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Olson v. Toce

Court of Appeals of Louisiana, Third Circuit

June 8, 2017

LAUREEN OLSON
v.
PAUL M. TOCE, JR., ET AL.

         ON APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2011-0898 HONORABLE PATRICK MICHOT, DISTRICT JUDGE

          Nadia de la Houssaye Donald W. Washington Jones Walker LLP COUNSEL FOR OTHER RESPONDENT: Louisiana Patient's Compensation Fund Oversight Board

          J. Lomax Jordan Jr. Victor A. Ashy COUNSEL FOR PLAINTIFF/APPLICANT: Laureen Olson

          Michael W. Adley Adam Gulotta Judice & Adley, APLC COUNSEL FOR DEFENDANTS/RESPONDENTS: Paul M. Toce, Jr. Paul M. Toce, Jr., A Professional Medical Corporation

          Thomas S. Schneidau Norma F. Pizza Milling Benson Woodward LLP COUNSEL FOR DEFENDANT/RESPONDENT: LAMMICO

          Court composed of Syvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

          SHANNON J. GREMILLION JUDGE

         The plaintiff-applicant, Laureen Olson, applied for supervisory writs with this court following the trial court's grant of the exceptions of vagueness, ambiguity, and prematurity filed by the Louisiana Patient Compensation Fund Oversight Board (the PCF) in response to her Petition for Approval of Settlement of Medical Malpractice Claim pursuant to La.R.S. 40:1231.4.[1] We called up the writ and requested supplemental briefing and argument. For the following reasons, the writ is granted, and the ruling of the trial court is reversed. The matter is remanded for proceedings consistent with this opinion.

         FACTUAL AND PROCEDURAL BAsCKGROUND

         The basic facts of this case are not disputed. A medical review panel found that Dr. Paul M. Toce, Jr., [2] defendant-respondent, committed medical malpractice in his treatment of Olson and, further, engaged in an inappropriate sexual relationship with her. Over the years, extensive litigation and procedural matters have arisen. Olson first filed two lawsuits in February 2011 prior to the convening of the panel: one for medical malpractice and one for general tort claims not considered medical malpractice. After the panel rendered its opinion in December 2012, and following appeals to this court, the general tort suit was amended to include the medical malpractice claims. In Olson v. Louisiana Medical Mutual Insurance Co., 13-1182 (La.App. 3 Cir. 3/5/14), 134 So.3d 1276, writ denied, 14-1053 (La. 10/24/14), 151 So.3d 601, we reversed the trial court's ruling which sustained the exception of lis pendens, thereby reviving the original medical malpractice claim. Thereafter, the two suits were consolidated in September 2016. These suits asserted claims for medical malpractice and non-medical-malpractice claims arising from a sexual relationship between Toce and Olson.

         Additionally, prior to the consolidation, Defendants filed various exceptions to the amended suit, arguing that Olson needed to specify which acts were medical malpractice and which were general tort claims. Olson filed writs with this court following the trial court's ruling that the lawsuit needed to be amended to specify which acts constituted medical malpractice and which constituted a breach of general tort law. The PCF participated in the arguments to the trial court. We granted the writ and reversed the trial court, finding that Olson's third amended supplemental and restated petition was "sufficient to inform the defendants of the claims asserted and to allow them to prepare a defense." See Writ Application, pg. 167, Olson v. ABC Insurance Co., 15-339 (La.App. 3 Cir. 5/27/15) (an unpublished writ opinion).

         Thereafter, in December 2016, Olson and Defendants agreed to settle her claims for the sum of $140, 000, reserving all rights against the PCF. Olson filed her Petition for Approval of Settlement of Medical Malpractice Claim Pursuant to La.R.S. 40:1231.4.

         In October 2016, the PCF filed an amended peremptory exception of no cause of action, dilatory exception of vagueness and ambiguity, answer and objections to the petition for approval of settlement of medical malpractice claim pursuant to La.R.S. 40:1231.4. The PCF's main argument was that the settlement does not assign dollar values distinguishing between medical malpractice and non-medical-malpractice claims being settled.

         Following a November 2016 hearing, the trial court agreed and granted the PCF's exception of vagueness and ambiguity, thereby denying the petition for approval of the settlement. The trial court's judgment on the exceptions noted the granting of the exceptions were without prejudice to Olson's "right to amend, supplement or re-state the petition for approval of the settlement." In its written reasons for judgment, the trial court noted:

Ultimately, the Court sustained the PCF's Dilatory Exception of Vagueness and Ambiguity, in order to allow the PCF to adequately prepare its defense for trial. The PCF must defend itself against claims of medical malpractice; however, the PCF does not need to defend itself against claims of non-medical malpractice.
. . . .
The Court sustained the PCF's Dilatory Exception of Prematurity, finding that it would be premature for this Court to approve Plaintiff's settlement with the underlying providers because the settlement clearly includes settlement of claims involving sexual misconduct, which are not covered by the Louisiana MMA.

         Olson filed this writ application seeking reversal of the trial court's ruling and assigns as error:

1. The trial court erred in sustaining the dilatory exceptions of ambiguity and prematurity as the PCFOB an intervenor takes the proceedings as he finds them under La.C.C.P. Article 1094.
2. The trial court erred in sustaining the Dilatory Exception of Vagueness/Ambiguity relating to the petition to approve the settlement between plaintiff Olson and Defendants Toce APMC and Toce, Jr. and their insurer LAMMICO, as law of the case precludes reconsideration of the issue of vagueness.
3. The trial court erred in sustaining the Dilatory Exception of Prematurity relating to the petition to approve the settlement between plaintiff Olson and Defendants Toce APMC and Toce, Jr. and their insurer LAMMICO as there was full compliance with the statutory procedures mandated by LSA-RS 40-1231.4.
4. The trial court erred in failing to approve a global settlement of all claims by plaintiff Olson and against Defendants Toce APMC and Toce, Jr. and their insurer LAMMICO, since -
A) the settling parties are competent to enter into the settlement;
B) there is a basis for the plaintiff's claims in law and in fact;
C) the medical review panel found the defendant healthcare providers to be in breach of the standard of care; and,
D) the medical review panel found the defendant healthcare providers to have caused damage to the plaintiff and procedures mandated by ...

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