Tina Lynette Watkins, Etc. v. Lake Charles Memorial Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-355

TINA LYNETTE WATKINS, ETC.

VERSUS

LAKE CHARLES MEMORIAL HOSPITAL, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 94-596
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

SYLVIA R. COOKS
JUDGE
**********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, Marc T. Amy, Billy H. Ezell,
and John B. Scofield*, Judges.

Peters, J., concurs in the result.
Amy, J., concurs in part and dissents in part and assigns reasons.

AFFIRMED, AS AMENDED.

R. Ray Orrill, Jr.
Orrill, Cordell & Beary, LLC
1010 Common Street, 31st Floor
New Orleans, LA 70112
(504) 299-8724
COUNSEL FOR PLAINTIFF/APPELLEE:
Tina Lynette Watkins, Individually

Leslie A. Cordell
Orrill, Cordell & Beary, LLC
7240 Crowder Boulevard, Suite 300
New Orleans, LA 70127
(504) 246-4370
COUNSEL FOR PLAINTIFF/APPELLEE:
Tina Lynette Watkins, Individually

* John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore

Michael K. Prudhomme
Lundy & Davis
Post Office Box 3010
Lake Charles, LA 70602
(337) 439-0707
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Patients' Compensation Fund

COOKS, Judge.

The Louisiana Patient’s Compensation Fund (LPCF) appeals a judgment from

the trial court, awarding damages resulting from medical malpractice at the time of

the minor plaintiff’s birth. In addition to general damages and accrued medical and

related expenses, future medical care and related benefits were quantified. The LPCF

questions the trial court’s determination of the amount of future medical care and

related benefits, asserting that the relevant statute does not permit a particularized

award, but only a determination as to whether the plaintiff was entitled to future

medical expenses. It contends all determinations as to particularized expenses rests

with the Louisiana Patient’s Compensation Oversight Board. The LPCF further

contests the quantum of the general damages award and the fashion in which the

judgment awarded interest on the judgment. For the following reasons, we affirm the

decision of the trial court.

Factual and Procedural Background

Tina Lynette Watkins appears in this matter on her own behalf as well as on

behalf of her minor child, Dustin Watkins. The issues involved herein relate to Ms.

Watkins’ pregnancy and Dustin’s birth. During her pregnancy, Ms. Watkins first

visited Dr. Richard Barry, an obstetrician, in August 1990. At the time, Ms. Watkins

was several months into her pregnancy. Dr. Barry eventually predicted a due date of

December 4, 1990. Ms. Watkins reported to Lake Charles Memorial Hospital

(LCMH) on December 19th after the onset of labor. Dustin was delivered by

caesarean section in the early morning hours of December 20, 1990.

Ms. Watkins’ petition alleges after his birth, Dustin began suffering from

seizures, which required readmission to the hospital. Ms. Watkins contends Dr. Barry

failed to properly calculate Dustin’s due date. As a result Dustin received inadequate

nutrition while in the womb causing him to suffer a stroke prior to birth. Dustin “is

severely and permanently brain damaged, requiring constant, close, specialized care

and monitoring, as well as continuous medications for pain and seizures.”

Ms. Watkins named Dr. Barry and LCMH as defendants. Following a bench

trial, judgment was rendered in favor of the Plaintiff. The totality of the fault was

assigned to Dr. Barry. LCMH was subsequently dismissed. Damages were awarded

as follows: Dustin’s General Damages - $2,000,000.00; Ms. Watkins’ Loss of

Consortium - $250,000.00; Dustin’s Loss of Anticipated Future Earnings -

$241,020.00. A notation was made in the judgment regarding the necessary reduction

to the $500,000 cap of the Medical Malpractice Act contained in La.R.S.

40:1299.42(B)(1)1.

