Tina Lynette Watkins, Indiv. v. Dr. Richard Barry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-858

TINA LYNETTE WATKINS

VERSUS

DR. RICHARD BARRY

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

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED.

R. Ray Orrill, Jr.
Leslie A. Cordell
W. Christopher Beary
Orrill, Cordell & Beary, L.L.C.
412 West University Avenue, Suite 206
Lafayette, LA 70506
(337) 237-8200
Counsel for Plaintiff/Appellee:
Tina Lynette Watkins

Michael Keith Prudhomme
Lundy & Davis
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
Counsel for Intervenor/Appellant:
Louisiana Patients’ Compensation Fund

Milo Nickel, Jr.
Nadia de la Houssaye
David B. Gooch
The Dill Firm, A.P.L.C.
P.O. Box 3324
Lafayette, LA 70502-3324
Counsel for Intervenor/Appellant:
Louisiana Patients’ Compensation Fund

DECUIR, Judge.

The Louisiana Patients’ Compensation Fund pursued an appeal of certain post-

judgment rulings in this medical malpractice case. Finding no merit to the position

advocated by the PCF, we affirm the judgment rendered in favor of the plaintiff, Tina

Lynette Watkins.

In 1990, Watkins gave birth to a son, Dustin P. Watkins. Shortly after his birth,

doctors determined the child had suffered a stroke in utero, which caused serious and

permanent debilitating injuries. The plaintiff asserted a medical malpractice claim

against the treating obstetrician, Dr. Richard J. Barry, and Lake Charles Memorial

Hospital. After trial on the merits, judgment was rendered against Dr. Barry and the

PCF on December 8, 2003, for the maximum amount of medical malpractice

damages, $500,000.00, plus accrued medical and other expenses in the amount of

$437,193.08. Future medical and custodial care expenses were also awarded and, in

accordance with La.R.S. 40:1299.43(A)(2), were specifically itemized and quantified

at over $6,000,000.00, including custodial care for twelve hours a day until Dustin’s

eighteenth birthday and twenty-four hour a day for the remainder of his life. Dr.

Barry paid his portion of the judgment. On appeal by the PCF, the judgment was

affirmed as amended so as to clarify the computation of judicial interest, and

supervisory writs were denied by the supreme court. See Watkins v. Lake Charles

Mem’l Hosp., 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-0145

(La. 4/8/05), 898 So.2d 1279.

Immediately after the judgment became final, the plaintiff made a demand for

payment. In June of 2005, the PCF paid a portion of the judgment; the payment

included general damages as well as accrued medical and custodial care expenses

incurred up to November 19, 2003, the date of trial. The following month, the

plaintiff again made demand for payment of expenses incurred since the date of trial.

The PCF notified the plaintiff that she would have to forward a signed W-9 taxpayer

identification form and notes reflecting the hours worked and duties performed by the

custodial care provider. The plaintiff responded with a W-9 form in the name of the

Dustin P. Watkins Special Needs Trust and an affidavit stating that Dustin is still

alive and that his disabilities have not diminished since the date of trial. The plaintiff

requested that future custodial care payments be made to the Special Needs Trust, and

she asserted that a record of the hours and duties of the custodial care provider was

not required by law or by the judgment rendered in her favor.

Six weeks later, in September of 2005, the plaintiff filed the instant rule

alleging the PCF had arbitrarily refused to pay custodial care expenses. She also

requested an order that further payments be made to the Special Needs Trust. The

trial court ruled in the plaintiff’s favor. The PCF’s numerous exceptions were

overruled, and it was ordered to make quarterly advanced payments of custodial care

expenses to the trust, at the hourly rate specified in the original 2003 judgment, upon

receipt of certification that there has been no change in Dustin’s condition in the

previous thirty days.

In this appeal, the PCF has presented three assignments of error:

1. The trial court erred in ordering the PCF to pay future medical care

payments prior to the service being provided.

2. The trial court erred by holding that a plaintiff who submits a claim for

reimbursement of future medicals pursuant to La.R.S. 40:1299.43 need

not provide any evidence that the services were actually rendered.

