Opinion
2021 CA 1310
07-05-2022
Lionel GREEN v. PATIENT COMPENSATION FUND OVERSIGHT BOARD
David A. Woolridge, Jr., Brent Joseph Bourgeois, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Patient's Compensation Fund Oversight Board Henry B. King, Jr., Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Lionel Green
David A. Woolridge, Jr., Brent Joseph Bourgeois, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Patient's Compensation Fund Oversight Board
Henry B. King, Jr., Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Lionel Green
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
The appellant, the Louisiana Patient's Compensation Fund Oversight Board (the PCF), appeals the trial court's judgment granting the appellee's, Lionel Green's, petition for a writ of mandamus ordering the PCF to remove its declaration that Mr. Green's request for review was invalid and without effect. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings.
The PCF is a legislatively created entity that administers the Patient's Compensation Fund, which holds private monies in trust to compensate victims of medical malpractice and to protect qualified health care provider members who may be liable for damages caused by their malpractice. See La. R.S. 40:1299.44, which was re-designated as La. R.S. 40:1231.4 by 2015 H.C.R. No. 84 (eff. June 2, 2015); Brown v. Patient Compensation Fund Oversight Board, 2017-0318 (La. App. 1 Cir. 1/5/18), 241 So.3d 1167, 1169 n.1.
FACTS AND PROCEDURAL HISTORY
On December 2, 2020, the Louisiana Division of Administration received a medical malpractice claim letter from Mr. Green to invoke a medical review panel, naming Dr. Ira H. Thorla, Jr. as the defendant. In the letter, Mr. Green alleged that Dr. Thorla provided negligent medical care to him when he performed surgery to remove a cyst on the wrong side of his head. The medical review panel request was subsequently forwarded and received by the PCF on or about December 8, 2020. On December 10, 2020, the PCF sent a certified letter to Mr. Green's counsel using the address provided on Mr. Green's PCF request. In the certified letter, the PCF informed Mr. Green's counsel that in accordance with La. R.S. 40:1231.8(A)(1)(c), the PCF must receive the filing fee of $100.00 per PCF qualified defendant within forty-five days of the receipt of the PCF notice. The PCF notice was mailed to Mr. Green's counsel on December 15, 2020, and allegedly received by Mr. Green's counsel on December 16, 2020.
Louisiana Revised Statutes 40:1231.8(A)(1)(c) establishes the amount and time period within which a medical malpractice claimant must pay a filing fee with the PCF:
A claimant shall have forty-five days from the date of receipt by the claimant of the [PCF's] confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the [PCF] a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
On January 30, 2021, which was forty-five days from December 16, 2020, the PCF had not received the $100.00 filing fee from Mr. Green. On March 11, 2021, the PCF sent Mr. Green's counsel a certified letter notifying him that his panel request was rendered invalid and without effect because the $100.00 filing fee was not timely received by the PCF. On March 23, 2021, Mr. Green's counsel sent a letter to the PCF acknowledging that he received the letter rendering Mr. Green's claim invalid and without effect, but advised that he had not received the PCF notice. The letter included a check for $100.00 to the PCF. On April 12, 2021, the PCF sent Mr. Green's counsel a certified letter that returned his $100.00 check, pursuant to La. R.S. 40:1231.8(A)(6), and stated that delivery of the check was past the forty-five day deadline, which resulted in the invalidation.
Louisiana Revised Statutes 40:1231.8(A)(6) provides: "[i]n the event the [PCF] receives a filing fee that was not timely paid pursuant to Subparagraph (1)(c) of this Subsection, then the [PCF] shall return, or refund the amount of, the filing fee to the claimant within thirty days of the date the [PCF] receives the untimely filing fee."
On May 14, 2021, Mr. Green filed a petition for writ of mandamus naming the PCF as a defendant. In his petition, Mr. Green requested the trial court to order the PCF to remove its declaration that Mr. Green's request was invalid and without effect and further requested that the medical review panel request be reinstated. Mr. Green also requested that he be provided with the statutorily mandated notification by certified mail as required by La. R.S. 40:1231.8(A)(3).