With regard to special damages, the trial court awarded “accrued medical and

related (i.e. custodial care) expenses from December 24, 1990 through the date of

judgment in the amount of $437,193.08 plus interest.” Finally, the trial court found

Dustin to be in need of future medical care, quantifying specific areas of future

medical care and related benefits found to be appropriate.2

1
Louisiana Revised Statutes 40:1299.42(B)(1) provides:

(1) The total amount recoverable for all malpractice claims for injuries to or
death of a patient, exclusive of future medical care and related benefits as provided
in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and
cost.
2
The medical care portion of the judgment reads:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be
judgment rendered herein in favor of the plaintiffs and against the defendant, Richard
J. Barry, M.D., pursuant to LSA-R.S. 40:1299.43(A)(2), decreeing that plaintiff,
Dustin Watkins, is in need of future medical care and related benefits in the
following amounts:

Educational Evaluation $6,000.00
Occupational Therapy Evaluation $ 925.00
Speech Therapy Evaluation $ 825.00
Driving Evaluation $ 650.00

2

Following trial, Dr. Barry tendered $125,000 in satisfaction of the judgment for

which he was responsible under the Medical Malpractice Act3 and was dismissed

Vocational Evaluation $3,500.00
Psychological Counseling
(25-30/yr @ $175.00/ea. x 5) $21,875.00
Psychological Counseling
(300/life, commencing at age 18, @ $175.00/ea.) $52,500.00
Speech Therapy $65,000.00
Occupational Therapy $78,000.00
Tutoring $39,520.00
Family Counseling $21,000.00
Vocational Counseling $ 5,000.00

Psychiatrist (initial evaluation) $ 1,200.00
(2/mo. @ $175.00/ea. x 1 yr.) $18,200.00
(1/mo. @ $175.00/ea. x 1 yr.) $ 9,100.00
(4/yr. @ $175.00/ea. x 64 yrs.) $44,800.00
Neurologist/Neurosurgeon
(4/yr. @ $150.00/ea. x 64 yrs.) $38,000.00
Pediatrician (6 /yr. @ $115.00/ea.
x 5 yrs.) $ 3,450.00

Diagnostic Testing (1/yr. @
$2,000.00/ea. x 5 yrs.) $10,000.00
Case Manager (4/mo. @ $300.00/mo.
x 12 mos. x 64 yrs.) $230,400.00

Respite Care (20/hrs./wk. @ $15.00/hr.
x 5 yrs) $ 78,000

Custodial care, value of special services
functioning as nurse/attendant, from present
until 2008 (when Dustin turns 18); 12/hrs/day
x 7 days/wk. x 52/wks/yr. x $7.50 hr./ x 5 yrs. $163,800.00

Live-in support (24/hrs./day commencing
@ age 18 @ $10.00/hr x 59 yrs.) $5,168,400.00

Medications:
Concerta (54 mgs.)
($170.00/mo. x 64 yrs.) $130,560.00
Concerta (18 mgs.)
($97.50/mo. x 64 yrs.) $74,880.00
Clonidine ($22.50/mo. x 64 yrs.) $17,280.00
3
A qualified health care provider’s limitation of liability under the Medical Malpractice Act
is contained in La.R.S. 40:1299.42(B)(2), which provides:

(2) A health care provider qualified under this Part is not liable for an amount
in excess of one hundred thousand dollars plus interest thereon accruing after April
1, 1991, for all malpractice claims because of injuries to or death of any one patient.

3

from the proceedings. The LPCF intervened and appealed, asserting the following

assignments of error:

1. The trial court erred in its rendition of judgment for future
medical expenses in that it lacked the requisite subject matter
jurisdiction to make such an award and its findings were contrary
to LSA-R.S. 40:1299.43.

2. The trial court’s award of attendant care was contrary to the rules
and regulations promulgated by the Louisiana Patients’
Compensation Fund.

3. The trial court’s award of interest on the award of general
damages and accrued damages from the date of filing with the
Medical Review Panel until paid in full is contrary to LSA-R.S.
40:1299.42.

4. The amount of damages awarded was clearly excessive.

Discussion

Future Medical Expenses

In its first assignment of error, the LPCF questions trial court’s finding and

itemization of future medical care and benefits in its judgment. The LPCF contends

the inclusion of these figures in the judgment exceeds the trial court’s authority under

the Medical Malpractice Act(Act). The LPCF argues the Act limits the trial court to

a finding that a patient is or is not in need of future medical care and related benefits

without the recitation of specific amounts. The LPCF insists it alone has statutory

authority to determine the amounts owed for future medical expenses. In support of

its position, the LPCF relies on language contained in Kelty v. Brumfield, 93-1142

(La. 2/25/94), 633 So.2d 1210. We have carefully reviewed the referenced language

but in the final analysis, we are not persuaded that Kelty requires us to ignore the

clear language found in the Act. The Act specifically requires the trial court to

determine the amount of future medicals due.