3. The trial court erred in ordering the PCF to pay custodial care payments

to a Special Needs Trust instead of the actual care provider.

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After due consideration of the provisions of the Medical Malpractice Act,

La.R.S. 40:1299.41 et seq., and relevant jurisprudence applicable to this case, we find

no merit to the arguments advanced by the PCF and affirm the ruling of the trial

court.

By requiring the plaintiff to submit verification of custodial care expenses, the

PCF ignores the mandate of the 2003 judgment. The judgment established both the

need and amount of future expenses. While the judgment is not made executory until

a claim has been submitted to the PCF, the PCF, in administering the claim, does not

have authority to alter the terms of the final judgment in the plaintiff’s favor.

Disputes between the plaintiff and the PCF are to be resolved in the district court

from which the original judgment issued. La.R.S. 40:1299.43(E)(1). In fact, in a

dispute between the PCF and a claimant over the validity of expenses, the PCF has

the burden of proof. See Bartee v. Children’s Clinic of S.W. La., 05-583 (La.App. 3

Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La. 3/24/06), 925 So.2d 1230.

The PCF’s obligation to pay future medical expenses is set forth in La.R.S.

40:1299.43(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 that will be
incurred after the date of the response to the special interrogatory by the
jury or the court’s finding or a settlement is reached between a patient
and the patient’s compensation fund in which the provision of medical
care and related benefits that will be incurred after the date of settlement
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.

In an effort to enforce the PCF’s statutory obligation to the plaintiff, the trial

court fashioned a plan for the quarterly submission of verified claims, allowing for

timely payment by the PCF and no out-of-pocket costs to the plaintiff.

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The PCF has refused to implement the trial court’s order and attempts to

quibble over the word “incurred.” The PCF contends that medical and custodial care

expenses are payable to a plaintiff only after the service has been provided, a bill has

been received by the plaintiff and submitted to the PCF, and the PCF has reviewed

it within thirty days of receipt. By contrast, the trial court ordered the PCF to make

prospective payments for custodial care at the beginning of each quarter in which

custodial care would be required. In other words, the court required the PCF to pay

up front for care that would be needed for the next ninety days. This is no different

than purchasing a movie ticket prior to walking into the theater. Quite simply, we

find the effects of the PCF’s administration, i.e., custodial care workers must wait

thirty days to be paid, or catastrophically injured patients must pay out of pocket for

custodial care, only to recoup it months later from the PCF, to be unconscionable.

The trial court’s remedy of a quarterly payment plan upon certification by the plaintiff

that the need for care remains, is a practical solution to what can be an administrative

nightmare.

In an effort to cast suspicion on the intentions of the plaintiff, the PCF also

argues that because the plaintiff is providing the custodial care to her son personally,

she is attempting to circumvent tax and Medicaid laws by seeking payment to the

Special Needs Trust. This argument is baseless. Federal law provides for the

establishment of a special needs trust to provide funding for the care of disabled

persons in addition to Medicaid or Social Security disability benefits for which the

person may be eligible. 42 U.S.C. § 1396. Payments by the PCF or any private

insurer or other entity to such a trust does not constitute participation in a fraud.

Nevertheless, the PCF is not without recourse in the event that abuse occurs or

is suspected. Section 1299.43(E)(1) provides that “the district court from which final

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judgment issues shall have continuing jurisdiction in cases where medical care and

related benefits are determined to be needed by the patient.” Section 1299.43(G)

allows the PCF to require the plaintiff to submit to periodic examinations by the

physician of its choice. These remedies are in addition to the right to appeal, which

the PCF exercised fully in this case to no avail. We know of no other defendant so

fortunate as to have post-judgment rights of review, as well as the lifetime of the

plaintiff, to pay damages, as the PCF.

Regarding the PCF’s contention that the trial court erred in requiring it to make

payments to the Dustin P. Watkins Special Needs Trust, we find no merit to this

argument.

Finding no manifest error in the ruling of the trial court, we affirm. All costs

of this appeal are assessed to the PCF.

AFFIRMED.

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