The PCF filed an answer, generally denying all liability. On July 20, 2021, the trial court held a hearing on Mr. Green's mandamus action. The PCF admitted into evidence several exhibits, which included Mr. Green's medical review panel request, the certified mail letters from the PCF and Mr. Green's counsel, and several USPS trackings. After hearing arguments from the parties, the trial court granted Mr. Green's petition for a writ of mandamus. A judgment was filed on July 29, 2021, but was never signed by the trial court. The PCF filed an order for a suspensive appeal from the unsigned judgment that was signed by the trial court on September 27, 2021.
On February 2, 2022, Mr. Green filed a motion to dismiss the PCF's appeal for prematurity. Mr. Green alleged that a revised final judgment was signed on December 21, 2021, and that judgment was not made part of the record on appeal. The following day, the PCF filed a motion to supplement the appellate record with the December 21, 2021 judgment. On March 8, 2022, this court issued an order granting the PCF's motion for leave of court to supplement the appellate record with the December 21, 2021 judgment and the attendant notice of judgment issued the same date. On March 9, 2022, the record in this case was supplemented with the judgment and notice of judgment. We deny Mr. Green's motion to dismiss the appeal as premature.
In this case, the initial judgment did not contain the required certification indicating compliance with Rule 9.5 of the Louisiana District Court Rules whereas the December 21, 2021 judgment did. See Matter of Succession of Buhler, 2017-0049 (La. App. 1 Cir. 2/22/18), 243 So.3d 39, 45. The only other difference between the two judgments was that the initial judgment contained the language "for the reasons orally assigned" and "IT IS FURTHER ORDERED, ADJUDGED AND DECREED."
As appeals are favored, appellate courts should not be "overly technical" in the interpretation of the requirements See Saulny v. New Orleans Police Department, 2019-01366 (La. 11/12/19), 282 So.3d 210, 210 (per curiam ). Further, an appeal should not be dismissed unless the law clearly requires a dismissal, and an appeal is not to be dismissed for a mere technicality. Whitney Bank v. Rayford, 2021-0407 (La. App. 1 Cir. 4/5/22), 341 So.3d 741, ––––. To the extent that a motion for appeal is premature, any defect arising from a premature motion for appeal is cured once a final judgment has been signed. See Overmier v. Traylor, 475 So. 2d 1094, 1094-95 (La. 1985) (per curiam); Chauvin v. Chauvin, 2010-1055 (La. App. 1 Cir. 10/29/10), 49 So.3d 565, 568 n.1 ; see also La. C.C.P. arts. 1911, 1915, and 191; McKee v. McKee, 2020-1314 (La. App. 1 Cir. 6/16/21), 2021 WL 2451440 at *1, n.1 (unpublished), writ denied, 2021-00984 (La. 11/3/21), 326 So.3d 879.
APPLICABLE LAW
A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. Brown v. Patient Compensation Fund Oversight Board, 2017-0318 (La. App. 1 Cir. 1/5/18), 241 So.3d 1167, 1171 ; Franks v. Louisiana Patient's Compensation Fund Oversight Board, 2016-0765 (La. App. 1 Cir. 5/3/17), 220 So.3d 862, 866, writs denied, 2017-0868 (La. 9/29/17), 227 So.3d 294, and 2017-0877 (La. 9/29/17), 227 So.3d 294 ; see also La. C.C.P. arts. 3861 - 3863 and Berthelot v. Patients’ Compensation Fund Oversight Board, 2007-0112 (La. App. 1 Cir. 11/2/07), 977 So.2d 967, 973 n.6, writ denied, 2007-2328 (La. 2/1/08), 976 So.2d 720. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. Franks, 220 So.3d at 866 ; Keating v. Van Deventer, 2014-0157 (La. App. 1 Cir. 9/19/14), 153 So.3d 1200, 1205 n.6, writs denied, 2014-2147 (La. 1/9/15), 157 So.3d 598, 2014- 2181 (La. 1/9/15), 157 So.3d 599, and 2014-2188 (La. 1/9/15), 157 So.3d 1106.