4

Louisiana Revised Statute 40:1299.43(A)(2) provides, in relevant part:

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 and the amount
thereof.(emphasis added)

Thus, Section A requires a determination as to whether a plaintiff is in need of

future medical care; and, if so, further directs the court to specify the amount thereof.4

Rather than divest the trial court of jurisdiction to determine future medical expenses,

the Act mandates that the trial court first render a judgment for future medical

expenses and the amount thereof prior to plaintiff submitting a claim for payment to

the LPCF.

Louisiana Revised Statutes 40:1299.43(C) provides, in relevant part:

(C)Once a judgment is entered in favor of a patient who is found
to be in need of future medical care and related benefits or a settlement
is reached between a patient and the patient’s compensation fund in
which the provision of medical care and related benefits is agreed upon
and continuing as long as medical or surgical attention is reasonably
necessary, the patient may make a claim to the patient’s compensation
fund through the board for all future medical care and related benefits
directly or indirectly made necessary by the health care provider’s
malpractice unless the patient refuses to allow them to be furnished.
(emphasis added.)

Although contained in the judgment, these expenses are not made executory

until review and approval by the LPCF or, if denied, upon subsequent order of the

court under its continuing jurisdiction. See La.R.S. 40:1299.43(E)(1).5

The judgment in the present case awarded $500,000 in general damages and

4
See Hall v. Brookshire Bros. 02-2404 (La. 6/27/03), 848 So.2d 559 (wherein a jury found
the plaintiff in need of in excess of $3,000,000.00 dollars); LeRay v. Bartholomew, 03-1370 (La.App.
5 Cir. 3/30/04), 871 So.2d 492 (wherein a jury found $8,000,000.00 dollars in future medical care
and related benefits necessary).
5
“The district court from which final judgment issues shall have continuing jurisdiction in
cases where medical care and related benefits are determined to be needed by the patient.”

5

$437,193.08 plus interest for accrued medical and related care through the time of

judgment. Further the judgment provides: “[J]udgment [is] rendered in favor of the

plaintiffs and against the defendant, Richard J. Barry, M.D., pursuant to LSA-R.S.

40:1299.43(A)(2) decreeing that plaintiff, Dustin Watkins, is in need of future

medical care and related benefits in the following amounts . . . .” The judgment then

includes the specific benefits found appropriate by the trial court. Our review

indicates that this listing is consistent with the requirements of Section A. The trial

court acknowledged the statutory scheme which requires a plaintiff to submit future

claims to the LPCF stating: “[A]gain the Court is taking cognizance of the suit record

that the Patient’s Compensation Fund would be involved and that those amounts

would be paid as they were incurred and submitted pursuant to the Act.” We find no

error in this portion of the trial court’s judgment.

Accrued Medical Expenses and Attendant/Respite Care

A portion of the judgment also awarded “accrued medical and related (i.e.

custodial care) expenses from December 24, 19906 through the date of judgment in

the amount of $437,193.08 plus interest.” These figures were treated as a separate

element of recovery apart from the future medical care and related benefits, discussed

above, and were reduced to a money judgment. The LPCF argues that casting it in

judgment for accrued medical expenses was in error as these damages fall within

La.R.S. 40:1299.43(B)’s definition of “future medical care and related benefits”, over

which the LPCF has exclusive authority. The LPCF, thus, contends the trial court

lacks jurisdiction and therefore has no authority under the Act to make any

determination as to future medical care, whether accrued at the time of trial or which

6
The date on which Dustin entered the hospital after having suffered seizures following his
birth on December 20, 1990.

6

may be incurred subsequently. Additionally, with respect to the award for attendant

and respite care, the LPCF questions the quantum awarded, arguing that the figure

found appropriate by the trial court is contrary to LPCF standards for payment for

similar services.

We turn first to the question of whether the trial court has authority to cast

LPCF in judgment for already incurred “future” medical expenses. The definition of

“future medical care and related benefits” is contained in La.R.S. 40:1299.43(B)(1),

which provides broadly, that:

“Future medical care and related benefits” for the purpose of this
Section means all reasonable medical, surgical, hospitalization, physical
rehabilitation, and custodial services and includes drugs, prosthetic
devices, and other similar materials reasonably necessary in the
provision of such services, after the date of injury.

