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O'Brien v. Rizvi4/12/2005
For the above and forgoing reasons, the judgment of the court of appeal is reversed and set aside. The Board's petition for intervention is hereby granted and the judgment of the trial court denying the defendants' exception of prematurity is reinstated. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein.
REVERSED AND REMANDED.
In this medical malpractice case we granted certiorari to consider two issues. The first issue is whether the court of appeal erred in denying the Louisiana Patient's Compensation Fund Oversight Board's (hereinafter "Board") petition of intervention on plaintiffs' request for rehearing. The second issue is whether the court of appeal erred in ruling the defendants were qualified health care providers (QHCP) under Louisiana's Medical Malpractice Act, La. Rev. Stat. Ann. 40:1299.41 et seq. (hereinafter "Act"), thereby reversing the trial court's denial of the defendants' dilatory exception of prematurity. After careful review of the record, the applicable jurisprudence and the plain language of the Act, we find the Board should have been allowed to intervene in the petition for rehearing, and further find the defendants were not qualified health care providers entitled to the protections afforded under the Act.
FACTS AND PROCEDURAL HISTORY
CompHealth is a staffing company that places locum tenens physicians in hospital and clinic positions for short-term assignments. CompHealth placed Dr. Arthur Plautz, Jr. at the Veterans Administration Hospital (VA Hospital) in Pineville, Louisiana. CompHealth sought qualification with the Louisiana Patient's Compensation Fund (hereinafter PCF) by purchasing a policy of professional liability insurance through St. Paul Fire and Marine Insurance Company (St. Paul) on a claims-made basis. The policy covered claims that were made from February 1, 2001 to February 1, 2002. The policy was issued on a full-time equivalency (FTE) basis, which means the premium is based on the estimated number of physician days worked by CompHealth's locum tenens physicians in Louisiana. The insured is required at the end of the policy year to audit the actual number of hours worked by the locum tenens physicians, report that amount to the insurance company, and pay an additional premium to the insurer as well as an additional surcharge to the PCF.
In February 2001, when CompHealth obtained the claims-made policy, CompHealth also submitted a check dated February 23, 2001 in the amount of $7,529 for a surcharge to the PCF. On March 8, 2001, the PCF issued CompHealth a certificate of enrollment with effective dates of February 23, 2001 to February 1, 2002.
In February 2002, CompHealth submitted a revised certificate of insurance to the PCF for the period of February 1, 2001 to February 1, 2002, reflecting the actual days worked by CompHealth's physicians in Louisiana. The revised surcharge amount due to the PCF was $16,104. CompHealth submitted the additional surcharge due of $8,575. At the same time CompHealth purchased an unlimited Extended Reporting Endorsement, or "tail"coverage, with St. Paul, which provided coverage for any alleged acts of malpractice that occurred between February 1, 2001 and February 1, 2002, even if the claim was made after February 1, 2002. CompHealth submitted to the PCF an additional surcharge on the tail coverage in the amount of $28,756.
In March, 2002, the PCF informed CompHealth that its physicians who were assigned to governmental agencies or who were not licensed in Louisiana could not participate in the PCF. This information came about by CompHealth's inquiry to the PCF, wherein CompHealth informed t
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