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LeBlanc v. Dr. Richard Barry Louisiana Patient's Compensation Fund8/30/2000
alpractice suit. La.Code Civ.P. art. 2082 states that an appeal is the exercise of a right of a party to have a judgment of a trial court revised, modified, set aside or reversed by an appellate court. A suspensive appeal suspends the effect or the execution of a final judgment but a devolutive appeal does not. La.Code Civ.P. arts. 2087, 2123, 2124.
After a final judgment was rendered between the claimant and the health care provider, the commissioner and the fund, considering the judgment excessive, intervened and appealed that issue. By appealing, the commissioner acknowledged his awareness that the judgment was final. Upon receipt of a final judgment, La.R.S. 40:1299.44(B)(2)(a) directs the commissioner to submit a voucher to the state treasurer who shall then issue a warrant in the amount of the claim against the fund. The commissioner could have suspended the performance of his duties by taking a suspensive appeal from the final judgment. Instead, he chose to appeal devolutively. Under the circumstances, the claimant had the right to enforce the provisions of La.R.S. 40:1299.44(B)(2)(a).
The jurisprudence is clear that the Patient's Compensation Fund has an interest in the malpractice claim during the appellate process. However, the Louisiana Medical Malpractice Act does not contain a provision which requires notice of judgment to be sent by the clerk's office to the Patient's Compensation Fund. However, the statute does require a certified copy of the settlement judgment to be served on the board. In the present case the PCF did not receive Notice of Judgment from the clerk's office. The first notice that the PCF received of the judgment was by letter from the plaintiff's attorney on April 26, 2000.
The plaintiff argues that the judgment became final after the normal appeal delays ran from the sending of the Notice of Judgment to the parties, and that the PCF untimely filed their motion for an appeal. We disagree.
The statute and jurisprudence clearly contemplate that the PCF has an interest in the appellate process. See R.S. 40:1299.44(c)(6). In order for this interest to be meaningful, the PCF must receive notice of the judgment to trigger their appeal delays. In the present case the PCF did not receive Notice of Judgment by the clerk's office, and did not receive notice until the plaintiff's counsel sent the certified copy of the judgment pursuant to R.S. 40:1299.44(B)(7)(b) on April 26, 2000. Within two weeks the PCF obtained a motion and order for suspensive appeal. We find under these circumstances the motion for suspensive appeal was filed timely. The appeal is therefore maintained.
APPEAL MAINTAINED.
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