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O'Bryan v. Louisiana Patient's Compensation Fund Oversight Board11/8/2002
Guidry, J. Concurs.
Pettigrew, J. Concurrs.
Fitszsimmons, J. Dissents in part and assigns reasons.
Dr. E. Michael O'Bryan appeals an adverse judgment entered pursuant to a petition for declaratory judgment where the trial court entered judgment in favor of the Louisiana Patients' Compensation Fund Oversight Board (Oversight Board) on all issues. The trial court declared that several of the Oversight Board's regulations addressing malpractice liability insurance coverage were valid and enforceable. For reasons that follow, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Dr. Michael O'Bryan filed an action for declaratory judgment against the Oversight Board in August 1997 claiming that the Oversight Board had promulgated rules in direct contravention of statutory authority to his detriment. He asked the court to resolve several issues surrounding the requirement that he post financial security to be insured under the Louisiana Patients' Compensation Fund ("PCF"). These issues included the type of security required and the type of insurance coverage, claims made or occurrence, the Patients' Compensation Board is required to offer.
On November 13, 2000 the trial court entered judgment in favor of the Oversight Board. On appeal this court noted that the judgment did not specifically address the issues raised in the declaratory judgment action. On April 8, 2002 we ordered the parties to confect a new judgment in proper form to present to the trial court, which they did. This judgment was signed on April 10, 2002, and the record was supplemented with it. The amended judgment declares: (1) that self-insured financial devices mandated by LSAR.S. 40:1299.42A(1) would not be proof of financial responsibility for claims that arose before a health care provider became self-insured; (2) that the Oversight Board had authority to require a health care provider to purchase a tail or extended reporting endorsement from his previous malpractice insurance carrier to avoid potential gaps in Patients' Compensation Fund coverage; (3) that self-insured health care providers do not have the right to purchase claims-made coverage from the PCF; (4) that the Oversight Board has authority to charge a PCF tail surcharge to health care providers who had previously purchased claims-made coverage from the PCF and who elect to purchase self-insured coverage; and (5) that self-insured health care providers who submit proof of financial responsibility as mandated by LSA-R.S. 40:1299.42A(1) should not be afforded PCF coverage for acts of medical malpractice alleged to have been committed during the previous claims-made period(s) but which claims are filed after such proof of financial security is deposited with the Oversight Board.
Dr. O'Bryan appealed assigning six assignments of error:
1. The trial judge erred in finding that financial security for a self insured as required in LSA-R.S. 40:1299.41A(1) and 40:1299.42E is not available to be proof of financial security for claims arising prior to the filing of the self insured financial security the only test appropriate being that the deposited financial security be available to pay the claims in question;
2. The trial judge erred in finding that the PCF Oversight Board could force a health care provider to purchase a tail from his previous malpractice carrier in order to satisfy proof of responsibility;
3. The trial judge erred in finding that self-insured health care providers could only purchase occurrence coverage from the PCF;
4. The trial judge erred in finding that the PCF could require health care providers who were alrea
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