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Ceasar v. Barry2/2/2005
AFFIRMED AS AMENDED.
For the third time, the Louisiana Patient's Compensation Fund appeals a ruling of the trial court in this medical malpractice case. At issue herein is whether summary judgment was properly granted in favor of the plaintiffs on the contested matters of comparative fault and damages. We amend the award of judicial interest and, as amended, affirm.
The facts of this case were set forth in both previous appeals. See Ceasar v. Barry, 02-52 (La.App. 3 Cir. 7/17/02), 823 So.2d 998, writ denied, 02-2515 (La. 9/19/03), 853 So.2d 630,and Ceasar v. Barry, 99-1733 (La.App. 3 Cir. 11/2/00), 772 So.2d 331, writ denied, 00-3291 (La. 2/2/01), 784 So.2d 8. Likewise, the procedural history is detailed in this court's prior opinions. Essentially, the plaintiffs alleged malpractice in the prenatal care provided to Mrs. Ceasar and in the May 15, 1987 delivery of their son, Adam, Jr., which resulted in dystocia, a type of permanent paralysis known as Erb-Klumpke Palsy, and possibly learning disabilities. This case has been pending since the plaintiffs filed a request for a medical review panel in 1988; Adam, Jr. is now seventeen years old.
During the course of this litigation, the treating physician's bankrupt liability insurer settled with the plaintiffs, and the physician admitted liability in causing the plaintiffs' damages. The plaintiffs then pursued their claim for excess damages against the Patient's Compensation Fund. Asserting there was no genuine issue of material fact on the question of the Fund's liability for excess damages, the plaintiffs moved for summary judgment. Attached to their motion was medical evidence of Adam, Jr.'s disabilities and future prognosis. After considering the motion, the trial court granted summary judgment and assessed damages at $500,000.00, plus future medical expenses. This court reversed. We remanded for a determination of "the degree of comparative fault attributable to the various parties Defendant as well as for a precise determination of the quantum of damages." Ceasar, 823 So2d at 1001.
On remand, the plaintiffs again moved for summary judgment and offered the same evidence submitted at the original summary judgment hearing. The matter was heard by a different judge of the Fourteenth Judicial District Court. Once more, judgment was rendered in the plaintiffs' favor, and damages were assessed at $500,000.00, less a $100,000.00 credit reflecting the settlement with the treating physician's insurer. Future medical expenses were awarded as they accrue, and the $400,000.00 judgment was to be paid with legal interest from the date of filing.
In the instant appeal, the Fund contends the trial court erred in failing to assess the fault of Lake Charles Memorial Hospital and in awarding excessive damages based on insufficient evidence. In answer to the appeal, the plaintiffs argue the trial court erred in failing to award legal interest on the total damages of $500,000.00, in compliance with the terms of the Medical Malpractice Act, La.R.S.40:1299.42(B)(2), at the time suit was filed.
We find no error in the trial court's determination that the Fund failed to prove liability on the part of Lake Charles Memorial Hospital. As a matter of law, the Fund is prohibited from asserting the fault of other qualified health care providers, such as the hospital, who have been dismissed from suit after the plaintiff settled with another provider. Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. denied, 498 U.S. 982, 111 S.Ct. 513 (1990); Turner v. Southwest Louisiana Hosp. Assoc., 03-237 (La. App. 3 Cir. 10/1/03), 856 So.2d 1237, writ denied, 04-826 (La. 6/4/04), 876 So.2d 89. At the time of this court's remand for
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