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Brown v. Patient Compensation Fund Oversight Board

Court of Appeals of Louisiana, First Circuit

January 5, 2018

GLORIA BROWN
v.
PATIENT COMPENSATION FUND OVERSIGHT BOARD

         Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana Trial Court Number 645832 Honorable Timothy Kelley, Judge

          Tonya S. Johnson New Orleans, LA Attorney for Appellant Plaintiff- Gloria Brown

          David A. Woolridge, Jr. Brent J. Bourgeois Baton Rouge, LA Attorney for Appellee Defendant - Louisiana Patient's Compensation Fund Oversight Board

          BEFORE: WHIPPLE, PETTIGREW, McCLENDON, WELCH, AND THERIOT, JJ.

          WELCH, J.

         The plaintiff/claimant, Gloria Brown, appeals a judgment denying her request for a writ of mandamus against the defendant, the Patient's Compensation Fund Oversight Board (the "PCF")[1] in connection with a medical review panel proceeding. For the reasons that follow, we reverse the judgment of the trial court and render judgment issuing a writ of mandamus directed to the PCF.

         BACKGROUND

         At issue in this appeal is whether the PCF exceeded its statutory authority and/or failed to comply with a ministerial duty while processing a request for review of a medical malpractice claim by a medical review panel in accordance with the provisions of the Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1299.41, et seq[2] The relevant facts are not in dispute. On December 1, 2014, counsel for Ms. Brown mailed a request for review to the Division of Administration by certified mail. See La. R.S. 40:1299.47(A)(2)(b).[3] Pursuant to La. R.S. 40:1299.47(A)(3), it "shall be the duty of the board" within fifteen days of the receipt of the claim by the PCF, to send notification to the claimant in order to:

(a) Confirm to the claimant by certified mail, return receipt requested, that the filing has been officially received and whether or not the named defendant or defendants have qualified under this Part.
(b) In the confirmation to the claimant pursuant to Subparagraph (a) of this Paragraph, notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the board, and that upon failure to comply with the provisions of Subparagraph (1)(c) or
(d) of this Subsection, the request for review of a malpractice claim is invalid and without effect and that the request shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.

(Emphasis added).

         The deadline[4] by which the filing fee must be paid to the PCF is set forth in La. R.S. 40:1299.47(A)(1)(c), which provides:

A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part. [5]

         By letter dated December 11, 2014, the notification statutorily mandated by La. R.S. 40:1299.47(A)(3) was mailed by the PCF to counsel for Ms. Brown by certified mail, return receipt requested. On January 12, 2015, in response to a telephone inquiry from counsel for Ms. Brown about the status of the notification, the PCF mailed counsel for the claimant by certified mail, return receipt requested, a second notification along with a copy of the December 11, 2014 notification.

         On January 27, 2015, the December 11, 2014 notification was returned to the PCF as unclaimed. In such cases, La. R.S. 40:1299.47(A)(5) requires the PCF to provide the required notification by regular first class mail, and it provides:

(5) In the event that any notification by certified mail, return receipt requested, provided for in Paragraphs (3) and (4) of this Subsection is not claimed or is returned undeliverable, the board shall provide such notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail.[6]

(Emphasis added).

          There is no dispute that the PCF did not comply with its statutory duty to resend the December 11, 2014 notification by regular first class mail. Instead, by letter dated January 29, 2015, the PCF sent a letter to counsel for Ms. Brown notifying her that the December 1, 2014 request for review had been ...


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