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Bennett v. Krupkin3/28/2002
This medical malpractice action is before us on remand from the Supreme Court, with instructions for this court to review the propriety of the trial court's judgment maintaining the exception of prematurity filed by Dr. Robert Krupkin. In maintaining the exception of prematurity, the trial court dismissed plaintiffs' claims against Dr. Krupkin without prejudice, on the basis that he was a qualified health care provider, and, accordingly, plaintiffs were required to first present their claim to a medical review panel. The Louisiana's Patient's Compensation Fund Oversight Board (the Oversight Board), intervenor in this matter, challenges this ruling. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 25, 1996, Elena Ledo Bennett was diagnosed with stage IV inoperable breast cancer. On April 17, 1997, less than six months later, Elena and her husband, Micah Keith Bennett, brought suit against Dr. Robert Krupkin and his insurer, St. Paul Fire & Marine Insurance Company (St. Paul), for an alleged failure to properly diagnose Elena's breast cancer. Dr. Krupkin filed an exception of prematurity, contending that he was a qualified health care provider under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. and that, as such, plaintiffs were required to first present their claim to a medical review panel. See LSA-R.S. 40:1299.47.
Thereafter, the Oversight Board filed a petition of intervention, seeking a determination of whether Dr. Krupkin was a qualified health care provider and, accordingly, whether he was enrolled as a member of the Patient's Compensation Fund (PCF) pursuant to the Medical Malpractice Act. In support of its claim that Dr. Krupkin was not a qualified health care provider with respect to the Bennetts' claim, the Oversight Board contended that, while Dr. Krupkin was covered by an underlying policy of medical malpractice insurance and had paid the applicable surcharge as of the date of the alleged malpractice, he had no underlying policy of insurance as of the date this claim was filed. Accordingly, the Oversight Board averred that Dr. Krupkin was not qualified for this claim. Later, the Oversight Board also asserted that Dr. Krupkin was not a qualified health care provider because, although he had paid the appropriate surcharge to the PCF for the period encompassing the date of the alleged malpractice, he had failed to pay a surcharge to the PCF for the period encompassing the date this claim was filed, as it contended was required by LSA-R.S. 40:1299.42(A).
St. Paul then filed a motion for summary judgment, contending that it did not provide coverage to Dr. Krupkin for this claim. St. Paul asserted that Dr. Krupkin had not renewed his "claims-made" policy, which lapsed on January 15, 1997, and that he also failed to purchase an optional reporting endorsement to extend that coverage. Thus, it contended that there was no continuing coverage as of the date the Bennetts filed their initial complaint on March 20, 1997.
The Bennetts filed a cross-motion for summary judgment, claiming that the St. Paul policy clearly provided coverage, under Hedgepeth v. Guerin, 96-1044 (La. App. 1st Cir. 3/27/97), 691 So. 2d 1355, writ denied, 97-1377 (La. 9/26/97), 701 So. 2d 983, wherein this court held that a provision of a claims-made policy requiring that a claim be made within the policy period is without effect if it reduces the prescriptive period against the insurer to less than one year, in violation of LSA-R.S. 22:629.
The Oversight Board also filed a motion for summary judgment, seeking a determination that Dr. Krupkin was not a qualified health care provider under the Medical Malpractice
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