(Emphasis added.)

Although this provision does not distinguish between medical expenses

incurred from the date of injury to judgment or settlement and those expenses not yet

incurred but which may be necessary after the date of judgment, the courts have

routinely included already incurred medical expenses in the judgment and made then

executory. See Hall v. Brookshire Bros., Ltd., 02-2404 (La. 6/27/03), 848 So.2d 559,

and other circuits following Hall. In Hall, the supreme court held interest was owed

on “future” medical expenses which had already been incurred. Implicit in this

holding is a finding that the trial court decision reducing these medical expenses to

a money judgment was correct. Interpreting the Hall decision in any other way

requires a strained interpretation which was never intended by the legislature.7 See

7
A 2004 amendment to La.R.S. 40:1299.43(A)(4) clarifies that future medical expenses
already incurred at the time of judgment shall be included in the money judgment and made
executory. The amendment provides: “The remaining portion of the judgment, including the
amount of future medical care and related benefits incurred up to the date of the response to the
special interrogatory by the jury or the court’s finding shall be paid in accordance with R.S.

7

LeRay v. Bartholomew, 03-1370 (La.App. 5 Cir. 3/30/04), 871 So.2d 492 (where the

fifth circuit approved the reduction of medical costs incurred up until the date of trial

to a money judgment); Maxwell v. Soileau, 561 So.2d 1378 (La.App. 2 Cir.), writ

denied, 567 So.2d 1124 (La. 1990)(where the second circuit included already incurred

medical expenses in a money judgment awarded to plaintiff on appeal); and Fusilier

v. Dauterive, 99-692 (La.App. 3 Cir. 1/10/01), 779 So.2d 950 (where this court

awarded plaintiff $67,876.75, plus legal interest, for medical expenses incurred after

the accident.) In LeRay, 871 So.2d 492, the fifth circuit stated:

The judgment further authorizes plaintiffs to make claims for such
expenses to the LPCF, without entering a judgment on the exact sum.
The only money judgment related to this issue is the award of
$898,190.34 for medical expenses and related benefits already incurred.
The trial court correctly made the distinction between medical expenses
and related benefits incurred between the accident and the date of trial,
and future medical expenses which will occur after trial. In recognizing
this difference, the trial court correctly reduced the past medical
expenses to a money judgment, but merely acknowledged the right of
plaintiffs to bring a claim for any future medical expenses to the LPCF.
We find that to be correct and within the trial court’s grant of
jurisdiction.

Id. at 502 (emphasis added).

Moreover, under the Act the trial court is vested with “continuing jurisdiction

in cases where medical care and related benefits are determined to be needed by the

patient.” La.R.S. 40:1299.43(E)(1). The LPCF had a fair opportunity at trial to

contest the amount requested by the plaintiff, which it did. We conclude the trial

court had authority to make a determination regarding the amounts owed for past

medical care and to reduce those amounts to a money judgment prior to the recent

amendment, which simply sought to clarify the Act’s requirement and codify existing

jurisprudence on this issue.

40:1299.44(A)(7) and R.S. 40:1299(B)(2)(a),(b), and (c).’”

8

As noted, the LPCF contests the figure found appropriate for the past attendant

care. We have reviewed the record and find no error in the determination made by

the trial court regarding past accrued medical and related benefits.

Interest

In its next assignment of error, the LPCF questions the manner in which the

judgment awarded interest. The judgment states: “IT IS FURTHER ORDERED,

ADJUDGED AND DECREED that, pursuant to LSA-R.S. 40:1299.44(M), plaintiffs

are entitled to recover interest at the judicial rate on the award of general and accrued

damages from the date of filing with the Medical Review Panel until paid in full.”

The LPCF contends that the judgment is ambiguous in that it could appear to permit

interest on the totality of general damages awarded rather than the $400,000 liability

incurred by the LPCF after the reduction by the cap. It notes that this type of

recovery is prohibited by La.R.S. 40:1299.42(B), which provides, in part, that a

plaintiff’s maximum recovery for a malpractice claim is “five hundred thousand

dollars plus interest and costs” and that the health care provider is liable for not more

than his or her one hundred thousand dollar responsibility under the statute “plus

interest thereon.” While perhaps the judgment is arguably vague, we find no error

regarding interest on the accrued medical expenses. Hall, 848 So.2d 559. However,

we amend the judgment to indicate more fully that interest is to be paid at the judicial

rate on the award of $400,000.00 in general damages from the date of filing with the

Medical Review Panel until paid in full. See La.R.S. 40:1299.47(M).

