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Bennett v. Krupkin3/28/2002
e insurer fails to remit the appropriate surcharge, the Fund is authorized to assess a penalty and collect attorney's fees against the insurer or to pursue legal remedies against the insurer. LSA-R.S. 40:1299.44(A)(3)(a) & (b) and 40:1299.44(A)(4). There is simply no provision in the Act authorizing the Oversight Board to terminate or otherwise restrict the insured health care provider's qualification under the Act if an improper surcharge is collected by the insurer. Thus, any dispute over the actuarial computation of the surcharge or collection of the appropriate surcharge is to be resolved between the Fund and the insurer. See Brown v. St. Paul Fire & Marine Insurance Company, 31,777, pp. 2-3 (La. App. 2nd Cir. 3/31/99), 731 So. 2d 953, 954-955, writ denied, 99-1211 (La. 6/4/99), 744 So. 2d 634.
In the instant case, Dr. Krupkin purchased a policy of insurance from St. Paul, and St. Paul collected and remitted to the Fund the surcharge associated with that policy. Moreover, there has been a final determination that coverage under the St. Paul policy remained in effect through the time when the Bennetts filed the instant claim. Thus, the policy period and attendant PCF coverage, for which Dr. Krupkin paid, provided protection to him for a legally-governed period of time encompassing this claim. Any argument by the Oversight Board that the surcharge collected for that period of qualification was actuarially insufficient, because of the extension of the policy's term by operation of law, has absolutely no effect on Dr. Krupkin's qualification herein.
Accordingly, we find no error in the trial court's conclusion that Dr. Krupkin was a qualified health care provider under the Medical Malpractice Act with respect to the Bennetts' claim. Thus, the exception of prematurity was properly maintained.
CONCLUSION
For the above and foregoing reasons, the September 7, 1999 judgment of the trial court, maintaining Dr. Krupkin's exception of prematurity, is affirmed. Costs of this appeal in the amount of $1,201.48 are assessed against the Louisiana Patient's Compensation Fund Oversight Board.
AFFIRMED.
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