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Hanks v. Seale6/17/2005
v. Kushner, 449 So.2d 455, 458 (La. 1984). We have also previously reasoned that when the Fund is defending an action for excess damages after a plaintiff has settled with a health care provider, it is in the nature of a statutory intervenor since it is a third person who has an interest in the proceedings between the plaintiff and the health care provider due to the fact that any damages in excess of $100,000 are payable from the Fund. Stuka, 561 So.2d at 1374; Felix, 477 So.2d at 680-81; Williams, 449 So.2d at 458 n.16. This reasoning has been extended to appeals from judgments following a trial on the merits:
Similarly, after a judgment is rendered in a suit between the claimant the health care provider awarding damages against the health care provider in excess of one hundred thousand dollars, the commissioner and the fund have an interest in the action for the purpose of appealing the excess judgment against the fund. La. Code Civ. P. arts. 1091 and 2086. Accordingly, the trial judge was correct in granting the intervention of the commissioner and the fund for the purpose of appealing the excess judgment.
Felix, 477 So.2d at 681.
These principles lead to the conclusion that the MMA "contemplates that the issue of liability is generally to be determined between the malpractice victim and the health care provider, either by settlement or by trial, and that the Fund is primarily concerned with the issue of the amount of damages." Stuka, 561 So.2d at 1374. Thus, liability is generally an issue to be determined between the claimant and the health care provider, while the Fund has an interest in the issue of excess damages.
The validity of the statement that the claimant and the health care provider determine the issue of liability and the Fund is interested in the issue of excess damages is supported by La. R.S. 40:1299.44(C)(6), which, as previously noted, applies when the health care provider or his insurer has agreed to settle its liability and plaintiff is demanding an amount in excess thereof from the Fund for a complete and final release. That subsection provides:
Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.
Thus, the settlement itself, which is between the health care provider and the plaintiff, cannot be appealed, but the amount of damages assessed by the court, which can include excess damages to be paid by the Fund, may be appealed.
We have also recognized that the Fund has standing to appeal a district court's judgment granting a health care provider's exception of prematurity when there is a question as to whether the health care provider is a qualified health care provider under the MMA. Bennett v. Krupkin, 01-0209 (La. 10/16/01), 798 So.2d 940. The Bennett decision was based on several provisions of the MMA that give the Patient's Compensation Fund Oversight Board the responsibility and authority for the Fund's management and defense. Specifically, we noted that the version of La. R.S. 40:1299.44(D)(2)(b)(x) in effect at the time expressly granted the Board the authority to:
Defend the fund from all claims due wholly or in part to the negligence or liability of a non-covered health care provider or a product manufacturer, or both, regardless of whether a covered health care provider has settled or paid its statutory maximum, or has been adjudged liable or negligent. (Emphasis added.) We reasoned that the Board was the entity statutorily responsible for defending the Fund and it therefore had
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