Quantum of Damages Awarded

After hearing evidence presented by the plaintiff, the trial court awarded

$2,000,000 in general damages for Dustin’s injuries, $250,000 for loss of consortium

9

to the plaintiff, and $241,020 in loss of earning capacity to Dustin. While

recognizing the reduction to the $500,000 liability cap, the LPCF generally asserts

that the figures awarded were clearly excessive, referencing cases in which lesser

general damages were awarded to other children who suffered injury at the time of

birth.

In reviewing an award for general damages, an appellate court must initially

inquire whether the trier of fact abused its discretion in assessing the amount

necessary given the circumstances of the injury. Cone v. Nat’l Emergency Serv., Inc.,

99-934 (La. 10/29/99), 747 So.2d 1085. Only in the event that the reviewing court

finds an abuse of discretion is comparison made to prior awards for determination of

the highest or lowest amount that was reasonably within the trier of fact’s discretion.

Id.

Our review of the record reveals no abuse of discretion in assessing $2,000,000

in general damages given the particular facts and circumstances of this case. It is

uncontested that Dustin suffered brain damage due to the circumstances surrounding

his birth. Dr. Bruce Roseman, a pediatric neurologist, explained that he felt that

Dustin suffered a stroke approximately two days prior to his birth. As a result of the

injury to the brain sustained during the stroke, Dustin has suffered seizures and has

demonstrated cognitive function that was described as mentally retarded. In school,

he functions well below his grade level and is in remedial classes throughout the day.

Furthermore, a number of witnesses testified to his behavioral difficulties, which

included periods of both verbal and physical aggression. Dr. Roseman opined that

Dustin will need constant supervision throughout his life to diminish the possibility

of injury to either Dustin or others. Dr. Roseman also explained that, in his opinion,

10

when Dustin grows older he will probably be unable to work in an independent

setting and should not be permitted to drive. The plaintiff also testified regarding

Dustin’s problems at home and school, explaining that she is often fearful for her

family given the nature of Dustin’s behavioral difficulties. In light of the nature of

his injuries, we find no abuse of discretion in the general damages awarded as a result

of the malpractice. Accordingly, the damages awarded are affirmed.

DECREE

For the foregoing reasons, we affirm that portion of the judgment in which the

trial court quantified the future medical care and related benefits pursuant to La.R.S.

40:1299.43(A)(2), but clarify, to the extent the LPCF is genuinely confused, that it

is not cast in money judgment at this time for those expenses. The plaintiff retains

the right to seek all future medical care and related benefits with the Louisiana

Patient’s Compensation Statute as is authorized by La.R.S. 40:1299.43(C). We affirm

that portion of the judgment including accrued medical care and related benefits in

the money judgment in the amount of $437,193.08 plus legal interest. We amend the

judgment to more fully indicate that interest is to be paid at the judicial rate on the

award of $400,000.00 in general damages from the date of filing with the Medical

Review Panel until paid in full. All costs for this appeal are assessed to the Louisiana

Patient’s Compensation Fund.

AFFIRMED, AS AMENDED.

11

NUMBER 04-355

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

TINA LYNETTE WATKINS, ETC.

VERSUS

LAKE CHARLES MEMORIAL HOSPITAL, ET AL.

AMY, J., concurring in part, dissenting in part.

I dissent from the majority analysis in all respects other than the affirmation of

the general damages award.

Future Medical Care and Related Benefits

The LPCF argues that the trial court erred in making any factual findings

regarding the quantification of future medical care and related benefits. I find that the

matter is best understood by reference to both La.R.S. 40:1299.43 and the Louisiana

Supreme Court’s decision in Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d

1210.

At the time of trial, La.R.S. 40:1299.43 provided, in pertinent part:

A. (1) In all malpractice claims filed with the board which
proceed to trial, the jury shall be given a special interrogatory asking if
the patient is in need of future medical care and related benefits and the
amount thereof.

(2) 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 and the amount thereof.

