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Taylor v. Clement12/4/2002
d suffering of SHARON TAYLOR and CHARLES RAY TAYLOR, JR. who have suffered much anguish not only during the twenty-four (24) days of the life of their child visiting him frequently in the hospital and subsequent problems in their relationship and marriage which occurred as a result of the grief, the Court feels each parent is entitled to an award of $250,000.00.
The award will be reduced in accordance with the "cap limitations" on medical malpractice cases a total of $500,000.00 plus interest and costs from the date the claim was filed with the Louisiana Compensation Fund, together with expert witness fees to be fixed upon presentation of the appropriate motion to the Court. (Emphasis in original).
After a thorough review of the entire record, we find that the trial court did not abuse its great discretion in the assessment of damages.
Frivolous Appeal
The Taylors answered the PCF's appeal seeking attorney fees and the payment of costs for defense of a frivolous appeal pursuant to La.Code Civ.P. art. 2164. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Sys. Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98); 728 So.2d 398, writ denied, 98-2701 (La.12/18/98); 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Id. 728 So.2d at 405. However, an appeal is not automatically deemed frivolous simply because it lacks merit. Broussard v. Union Pacific Res. Co., 00-1079 (La.App. 3 Cir. 1/31/01); 778 So.2d 1199, writ denied, 01-0589 (La. 4/27/01); 791 So.2d 118, citing Hershell Corp. v. Fireman's Fund Ins. Co., 98-1352 (La.App. 3 Cir. 6/2/99); 743 So.2d 698, writ denied, 99-1923 (La. 9/17/99); 747 So.2d 568. While the issue of Dr. Clement's status as an enrolled QHCP advanced by the PCF as an issue for review may be substantively tenuous, there is no evidence that the appeal was taken for delay or that counsel was insincere. To the contrary, as evidenced by the foregoing, this case contains novel legal questions concerning the status of self-insured healthcare providers who, for whatever reason, do not replenish their deposits with the PCF upon demand after the deposit is seized pursuant to La.R.S. 40:1299.42(E)(1), and whose enrollment is terminated after judgment in favor of plaintiffs is obtained.
IV.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants, Dr. Richard Clement and the Louisiana Patient's Compensation Fund.
AFFIRMED.
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