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Hanks v. Seale6/17/2005
n Koslowski, 576 So.2d 470 (La. 1991), wherein we held, apparently relying on the provisions of former La. R.S. 40:1299.44(C), that a post-judgment settlement prevented the Fund from contesting liability on appeal. In Koslowski, the plaintiff suffered permanent nerve damage and facial dysesthesia as a result of a substandard root canal. After a trial on the merits, a jury awarded Ms. Koslowski $250,000.00 for her injuries suffered as a result of her dentist's malpractice. Shortly after the rendition of judgment, Ms. Koslowski executed a release of the dentist, his dental clinic, and the two defendant insurance companies for the stated consideration of $100,000.00, reserving her rights for the excess judgment against the Fund. While the release acknowledged receipt of $100,000 "or its equivalent," Ms. Koslowski was only paid $93,500.00. The insurer settled for this lesser amount by arguing that the costs of the jury and the medical review panel should be deducted from the plaintiff's recovery. Id. at 473. The Fund appealed, contesting both liability and damages.
After granting certiorari, this court was faced with two issues: (1) whether there was a settlement for $100,000 on behalf of the health care provider; and (2) if so, whether the $100,000 settlement after trial prevented the Fund from contesting liability on appeal. Id. First, we concluded that " llowing a small discount for prompt payment does not alter the fact that the insurer of the health care provider settled the claim against its insured as required by the statute." Id. Next, we determined that " he fund cannot contest liability when there is a binding settlement for $100,000 by the health care provider, either before or after trial." Id. at 474.
The holding in Koslowski that the fund cannot contest liability when there is a post-trial settlement for $100,000 does not apply to this case, however, because the facts in Koslowski vary greatly from the facts at issue in this case. In Koslowski, the plaintiff executed a release of the qualified health care provider and his insurer. More importantly, Ms. Koslowski settled for less than the full amount to which she was entitled pursuant to the judgment in her favor. In the instant case, the qualified health care providers elected not to appeal the judgment against them and instead tendered full payment in satisfaction of the judgment. The record contains no indication that a release was executed. Furthermore, each physician paid plaintiff at least $100,000, so there was no settlement varying the amounts awarded by the judgment. Because our decision in Koslowski is inapplicable to the instant situation, we need not review our analysis in that case at this time.
The above finding that La. R.S. 40:1299.44(C)(5)(e) does not apply to establish the liability of the health care providers, however, does not end our inquiry. We must still determine, without the benefit of subsection (C)(5)(e) or our previous decision in Koslowski, whether the Fund is entitled to contest the jury's finding of liability on the parts of the qualified health care providers when the physicians have satisfied the judgment against them by each paying the statutory maximum of $100,000.
This court has long recognized that a suit brought under the MMA is against the health care provider only and the Fund is not a party defendant against whom the action can be brought. Bonano v. Jefferson Parish Hosp. Serv. Dist. No. 2, 95-2799, p. 1 (La. 1/26/96), 666 So.2d 653, 653 (per curiam); Thomas v. Insurance Corp. Of America, 93-1856, p. 4 (La. 2/28/94), 633 So.2d 136, 139; Stuka v. Fleming, 561 So.2d 1371, 1374 (La. 1990); Felix v. St. Paul Fire & Marine Ins. Co., 477 So.2d 676, 680 (La. 1985); Williams
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