(3) If the total amount is for the maximum amount recoverable,
exclusive of the value of future medical care and related benefits, the
cost of all future medical care and related benefits shall be paid in
accordance with this Section.

(4) If the total amount is for the maximum amount recoverable,
including the value of the future medical care and related benefits, the
amount of future medical care and related benefits shall be deducted
from the total amount and shall be paid from the patient’s compensation
fund as incurred and presented for payment. The remaining portion of

the judgment shall be paid in accordance with R.S. 40:1299.44(A)(7)
and 40:1299.44(B)(2)(a),(b), and (c).

(5) In all cases where judgment is rendered for a total amount less
than the maximum amount recoverable, including any amount awarded
on future medical care and related benefits, payment shall be in
accordance with R.S. 40:1299.44(A)(7) and 40:1299.44(B)(2)(a), (b),
and (c).

(6) The provisions of this Subsection shall be applicable to all
malpractice claims.

....

C. Once a judgment is entered in favor of a patient who is found
to be in need of future medical care and related benefits or a settlement
is reached between a patient and the patient’s compensation fund in
which the provision of medical care and related benefits is agreed upon
and continuing as long as medical or surgical attention is reasonably
necessary, the patient may make a claim to the patient’s compensation
fund through the board for all future medical care and related benefits
directly or indirectly made necessary by the health care provider’s
malpractice unless the patient refuses to allow them to be furnished.

D. Payments for medical care and related benefits shall be paid
by the patient’s compensation fund without regard to the five hundred
thousand dollar limitation imposed in R.S. 40:1299.42.

E. (1) The district court from which final judgment issues shall
have continuing jurisdiction in cases where medical care and related
benefits are determined to be needed by the patient.

Pursuant to Section A, and contrary to the LPCF’s assertions, the trial court was

correct in its inclusion of the quantification of future medical care and related benefits

in the judgment.

Noting La.R.S. 40:1299.43(A)’s requirement, the supreme court extensively

discussed the parameters of a trial court’s jurisdiction in cases arising under the

Medical Malpractice Act in Kelty, 633 So.2d 1210. The supreme court related the

unique structure of the Medical Malpractice Act, ultimately explaining that the trial

court’s jurisdiction in cases arising under the Act is limited and that jurisdiction

regarding future medical care rests, instead, with the LPCF. The court stated:

2

During the brief history of the future medical benefits program,
the responsibility for its administration has been vested in three different
agencies, but the basic characteristics of the program have remained the
same. First, the claim for such benefits is a special statutory creation
inherently different from a general tort law claim for a money judgment
for damages. In fact, the program is designed as a remedy, although
only a partial, carefully cost-effective one, to the harsh effects of recent
changes in medical malpractice tort law. A claimant must meet a special
definition of “need” to be entitled to benefits and may receive
recompense for actual necessary medical expenses only so long as that
need continues. Second, the statute authorizes a patient in need to file
her claim only with the agency vested with the authority to administer
the program. Section 1299.43C of the MMA expressly provides:

Once a judgment is entered in favor of a patient who is
found to be in need of future medical care and related
benefits or a settlement is reached between a patient and
the patient’s compensation fund in which the provision of
medical care and related benefits is agreed upon and
continuing as long as medical or surgical attention is
reasonably necessary, the patient may make a claim to the
patient’s compensation fund through the board for all
future medical care and related benefits directly or
indirectly made necessary by the health care provider’s
malpractice unless the patient refuses to allow them to be
furnished.

This feature of the statutory scheme alone clearly indicates that the
agency has exclusive jurisdiction of future medical and related care
claims, and this meaning becomes even more evident when other aspects
of the legislation are taken into consideration. Third, the same agency
that is granted the authority to receive and evaluate claims, and to pay,
settle or reject them, is also vested with full powers to assure the cost-
effectiveness of a claims adjustment and the fiscal soundness of the
PCF. The agency has the power to require a medical inspection of the
need of each claimant for medical care benefits every six months
without a court order and more often with a court order. La.R.S.
40:1299.43G. The agency may reduce the payment of claims pro rata
below actual cost of medical expenses if the agency determines that the
PCF would be exhausted by payment in full of all claims during any
semi-annual period. Id. 44A(7). The agency is authorized to apply for
and cause to be established appropriate surcharges to be imposed on
health care providers and to collect surcharges from self-insured
providers. Id. 44A(2).

