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Ceasar v. Barry11/2/2000
GREMILLION, J., DISSENTS WITH WRITTEN REASONS.
SULLIVAN, J., DISSENTS FOR REASONS ASSIGNED BY GREMILLION, J.
AFFIRMED.
DECUIR, Judge.
This appeal raises the question of whether actual receipt of $100,000 is necessary to trigger application of the statutory admission of liability in the medical malpractice scheme.
Adam and Elvia Ceasar filed suit against Dr. Richard Barry, his insurer, Physicians National Risk Retention Group (PNRRG), and Lake Charles Memorial Hospital for alleged malpractice in the prenatal care provided to Elvia and in the delivery and birth of their minor son, Adam Ceasar, Jr. During the course of the litigation, the plaintiffs and PNRRG, which is in receivership, entered into a settlement agreement for $100,000; the agreement was approved by the bankruptcy court. The district court also approved the settlement and found that pursuant to La.R.S. 40:1299.44, liability was admitted and established, thereby precluding the Louisiana Patients' Compensation Fund from contesting that issue in a subsequent proceeding for damages in excess of $100,000. The Fund appeals that judgment, arguing that because of the insurer's bankruptcy, the plaintiffs are unlikely to receive the full amount of the settlement, and the provisions of La.R.S. 40:1299.44 are, therefore, not met.
The facts giving rise to this suit are not at issue. Rather, the question before the court is what effect a bankruptcy court's pro rata distribution of assets has on a medical malpractice settlement. La.R.S. 40:1299.44(C)(5) provides in pertinent part:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
The settlement documents in the record before us evidence an agreement by the Ceasars to accept $100,000 from PNRRG in exchange for releasing Dr. Barry from liability. The documents declare the bankruptcy status of PNRRG and contain an acknowledgment by all parties that the Ceasars may not receive the full $100,000 settlement. In fact, it is estimated that they will receive perhaps 30% of that amount:
owever, due to said insurer being in liquidation, the undersigned acknowledge that they may receive only their pro rata distributions as approved by the court having jurisdiction over the liquidation, which may be considerably less than the policy limits, which are being tendered, said distribution is estimated at this time to be about 30% per claimant (said percentage may increase or decrease, depending upon funds available in the receivership proceeding). . . .
When the Fund opposed the settlement between the Ceasars and PNRRG, it argued that Dr. Barry did not commit malpractice and that the actual settlement amount did not equal the $100,000 statutory threshold necessary to trigger an admission of liability. Following a hearing on the petition for approval, the trial court partially approved the settlement, specifically finding that "when a plaintiff is forced to expect less than a $100,000 payment on a settlement agreement of that amount because the insurer is in receivership, a settlement may be approved and the jurisdiction of [the Fund] `may be invoked' as to damages only." However, the trial court found that the liability of the Fund relative to excess damages had not been triggered due to an absence of an admission of liability on the part of Dr. Barry.
Dr. Barry subseque
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