and it was

appealed to this court. This court determined that although $500,000 was on

the “upper end” of reasonable damages for both actions, “we cannot say that

the record provides no support for the award.” Id.

After examining the facts of the case at bar and the jurisprudence of

other awards, the trial court reduced the award from the very large award of

millions to 25 percent above the award of King, supra, finding reasonable

damages for the survival and wrongful death claims to be $625,000, or

$312,500 each, for Heritage and Pathway LLC in accordance with the jury’s

decision that the damages should be split equally between them.

We find no abuse of discretion in the ruling of the trial court reducing

the damages awarded to Bennett for the wrongful death and survival actions.

The PCF’s Absence from the Final Judgment

Defendants contend that the trial court erred in not including the PCF

in its final judgment and in calculating interest and costs. It notes that the

judgment of October 28, 2024, memorializing the jury verdict correctly

applied La. R.S. 40:1231.2 by capping malpractice damages against Heritage

at $100,000 and casting the PCF in judgment for the excess malpractice

award against Heritage up to $500,000 plus Heritage’s share of medical

costs and related benefits. In that judgment, the PCF was ordered to pay

$548,594.81, consistent with the LMMA. However, Defendants contend

that the final judgment rendered pursuant to the JNOV erroneously failed to

include the PCF, resulting in an assessment of uncapped medical malpractice

damages against Heritage. They argue the judgment should be reversed,
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Heritage’s damages capped and the PCF cast in judgment for the remainder

of the damages.

Bennett claims the PCF need not be cast in judgment to be responsible

for a portion of malpractice damages owed by a QHCP; and, thus, there is no

need to amend the judgment to add the PCF. The law provides for the

damages due from the PCF when status as a QHCP has been established.

The PCF does not have to be made a party to the litigation or cast in

judgment in order to disburse its funds.

The PCF intervened in this appeal to assert its statutory rights,

privileges and immunities and to resist any efforts to enlarge its

responsibility or obligations under the JNOV.3

La. R.S. 40:1231.2(B)(3)(a) provides that any amount due from a

judgment or settlement which is in excess of the total liability of all liable

health care providers, as provided in Paragraph (2) of this Subsection, shall

be paid from the PCF. La. R.S. 40:1231.4(B) states in pertinent part:

(1) Subject to the other provisions of this Section, the board shall
issue payment in the amount of each claim submitted to and approved
by it, or prorated payment, as the case may be, against the fund within
thirty days of receipt of a certified copy of the settlement, judgment,
or arbitration award except that payment for claims made pursuant to
Subparagraph (2)(d) or (e) of this Subsection, or both, shall be made
upon receipt of such certified copy.

(2) The only claim against the fund shall be a voucher or other
appropriate request by the board after it receives:

(a) A certified copy of a final judgment in excess of one
hundred thousand dollars against a health care provider.

3
The PCF did not address the issue raised by Defendants that it had not been cast
in judgment but only asserted its liability for that portion of the judgment for which it was
liable in accordance with the LMMA. The PCF states it is not responsible for the cost
award because it was for costs incurred prior to judgment or its intervention. La.
R.S. 40:1231.2(B)(2). It is not liable for any amounts which Pathway LLC was cast in
judgment because it is not a QHCP, citing La. R.S. 40:1231.1(D). It is liable for excess
damages arising from or caused by health care provided by Heritage subject to credits
and the cap on damages. La. R.S. 40:1231.2.
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The LMMA neither contemplates the PCF as a party defendant, nor

gives the PCF status as a co-obligor or insurer of the health care provider.

Khammash v. Clark, 13-1564 (La. 5/7/14), 145 So. 3d 246. The PCF is a

statutory intervenor who has an interest in the proceedings between the

claimant and the health care provider because any damages in excess of

$100,00 are payable by the PCF. Id.4

Because the PCF need not be cast in the final judgment being

appealed, we find no error in the trial court’s decision not to cast it in

judgment. The law provides a remedy for recovery of damages against the

PCF when the final judgment against a QHCP exceeds $100,000, as it does

in the case at bar. The PCF has acknowledged that it is responsible for

payment of damages against Heritage, which exceed $100,000, and that

Heritage is responsible for the first $100,000, and the PCF is responsible for

any excess amounts or $361,344.81. However, the PCF is not liable for

costs awarded prior to judgment. La. R.S. 40:1231.2(B)(2).

Interest and Costs

Defendants assert that the final judgment on the JNOV erroneously

held that interest on all awards, including the attorney fee award, ran from

the date of judicial demand, and that is an error. They contend that this is a

legal error; and assuming attorney fees are awarded, Bennett is only entitled

to interest on such award from the date of the final judgment.

Bennett agrees with Defendants that the trial court’s calculation of

interest on attorney fees should accrue from the date of judgment rather than

4
Khammash, supra, was rendered in May 2014 and was based on La.
R.S. 40:1299.44(C)(5)(a), which was amended effective June 2, 2015, and redesignated
as La. R.S. 40:1231.4.
22

the date of judicial demand. However, Bennett contends that the trial court’s

award of interest on the other damages from the date of judicial demand

should remain intact.

Because the award of attorney fees was based on the fraud judgment,

both of which were vacated earlier in this opinion, the issue of the date from

which interest was awarded on the attorney fees is moot.

Legal interest shall attach from date of judicial demand, on all

judgments, sounding in damages, “ex delicto,” which may be rendered by

any of the courts. La. R.S. 13:4203. Interest on damages awarded against

Heritage other than for fraud was correctly stated in the JNOV as running

from the date of the filing of the medical malpractice complaint on May 13,

2020. Because no medical malpractice complaint was filed against Pathway

LLC, and it is not a QHCP, interest on the judgment against it began to run

on the date of judicial demand, September 18, 2020. La. C.C.P. art. 1921;

La. R.S. 13:4203.

Costs

Defendants’ final issue with the JNOV regards the award of costs of

$51,673.46, which they contend was manifest error and should be reduced to

$46,285.03, the amount Bennett actually requested be awarded.

Bennett agrees that she deleted some deposition costs from the total of

costs requested and ultimately asked the trial court to award $46,285.03.

She agrees that the costs should be amended to reflect the lower amount.

Because of the agreement of the parties that the proper award of costs

is $46,285.03, the judgment will be amended to reflect this amount.

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CONCLUSION

Based on the foregoing, the judgment is reversed and vacated insofar

as it awarded any damages and attorney fees for fraud, amended to reflect

the correct amount of costs, and otherwise affirmed. Defendant Heritage

Manor West, LLC, as a qualified health care provider, is cast in judgment

for medical malpractice damages in the amount of $312,500; special

damages in the amount of $148,844.82; and costs in the amount of

$23,142.51 (half of $46,285.03), plus interest from the date of the filing of

the medical malpractice action on May 13, 2020. Heritage Manor West,

LLC, is entitled to the benefits of enrollment in the Patient’s Compensation

Fund limiting its liability to $100,000. Pathway Management of Louisiana,

LLC, a non-qualified health care provider, is cast in judgment for $312,500

for general damages; $148,844.82 for special damages; and $23,142.51, plus

legal interest from date of judicial demand, September 18, 2020.

Costs of this appeal are assessed against the three parties equally.

REVERSED IN PART AND VACATED, AFFIRMED IN PART,

AND MODIFIED AS TO COSTS.

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