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Swann v. Bayou Pediatric Associates, APMC

Court of Appeals of Louisiana, First Circuit

June 2, 2017

CHANTRELL L. SWAN, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, KAI SWAN
v.
BAYOU PEDIATRIC ASSOCIATES, APMC

         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 623, 303 Honorable Janice Clark, Judge Presiding

          James C. Klick Attorneys for Plaintiff-Appellant, Joseph A. Knott Chantrell L. Swan, Individually and New Orleans, LA on Behalf of Her Minor Son, Kai

          Swan Stephanie B. Laborde Attorney for Defendant-Appellee, Baton Rouge, LA Louisiana Patient's Compensation

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          HIGGINBOTHAM, J.

         This appeal arises out of a claim by Chantrell L. Swan, individually and on behalf of her minor son, Kai Swan, for future custodial medical care. Ms. Swan's claim is related to a medical malpractice case concerning injuries sustained by her son shortly after he was born in December 2002. The Nineteenth Judicial District Court (19th JDC) issued a judgment on April 13, 2016, dismissing Ms. Swan's claim against the Louisiana Patient's Compensation Fund Oversight Board in its entirety, finding that the claim was perempted. After the case was dismissed, Ms. Swan sought both a writ of review and an appeal regarding the 19th JDC's judgment. Another panel of this Court denied Ms. Swan's motion to consolidate her writ application with her appeal after the writ had already been referred to this appeal panel for consideration. Because the 19th JDC's judgment dismissed Ms. Swan's case in its entirety, it is a final and appealable judgment; therefore, we deny her writ application. We now consider the merits of Ms. Swan's appeal.

         BACKGROUND

         This case has a lengthy, circuitous procedural history. In 2003, Ms. Swan filed a medical malpractice suit in the Thirty-Second Judicial District Court (32nd JDC) against several health care providers. In that lawsuit, Ms. Swan alleged that her newborn son had sustained injuries and damages due to the health care providers' negligent treatment that resulted in her son developing a severe brain injury from complications of sepsis, meningitis, and hydrocephalus. Consequently, Ms. Swan's son requires constant custodial care, which up until the time of trial was always provided by Ms. Swan and other family members. Ms. Swan ultimately settled with her son's doctor and insurer for $100, 000.00, and then proceeded against the Louisiana Patient's Compensation Fund (PCF) for excess damages.

         At the medical malpractice trial in May 2008, the parties stipulated that Ms. Swan's son is a patient in need of future medical care and related benefits and that the damages exceeded the $500, 000.00 medical malpractice limitation. On August 22, 2008, the 32nd JDC judge signed a judgment awarding $500, 000.00 in damages, subject to a credit in favor of the PCF for the $100, 000.00 settlement. The judgment also awarded future medical expenses and amounts incurred by Ms. Swan and her son from the date of the malpractice until the date of trial in the amount of $561, 256.00. This amount included a custodial care rate of $15.00 per hour for a total of sixteen hours per day, subject to deduction for hours when Ms. Swan's son was in day care and/or in school. The judgment also stated that the 32nd JDC retained continuing jurisdiction with respect to future medical care and related benefits needed by Ms. Swan's son. No appeal was taken from that judgment, which is now final.

         After the 32nd JDCs judgment was rendered, the PCF assumed responsibility for the direct payment of Ms. Swan's son's future medical care and benefits in accordance with its medical fee schedule, at a reimbursement rate of $7.32 per hour for custodial care provided by family members. In May 2009, Ms. Swan filed a motion to compel in the 32nd JDC, requesting that the 32nd JDC assert its continuing jurisdiction and compel the PCF to pay for custodial care provided for Ms. Swan's son at the rate of $15.00 per hour as previously awarded in the medical malpractice final judgment. After a hearing, the 32nd JDC judge denied the motion, noting that the $15.00 per hour rate applied only to future medical care that had accrued from the date the suit was filed to the date of trial. The judgment also stated that the $7.32 per hour custodial rate established by the PCF's reimbursement schedule applied to Ms. Swan's son's future medical care incurred after trial, unless Ms. Swan undertook the proper procedure for requesting and receiving a waiver of the PCF's standard custodial care rate for family members.

         The 32nd JDC judge directed Ms. Swan to request an administrative hearing with the Louisiana Patient Compensation Fund Oversight Board (PCFOB) concerning the rate waiver. Ms. Swan proceeded as directed and the PCFOB hearing was held in May 2011. On July 14, 2011, the PCFOB issued a final decision denying Ms. Swan's request to waive the standard $7.32 hourly reimbursement custodial care rate for care provided by family members. Notice of the PCFOB's final decision was transmitted to all parties on July 18, 2011.

         On August 15, 2011, Ms. Swan filed a motion in the 32nd JDC medical malpractice action, appealing the final decision of the PCFOB that denied her the reimbursement rate request of $15.00 per hour for custodial care for her son. Service of process was made on the PCF's attorney of record in the medical malpractice proceeding on August 26, 2011, rather than on the PCFOB. Nevertheless, the PCFOB filed a declinatory exception raising the objection of improper venue in response, arguing that the proper venue for review of a final decision by the PCFOB is in the 19th JDC and not in the 32nd JDC.

         Following a hearing, the 32nd JDC ruled that it had continuing jurisdiction with respect to future medical care and related benefits for Ms. Swan's son, and denied PCFOB's exception of improper venue. The PCFOB filed a writ application in this Court, seeking supervisory review of the 32nd JDC's decision denying the exception of improper venue. On May 12, 2012, this Court granted the PCFOB's writ, ruling that under the operative facts, i.e., the PCFOB's decision to not waive its standard family-member custodial care rate, actually occurred where the PCFOB is located in East Baton Rouge Parish. Accordingly, this Court reversed the 32nd JDC and ruled that the 19th JDC was the only parish of proper venue for judicial review of the PCFOB's decision. Ms. Swan sought a writ of review with the Supreme Court, but her writ application was denied. Swan v. Bayou Pediatric Associates, APMC, 2011-2171 (La.App. 1st Cir. 3/12/12) (unpublished), writ denied, 2012-0734 (La. 6/1/12) 90 So.3d 441.

          Many months after the Supreme Court's writ denial on the venue issue was final, on March 26, 2013, Ms. Swan filed a motion in the 32nd JDC to transfer her appeal/request for review of the PCFOB's final decision to the 19th JDC. The 32nd JDC ordered the transfer of the entire medical malpractice suit record to the 19th JDC on April 3, 2013. Almost a year later, on February 20, 2014, Ms. Swan filed a motion for appeal/review of the PCFOB's final decision in the 19th JDC. The PCFOB promptly filed more exceptions, raising the ...


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