All malpractice claims against healthcare providers qualified under the Medical Malpractice Act must be reviewed by a medical review panel prior to suit. See La. R.S. 40:1231.8(A)(1)(a) and (B)(1)(a)(i). The formation of the medical review panel is subject to a number of requirements, one being payment of a filing fee, or filing fees, depending on the construction of the relevant provisions. See La. R.S. 40:1231.8(A)(1)(c) and (g). A review of the statutory procedure for initiating a medical review panel proceeding is necessary to understand the calculation, notification, and payment of the proper filing fee in this case. Kirt v. Metzinger, 2019-1162 (La. 4/3/20), 341 So.3d 1211, reh'g denied, 2019-01162 (La. 7/9/20), 298 So.3d 168.
To initiate a panel proceeding, a claimant must file a written request, sometimes identified in Section 1231.8 as a "request for review of a malpractice claim," with the Division of Administration. See La. R.S. 40:1231.8(A)(1)(b) ; 40:1231.8(A)(2)(b)(i). After file-stamping the document, the Division must forward the request to the PCF within five days. See La. R.S. 40:1231.8(A)(2)(b)(ii).
Within fifteen days of receiving the request from the Division, the PCF is statutorily mandated to: (1) confirm to the claimant, by certified mail, the filing was received and whether the "named defendant or defendants have qualified under this Part"; and (2) inform the claimant of the "amount of the filing fee due and the time frame within which such fee is due," and that failure to timely pay the fee or obtain a waiver shall render the request for review of a malpractice claim invalid and without effect, even as to the suspension of prescription. See La. R.S. 40:1231.8(A)(3). The PCF must notify all defendants by certified mail of the filing and forward a copy of the proposed complaint to each of them. See La. R.S. 40:1231.8(A)(3)(c).
The PCF's duty to determine and confirm the qualified status of each defendant is critical because the claimant must pay "a filing fee in the amount of one hundred dollars per named defendant qualified under this Part." La. R.S. 40:1231.8(A)(1)(c). When a request is filed, the claimant will likely not know which, if any, of the named defendants is qualified, and the amount of money, if any, that is due to the PCF. Consequently, the PCF must provide that information to the claimant in the written confirmation of receipt. See La. R.S. 40:1231.8(A)(3).
The PCF's confirmation of receipt letter triggers a forty-five day period to pay the filing fee, as set forth in Subparagraph (c) of La. R.S. 40:1231.8(A)(1) :
A claimant shall have forty-five days from the date of receipt by the claimant of the [PCF's] confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the [PCF] a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
If the filing fee is timely paid, filing the request "shall be complete." La. R.S. 40:1231.8(A)(2)(b)(ii). If the filing fee is not timely paid or waived, La. R.S. 40:1231.8(A)(1)(e) provides:
Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified forty-five day time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
The PCF must notify the claimant and all named defendants by certified mail whether the filing fee was or was not timely received. See La. R.S. 40:1231.8(A)(4)(a) and (d).
DISCUSSION
The PCF assigns as error that the trial court erred in not finding that Mr. Green's malpractice claim was invalid and without effect as mandated by La. R.S. 40:1231.8(A)(1)(c) and (e). To resolve the issue presented in this case, we must interpret provisions of La. R.S. 40:1231.8, et seq. The interpretation of a statute presents a question of law subject to de novo review. Kirt, 341 So.3d at ––––, 2020 WL 1671571.
The PCF did not request any order in its answer to the mandamus suit filed by Mr. Green but only denied liability in its answer.
The determinative issue in this case is whether Mr. Green may have a claim against the PCF using a writ of mandamus to determine whether a medical malpractice claim is invalid and without effect in accordance with La. R.S. 40:1231.8(A)(1)(c) and (e). The PCF's duties are limited to the following: (1) confirming receipt of the claim and the qualifications of the health care providers, (2) giving notice of filing fees within specified time frames, (3) notifying healthcare providers that a claim has been filed and that a request for the formation of a medical review panel has been made, (4) forwarding a copy of the claim to the healthcare provider, and (5) notifying all parties when the required filing fee is received by the PCF and whether the claimant has timely or not timely paid the required filing fee. Franks, 220 So.3d at 868.