In establishing the administrative program, the legislature gave
statutory jurisdiction to the responsible agency for the purpose of
granting, denying, or settling medical and related care services claims.
Along with this initial decision-making responsibility the legislature
gave clear authority to the agency to supervise the administration of

3

continuing claims. The statutory provisions contemplate that the agency
will develop expertise and experience in administering not only future
medical care claims but also the moneys from which they are to be paid.
The administering agency is required to develop specialized knowledge
and assume the responsibility of establishing, and applying for
appropriate surcharges to be imposed on health care providers and
collecting surcharges from self-insured providers. La.R.S.
40:1299.44A(2), (3), (4).

Finally, the statutory provisions referring to the courts clearly
indicate that they are not vested with original jurisdiction or decision
making responsibility over future medical care claims. The courts are
authorized to perform two limited functions: (i) certification of whether
a malpractice victim is a patient in need, i.e., whether the victim’s
damages consumed the cap limits without affording her compensation
for all actual medical expenses necessitated by the malpractice, La.R.S.
40:1299.43A; and (ii) random and ephemeral housekeeping matters,
viz., the court is granted a very limited continuing jurisdiction to award
attorney fees when the PCF fails to pay timely, id. 43E(2), and order
more frequent physical examinations of a patient, upon reasonable
cause. Id. 43G(5).

Given the minor, supporting role assigned to the courts, the
expertise expected of the agency, the confidence the legislature has
placed in the agency, and the active decision-making, administrative,
and supervisory roles the agency is required to play, permitting courts
throughout the state to conduct their own litigation involving future
medical care claims would conflict with and hinder the regulatory
scheme rather than supplement or promote its objectives. Indeed, the
legislative scheme would be absurd and unworkable if courts were
authorized to redetermine de novo reasonable, non-arbitrary decisions
made by the agency with respect to the initial disposition of claims, the
continuing need of patients for medical care benefits, the fiscal ability
of the PCF to pay claims in full, the percentage of pro rata reduction of
claim payments required to maintain the PCF’s fiscal stability, and the
level of surcharges necessary to maintain the PCF’s actuarial soundness.
Because all of these determinations are interrelated, the legislature
clearly intended to assign the original decision-making function with
respect to them to the expert administrative agency. Consequently, we
conclude that the legislature intended to eliminate all judicial power in
initial decision making or supervision over medical and related care
claims and to vest such exclusive jurisdiction in the agency legislatively
assigned to administer the PCF, subject only to court review of the
agency’s actions pursuant to well established principles of judicial
review.

Id. at 1217-19 (citations omitted). Thus, while La.R.S. 40:1299.43(A) requires a

determination as to the necessity and a quantification of future medical care and

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related benefits, the discussion in Kelty makes clear that the trial court lacks

jurisdiction to reduce findings as to quantum to a money judgment.

Although the majority indicates that the figures for future medical care and

related expenses will become executory only upon approval by the LPCF or upon

further order of the trial court, I disagree that the quantification will become

executory at any point in this case. Rather, as indicated in Hall v. Brookshire Bros,

Ltd., 02-2404 (La. 6/27/03), 848 So.2d 559, ftnt 10: “The purpose of quantifying

future medical expenses, as required by LSA-R.S. 40:1299.43(A)(1), is revealed in

the provisions that follow the statute. The amount of future medical expenses

awarded determines the method of payment of the judgment. See, LSA-R.S.

40:1299.43(A)(3),(4) and (5).” Given this statement, I disagree to the extent that the

majority opinion can be interpreted as indicating that the trial court’s quantification

of future medical care and related benefits has any effect beyond the determination

of the appropriate method of payment as this case is one in which payment is

controlled by La.R.S. 40:1299.43(A)(3).

Accrued Medical Expenses

Further, I respectfully disagree with the majority’s determination that the trial

court had jurisdiction to reduce to money judgment those future medical expenses

incurred prior to trial. In my opinion, this issue is controlled by the express wording

of La.R.S. 40:1299.43(B)(1) which, at the time of trial, provided:

“Future medical care and related benefits” for the purpose of this
Section means all reasonable medical, surgical, hospitalization, physical
rehabilitation, and custodial services and includes drugs, prosthetic
devices, and other similar materials reasonably necessary in the
provision of such services, after the date of injury.

