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Lecompte v. Continental Casualty Co.

Court of Appeals of Louisiana, First Circuit

July 12, 2017

ROLAND LECOMPTE AND DINAH LECOMPTE
v.
CONTINENTAL CASUALTY CO. AND MICHAEL ISABELL, M.D.

         Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 166, 471 The Honorable George J. Larke, Jr., Judge Presiding

          J. E. Cullens, Jr., Edward J. Walters, Jr., Darrel J. Papillion, David Abboud Thomas, Jennifer W. Moroux, Baton Rouge, Sean E. Rastanis Counsel for Appellant/Intervenors Terrebonne Parish School Board and Midwest Employer's Casualty Company

          Nadia de la Houssaye, Donald W. Washington Counsel for Defendant/Appellee The Louisiana Patient's Compensation Fund

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         The intervenors/appellants, Terrebonne Parish School Board (TPSB) and Midwest Employer's Casualty Company (Midwest), appeal the Thirty-second Judicial District Court's ruling sustaining an exception of no right of action in favor of the defendant/appellee, Louisiana Patient's Compensation Fund (PCF). For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On July 24, 2008, Roland LeCompte, an employee of TPSB, sustained injuries during the course and scope of his employment when he fell eight feet from a ladder. He was immediately brought to the emergency room (ER) of Terrebonne General Medical Center (TGMC) for the injuries sustained to his hip, knee, and elbow. Mr. LeCompte was treated by Dr. Michael Isabell[1], who ordered x-rays for his knee and hip, but not for his elbow. Mr. LeCompte's wound to his elbow was sutured without x-rays being taken.

         Mr. LeCompte was discharged from TGMC the same day, but was called back to the ER when the x-rays taken of his hip indicated a possible fracture. On this second visit to the ER, x-rays were taken of his elbow. Mr. LeCompte was readmitted to TGMC for treatment of his hip and elbow.

         The otherwise minor laceration to Mr. LeCompte's elbow became severely infected due to the foreign material being left inside it. The infected tissue contained what is commonly known as "flesh-eating bacteria, " and the infection was nearly fatal for Mr. LeCompte. Although the infection was ultimately treated successfully, Mr. LeCompte developed another serious condition from the infection, called chronic inflammatory demyelinating polyneuropathy, or CIDP. Mr. LeCompte had to receive ongoing treatment for this debilitating condition. Mr. LeCompte was approximately 49 years old at the time of his accident, and it is estimated that he will continue to require treatment for CIDP for the rest of his life.

         On February 2, 2012, a medical review panel (MRP) concluded that Dr. Isabell failed to comply with the appropriate standard of care as charged in the complaint against him, but that it was not a factor in the resultant damages. The MRP's reasons state that Dr. Isabell should have ordered an x-ray of Mr. LeCompte's injured elbow, but that his failure to do so did not change the fact that the wound was going to be infected. On April 5, 2012, Mr. LeCompte and his wife filed a petition for damages against Dr. Isabelle and his liability insurer, Continental Casualty Company, alleging that Dr. Isabell committed medical malpractice for the aforementioned reasons. Mr. LeCompte claimed in the petition that at the time of its filing, he had incurred $268, 000.00 in expenses related to Dr. Isabell's malpractice and would continue to incur expenses.

         On May 1, 2012, TPSB and Midwest (hereafter "intervenors") filed a petition for intervention in the malpractice lawsuit. They allege that Mr. LeCompte suffered the injury during the course and scope of his employment with TPSB, and thus TPSB had been paying his medical expenses pursuant to the Louisiana Workers' Compensation Law. Midwest claimed in the petition for intervention that it provided workers' compensation insurance to TPSB for amounts in excess of $300, 000.00. The intervenors claimed they were entitled to reimbursement for sums they had paid to or on behalf of Mr. LeCompte in workers' compensation benefits, which could arise from an award of damages to Mr. and Mrs. LeCompte through a trial or compromise in their medical malpractice action.

          On April 28, 2015, Mr. and Mrs. LeCompte filed a motion to dismiss their claims against Dr. Isabell and Continental with prejudice, and the accompanying order was signed by the trial court the next day.[2] Also, on April 28, 2015, the intervenors filed an amending and supplemental petition for intervention, claiming that they were legally subrogated to the rights of Mr. LeCompte and were entitled to recover damages against Dr. Isabell and Continental up to the amount of benefits or compensation paid and to be paid on behalf of Mr. LeCompte and his dependents.

         On August 24, 2015, the intervenors filed a petition to approve the settlement of the medical malpractice claims and admit Dr. Isabell's liability with a reservation of rights for excess damages against the PCF. The intervenors claimed in the petition that Dr. Isabell had paid $100, 000.00 to settle their claims against him, and by his payment admitted his medical malpractice. On September 17, 2015, the trial court approved the settlement thereby dismissing Dr. Isabell and Continental with prejudice; however, the trial ...


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