The PCF's duty does not encompass making legal determinations as to whether requests for review are invalid and without effect. The duties of the PCF are clearly mandatory duties of a clerical nature to facilitate the panel process. The adversarial parties in the panel proceedings are the claimant and the qualified health care provider, not the PCF. The PCF is not allowed to make legal determinations as to whether a claim is invalid and without effect. See Children's Hospital v. Schnauder, 2019-0363 (La. App. 1 Cir. 12/21/20), 316 So.3d 1115, 1123 (Holdridge, J. concurring); Golden v. Patient's Compensation Fund Oversight Board, 40,801 (La. App. 2 Cir. 3/8/06), 924 So.2d 459, 464, writ denied, 2006-0837 (La. 6/2/06), 929 So.2d 1261. In this case, there is no legal basis for the trial court to order the PCF to remove its declaration that Mr. Green's request for review was invalid and without effect and to reinstate his request for review. A mandamus proceeding is only to be used to direct a public officer to perform a ministerial duty where there is a clear and specific right. It never issues in doubtful cases. See State ex. rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665, 669 (1950). While La. R.S. 40:1231.8(A)(4)(e) provides that if a filing fee is not timely paid, the request for review of a malpractice claim shall be rendered "invalid and without effect," there is no statutory authority for the PCF to remove declarations or to reinstate requests for review. While the court may issue such orders in response to a pleading requesting a declaratory judgment, mandatory injunction, or rule to show cause, such orders are improper in a mandamus proceeding since the PCF does not have a statutory duty to take such action. In any action for a declaratory judgment, mandatory injunction, or rule to show cause, Dr. Thorla, as the qualified health care provider, should be made a defendant, and the court in an adversarial proceeding may decide whether the plaintiff timely paid his filing fee and whether his request for review of his malpractice claim was valid and suspended the prescriptive period. See Golden, 924 So.2d at 464.
The record reveals that the PCF did not timely receive the filing fee payment of $100.00 from Mr. Green as mandated by La. R.S. 40:1231.8(A)(1)(c). Subsequently, the PCF sent a certified letter to Mr. Green's counsel on March 11, 2021, informing him that the filing fee was not timely paid pursuant to La. R.S. 40:1231.8(A)(1)(c) and that his request for review was considered invalid and without effect as provided in La. R.S. 40:1231.8(A)(1)(e). See Hollins v. Glenwood Regional Medical Center, 2008-2593 (La. App. 1 Cir. 6/12/09), 2009 WL 2486941 at * 1 (unpublished) (finding in a summary disposition opinion that mandamus relief was not warranted where, even giving claimant "every benefit of the doubt" with regard to the filing fee due, claimant failed to timely pay the filing fee due, and therefore his request for review of his medical malpractice claim was invalid and without effect.) The PCF had no further duties to perform in this case and did not overstep its statutory authority as mandated by La. R.S. 40:1231.8, et seq. See Morris v. Patient's Compensation Fund Oversight Board, 2007-2468 (La. App. 1 Cir. 5/28/08), 991 So.2d 551, 555. The PCF's actions were in accordance with the statutory language which required that it send the letter to the plaintiff with the language that his request was invalid and without effect.
The evidence submitted by the PCF reveals that Mr. Green's counsel timely received by certified mail the PCF notice to begin the running of the forty-five day period as mandated by La. R.S. 40:1231.8(A)(1)(c).
Accordingly, after a de novo review, we find that Mr. Green is not entitled to a writ of mandamus compelling the PCF to take further action in this case. The issues presented in this case are not issues as to the ministerial duty which must be performed by the PCF, but are factual and legal issues to be decided between the adversarial parties. Whether or not Mr. Green timely paid his required filing fee and whether his request is invalid and without effect are issues to be decided in an adversarial proceeding instituted by Mr. Green with Dr. Thorla as a party. We reverse the mandamus judgment of the trial court that found the PCF should remove its declaration that Mr. Green's request for review was invalid and without effect and ordered his request for review be reinstated. Accordingly, we remand this case to the trial court for further proceedings consistent with this opinion.
CONCLUSION
For the foregoing reasons, we reverse the December 21, 2021 judgment of the trial court and remand this matter to the trial court for proceedings consistent herewith. All costs of this appeal are assessed to the appellee, Lionel Green.