(Emphasis added.) Reference to this provision, alone, indicates that the trial court

erred in including these incurred expenses in the money judgment for which the

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Louisiana Patients’ Compensation Fund was responsible. While 2004 La.Acts No.

181, § 1 amended the above definition of future medical care and related benefits

insofar as those benefits are incurred up to the time of the trial court’s ruling, Act 181

was not effective at the time of the ruling in this matter. It is my view that the

provision is substantive in nature and, absent contrary legislative expression, subject

to prospective application only. See Sawicki v. K/S Stavanger Prince, 01-0528 (La.

12/7/01), 802 So.2d 598. See also La.R.S. 1:2; La.Civ.Code art. 6.

In addition to Section B(1)’s inclusion of accrued medical expenses in the

definition of future medical care and related benefits, the Louisiana Supreme Court’s

statement in Kelty, 633 So.2d 1210, regarding a trial court’s limited jurisdiction under

the Medical Malpractice Act is again instructive. The supreme court plainly

delineated that jurisdiction, stating:

[T]he statutory provisions referring to the courts clearly indicate that
they are not vested with original jurisdiction or decision making
responsibility over future medical care claims. The courts are
authorized to perform two limited functions: (i) certification of whether
a malpractice victim is a patient in need, i.e., whether the victim’s
damages consumed the cap limits without affording her compensation
for all actual medical expenses necessitated by the malpractice, La.R.S.
40:1299.43A; and (ii) random and ephemeral housekeeping matters,
viz., the court is granted a very limited continuing jurisdiction to award
attorney fees when the PCF fails to pay timely, id. 43E(2), and order
more frequent physical examinations of a patient, upon reasonable
cause. Id. 43G(5).

Id. at 1218. I do not find that the reduction of accrued “future medical care and

related benefits” to the type of money judgment decreed by the majority falls within

either of these areas of jurisdiction.

Finally, I am aware of the classification of incurred medical expenses as

“‘future’ medical expenses that have already been incurred” in Hall, 848 So.2d at

576. However, in Hall, the supreme court focused on the issue before it, namely the

question of whether interest was due on past medical expenses awarded below. It

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does not appear that the appropriateness of reducing those incurred “future medical

expenses” to a money judgment was an issue raised in that case, nor when the case

was argued or considered on intermediate appeal. See Hall v. Brookshire Bros., 01-

1506 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010. Rather, the arguments and the

resulting discussion focused upon whether interest was to be assessed on those past

due expenses.

Absent more direct authority from the supreme court than its acceptance of an

uncontested judgment in Hall, I find it erroneous for the trial court to have strayed

from the plain terms of positive law embodied in La.R.S. 40:1299.43(B)(1) and the

supreme court’s discussion of the courts’ jurisdiction under the Medical Malpractice

Act in Kelty. Accordingly, I would reverse the trial court’s judgment insofar as it

included the accrued medical and related benefits in the money judgment. I would

amend the judgment to include these accrued expenses in the trial court’s

quantification of future medical care and related benefits.

As I find that the accrued expenses must be submitted to the LPCF for the

above-reasons, I do not reach the LPCF’s alternative contention that the figure

awarded for accrued expenses related to past attendant care is excessive.

Interest

I agree with the majority that the judgment should be amended to more fully

indicate that interest is to be paid on the $400,000 award for general damages.

However, I would further amend the judgment to remove indication that interest is

awarded on future medical care and related benefits which accrued prior to the time

of trial. Although this figure has been incurred and, thus, interest will be owed from

the date incurred, see Hall, 848 So.2d 559, I do not find that the judgment should

include an award for interest on this figure as those expenses have not yet been

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approved by LPCF. Again, unlike in Hall, the LPCF, in the present case, contests the

inclusion of future medical care and related benefits which have accrued in the money

judgment. As stated above, I find the inclusion of these expenses erroneous and

contrary to the dictates of La.R.S. 40:1299.43(B)(1). In my opinion, after this

element of future medical care and related benefits is submitted to the LPCF and

approved, as all claims for future medical care and related benefits must be, interest

will be recoverable from the LPCF from the date those expenses were incurred.

General Damages

As for the remaining issue, that regarding the quantum awarded in general

damages, I agree with the majority that an affirmation is required.

For these reasons, I concur in part, dissent in part.

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