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LeBlanc v. Dr. Richard Barry Louisiana Patient's Compensation Fund8/30/2000
APPEAL MAINTAINED.
Saunders, J. dissents and would grant the Motion to Dismiss based on untimeliness.
The plaintiff/appellee, Edward LeBlanc, seeks to dismiss the above captioned appeal as untimely. We disagree and maintain the appeal.
On November 4, 1997, Edward LeBlanc filed a medical malpractice action against Dr. Richard Barry. Plaintiff sought damages relating to Dr. Barry's medical treatment of Odessa LeBlanc, Edward LeBlanc's deceased spouse. Trial on the merits commenced on December 7, 1999, and judgment was rendered on February 11, 2000 in favor of the plaintiff against Dr. Barry in the amount of $1,029,719.35, plus legal interest from March 3, 1995. The judgment provides that Dr. Barry is not liable for any amount in excess of $100,000 and casts the Patient's Compensation Fund (PCF) in judgment for the balance of $919,719.35 plus legal interest and costs of expert fees. The PCF was not a named party to the suit. On February 15, 2000, the Fourteenth Judicial District Clerk of Court mailed Notice of Judgment to Mr. LeBlanc's attorney, John Hammons, and Dr. Barry's attorney, Russell T. Tritico, Sr. The clerk did not mail a Notice of Judgment to the PCF. On April 26, 2000, the plaintiff's attorney notified the PCF that the judgment was final and executory. Also on that date, plaintiff's attorney mailed Notice of Judgment to the State Treasurer demanding payment of the judgment. The PCF filed a motion for suspensive appeal on May 8, 2000 and obtained an order for suspensive appeal on the same date. The record was lodged with this court on July 14, 2000. The plaintiffs filed a motion to dismiss the appeal as untimely.
La.R.S. 40:1299.44 states in pertinent part as follows:
A(7)a
(7)(a) Claims from the patient's compensation fund exclusive of those provided for in > R.S. 40:1299.43 shall be computed at the time the claim becomes final.
(b) A final claim shall be paid within forty-five days of the board's receipt of a certified copy of the settlement, judgment, or arbitration award, unless the fund is exhausted and the proration provision contained in Subparagraph (7)(c) applies.
B. (1) The state treasurer shall issue a warrant in the amount of each claim submitted to him 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 R.S. 40:1299.44(B)(2)(d) or (e), 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:
(d) A certified copy of a judgment awarding medical care and related benefits rendered pursuant to > R.S. 40:1299.43.
(e) A voucher drawn by the board through the patient's compensation fund defense counsel pursuant to a judgment reciting that a patient is in need of future medical care and related benefits under the provisions of > R.S. 40:1299.43.
(6) Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.
La.Code Civ.P. art 1913 states as follows:
A. Notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all cases.
B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no ex
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