Bickham v. Louisiana Emergency Medical Consultants, No. 2008 CA 1645 (La. App. 3/27/2009)
| Decision Date | 27 March 2009 |
| Docket Number | No. 2008 CA 1645.,2008 CA 1645. |
| Parties | JERRY BICKHAM, ELLA BICKHAM, CANDACE LAJOCE BICKHAM, AND JYRA THELMELIA BICKHAM v. LOUISIANA EMERGENCY MEDICAL CONSULTANTS; INPHYNET d/b/a INPHYNET MEDICAL MANAGEMENT/MED PARTNERS; RIVERSIDE MEDICAL CENTER; JAMES KERRY, M.D.; AND XYZ, ABC, AND DEF INSURANCE COMPANIES. |
| Court | Court of Appeal of Louisiana — District of US |
MARY RICCIO WISNER, Counsel for Plaintiff/Appellee Jerry Bickham, Ella Bickham, Candace Lajoce Bickham, and Jyra Thelmelia Bickham.
KATHLEEN E. SIMON, ADRIANNE BAUMGARTNER, JOSEPH LE RAY McNAMARA, C. WILLIAMS BRADLEY, Jr., Counsel for Defendant/Appellant Louisiana Emergency Medical Consulants; InPhyNet; James Kerry, M.D.; and Basem Yacoub, M.D.
ANN MARIE LeBLANC, Counsel for Defendant/Appellee St. Paul Fire and Marine Insurance Co.
SEAN R. RASTANIS, Counsel for Defendant/Appellee Lifeline Emergency Medical Services Company and Royal Indemnity Company
JACQUELINE BLANKENSHIP, Counsel for Defendant/Appellee East Jefferson General Hospital
DANIEL REED, Counsel for Defendant/Appellee Riverside Medical Center.
Before: KUHN, GUIDRY, and GAIDRY, JJ.
Defendants, Louisiana Emergency Medical Consultants (LEMC), InPhyNet d/b/a InPhyNet Medical Management/Med Partners (InPhyNet), James Kerry,1 M.D., and Basem Yacoub, M.D. appeal from a judgment of the trial court denying their motion for summary judgment and granting summary judgment in favor of plaintiffs, Jerry Bickham, Ella Bickham, Candace Bickham, and Jyra Bickham. For the reasons that follow, we affirm in part and reverse in part.
On November 30, 1997, Jerry Bickham was injured in an automobile accident and was taken to the emergency room at Riverside Medical Center (Riverside). While at Riverside, Bickham was evaluated and treated by Dr. Basem Yacoub. Bickham was subsequently transferred, at his request, to East Jefferson General Hospital (EJGH) for treatment. While at EJGH, Bickham suffered a spinal cord compression while being moved to change his bed linens, which resulted in Bickham being rendered a quadriplegic.
Thereafter, Bickham filed a malpractice claim with the State of Louisiana, Division of Administration against several health care providers for their negligent evaluation and treatment of him. While this claim was pending before the medical review panel, Bickham filed a petition for damages against Riverside, InPhyNet, LEMC, Dr. Kerry, and Dr. Yacoub. In his petition, Bickham asserted that Dr. Yacoub was not a qualified health care provider covered by the provisions of the Medical Malpractice Act, La. R.S. 40:1299.41, et seq., and detailed causes of action against the other defendants for their negligent credentialing, monitoring, and supervision of Dr. Yacoub, as well as for their vicarious liability.2
On October 2, 2006, InPhyNet, LEMC, Dr. Kerry and Dr. Yacoub filed a motion for summary judgment requesting that the court dismiss Bickham's claims against them because Bickham had exhausted the statutory maximum recovery against all Patients' Compensation Fund (PCF) defendants. The next day, Bickham filed a motion for partial summary judgment seeking a declaration that Dr. Yacoub was not a qualified health care provider under the Medical Malpractice Act at the time of the alleged malpractice.
Following a hearing on these motions, the trial court rendered judgment granting Bickham's motion for partial summary judgment, concluding that Dr. Yacoub was not a qualified health care provider under the Medical Malpractice Act on November 30, 1997. Based on this determination, the trial court denied the motion for summary judgment filed by InPhyNet, LEMC, Dr. Kerry, and Dr. Yacoub.
InPhyNet, LEMC and Dr. Yacoub now appeal from this judgment, asserting that the trial court erred in granting Bickham's motion for partial summary judgment respecting the PCF qualification of Dr. Yacoub and erred in denying summary judgment to InPhyNet, LEMC, and Dr. Yacoub.3
On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So. 2d 307, 314. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La. 2/29/01), 755 So. 2d 226, 230-231.
The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
A genuine issue is a triable issue. More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La. 7/5/94), 639 So. 2d 730, 751. A fact is material when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Smith, 93-2512, 639 So. 2d at 751. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La. App. 1st Cir. 6/29/98), 713 So. 2d 1199, 1203, writs denied, 98-2023, 98-2026 (La. 11/13/98), 730 So. 2d 934.
The Medical Malpractice Act limits the liability of health care providers who qualify by maintaining specified malpractice insurance and by paying a surcharge to the PCF. A qualified health care provider is liable for malpractice only to the extent provided in the Act; namely, a qualified health care provider has no liability for any amount in excess of $100,000.00, plus interest. La. R.S. 40:1299.41(B)(2); Sewell v. Doctors Hospital, 600 So. 2d 577 (La. 1992). The defendant health care provider bears the burden of proving that it comes within the protections afforded by the Act. See Bennett v. Krupkin, 00-0023, p. 7 (La. App. 1st Cir. 3/28/02), 814 So. 2d 681, 685-686, writ denied, 02-1208 (La. 6/21/02), 819 So. 2d 338; Remet v. Martin, 97-0895, p. (La. App. 4th Cir. 12/10/97), 705 So. 2d 1132, 1134.
Louisiana Revised Statutes 40:1299.424 sets forth the requirements for a health care provider to qualify for the protections and benefits of the Act as follows:
A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided in Subsection E of this Section (2) Pay the surcharge assessed by this Part on ail health care providers according to La. R.S. 40:1299.44.
(3) For self-insureds qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
The requirement of proof of financial responsibility is further explained in La. R.S. 40:1299.42(E)(1), which states in pertinent part:
Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board.
In the instant case, Bickham's motion for partial summary judgment attacks the qualification of Dr. Yacoub as a health care provider entitled to the benefits of the Medical Malpractice Act and asks the trial court to declare that Dr. Yacoub is not a qualified health care provider. Likewise, InPhyNet, LEMC and Dr. Yacoub assert in their motion for summary judgment that Bickham has already recovered the statutory maximum from other qualified health care providers and because Dr. Yacoub, as a qualified health care provider, no longer has any actual liability, InPhyNet and LEMC cannot be held vicariously liable and accordingly, they should all be dismissed. Because InPhyNet, LEMC, and Dr. Yacoub bear...
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