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
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
de la Houssaye, Donald W. Washington Counsel for
Defendant/Appellee The Louisiana Patient's Compensation
BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
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.
AND PROCEDURAL HISTORY
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, 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.
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.
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.
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.
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
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. 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.
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 ...