Skinner-Smith v. Sec'y of Health & Human Servs.

• Decision Date: 18 December 2018
• Docket Number: No. 14-1212V,14-1212V
• Court: Court of Federal Claims
• Parties: ALICIA SKINNER-SMITH, Petitioner, v. SECRETARY OF HEALTH & HUMAN SERVICES, Respondent.

ALICIA SKINNER-SMITH, Petitioner, v. SECRETARY OF HEALTH & HUMAN SERVICES, Respondent.

No. 14-1212V

United States Court of Federal Claims

Reissued for Publication: January 3, 2019¹

December 18, 2018

Vaccine Act; Motion for Review; 42 U.S.C. § 300aa-11(a)(5)(B); Statutory construction; Louisiana Medical Review Panel Proceedings

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.

Robert P. Coleman, III, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. With him were Gabrielle M. Fielding, Assistant Director, Torts Branch, Civil Division, Catherine E. Reeves, Deputy Director, Torts Branch, Civil Division, C. Salvatore D'Alessio, Acting Director, Torts Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

OPINION

HORN, J.

On December 17, 2014, Petitioner Alicia Skinner-Smith filed a petition for compensation with the National Vaccine Injury Compensation Program, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1-300aa-34 (2012) (Vaccine Act). On June 25, 2018, Special Master Laura Millman of the United States Court of Federal Claims summarily dismissed Mrs. Skinner-Smith's petition for lack of subject matter jurisdiction pursuant to 42 U.S.C. § 300aa-11(a)(5)(B) (2012), which the parties refer to as "Section 11(a)(5)(B)" of the Vaccine Act. Section 11(a)(5)(B) bars a party from filing a petition for compensation in this court "[i]f a plaintiff has pending a civil action for damages for a vaccine-related injury or death." Skinner-Smith v. Sec'y of Health & Human Servs., No. 14-1212V, 2018 WL 3991343, at *3 (Spec. Mstr. Fed. Cl. June 25,2018) (quoting 42 U.S.C. § 300aa-11(a)(5)(B)). Special Master Millman concluded, in a brief decision, that because Petitioner had, what Special Master Millman defined as a pending proceeding before a medical review panel in Louisiana on the date that Petitioner filed her petition in the above-captioned case, the petition was in "violation" of Section 11(a)(5)(8) of the Vaccine Act. See Skinner-Smith v. Sec'y of Health & Human Servs., 2018 WL 3991343, at *4. On July 25, 2018, Petitioner filed a motion for review pursuant to Rule 23 of the Vaccine Rules of the United States Court of Federal Claims (Vaccine Rules) (2018) in this court to review the Special Master's decision dismissing her petition.

BACKGROUND

Medical Review Panel Proceedings in Louisiana

In 1975, the Louisiana State legislature enacted the Louisiana Medical Malpractice Act (MMA), LA. REV. STAT. ANN. § 40:1299.41 et seq., which was later recodified and redesignated in 2015 as LA. REV. STAT. ANN. § 40:1231.1, et seq. (2018). See Mariakis v. N. Oaks Health Sys., 2018-0165, p. 1 n.1 (La. App. 1 Cir. 9/21/18); --- So. 3d ---; 2018 WL 4523956, at *3 (noting that the MMA "was set forth in La. R.S. 40:1299.41, et seq." but that in 2015, the MMA was "redesignated" to "La. R.S. 40:1231.1., et seq." (emphasis in original)).² The MMA was passed "with the intended purposes of reducing or stabilizing medical malpractice insurance rates and ensuring the availability of affordable medical services to the general public." McGlothlin v. Christus St. Patrick Hosp., 2010-2775, p. 7 (La. 7/1/11), 65 So. 3d 1218, 1225. One of the principal advantages of the MMA is to limit the liability of health care providers who qualify³ under the MMA "for all malpractice claims because of injuries to or death of any one patient" to $100,000.00, plus interest, and "[a]ny amount due from a judgment or settlement or from a final award in an arbitration proceeding" in excess of $100,000.00 "shall be paid from the patient's compensationfund." LA. REV. STAT. ANN. § 40.1231.2(A); see also Sewell v. Doctors Hosp., 600 So. 2d 577, 578 n.1 (La. 1992). In addition, the MMA limits the total amount a claimant can recover "for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits" to "five hundred thousand dollars plus interest and cost." LA. REV. STAT. ANN. § 40.1231.2(B). The Patient's Compensation Fund (PCF) is a fund comprised of monies stemming from "an annual surcharge" levied on "all health care providers in Louisiana" who qualify under the MMA. Id. at § 40.1231.4(A)-(B). The annual surcharge is collected by and deposited into the PCF by the PCF Oversight Board, which is a nine-member Board appointed by the Governor of Louisiana and established within the Division of Administration of Louisiana, a state executive agency within the State of Louisiana Office of the Governor. See id. at § 40.1231.4(D)(1)(a) ("The Patient's Compensation Fund Oversight Board is hereby created and established in the office of the governor, division of administration. The board shall be comprised of nine members, appointed by the governor subject to Senate confirmation."). The PCF Oversight Board also carries out "[t]he functions of collecting, administering, and protecting the fund, including all matters relating to determining surcharge rates, establishing reserves, the evaluating and settlement of claims, and relating to the defense of the fund." Id. at § 40.1231.4(A)(5)(b).

The MMA also provides that before an individual may file a medical malpractice claim in Louisiana State Court or in any Federal District Court which has diversity jurisdiction over a medical malpractice claim under Louisiana State law,⁴ an individual must first participate in a proceeding before a panel of three medical professionals and one attorney chairman, which in turn, issues an "expert opinion" as to whether the evidence "supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." Id. at § 40:1231.8(B)(1)(a)(i) ("No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section."); see also Sewell v. Doctors Hosp., 600 So. 2d at 578 n.1 (noting that an advantage of the MMA is "the requirement that all claims for malpractice must be submitted initially to a medical review panel"). As the Supreme Court of Louisiana explained in McGlothlin v. Christus St. Patrick Hospital, 65 So. 3d at 1226, a proceeding before a medical review panel is a "[p]retrial screening" that is

"designed to weed out frivolous claims without the delay or expense of a court trial. It is thought that the use of such panels will encourage settlement because both parties will be given a preliminary view of the merits of the case. If a claim is found by the panel to be without merit it is thought thatthe claimant will be likely to abandon his claim or agree to a nominal settlement. Moreover, a plaintiff who gains a favorable opinion from the panel may be able to negotiate a favorable settlement with his defendants, a procedure which also avoids much of the time and expense of a trial."

Id. (quoting Everett v. Goldman, 359 So. 2d at 1264); Perritt v. Dona, 2002-2601, p. 8 (La. 7/2/03); 849 So. 2d 56, 61 ("The MMA requires that all claims against health care providers be reviewed or 'filtered' through a medical review panel before proceeding to any other court."); Rhodes v. Schultis, 13-663, p. 6 (La. App. 5 Cir. 4/23/14); 140 So. 3d 331, 336 ("The Louisiana Medical Malpractice Act requires that all medical malpractice claims against qualified health care providers are to be submitted to a medical review panel prior to filing suit in any court. The purpose of pre-trial screening through a medical review panel is to weed out frivolous claims without the delay or expense of a court trial." (internal citations omitted)); Ward v. Vivian Healthcare and Rehab. Ctr., 47,649, p. 5 (La. App. 2 Cir. 5/15/13); 116 So. 3d 870, 874 ("One such advantage is the requirement that a claim first be submitted to a medical review panel before the malpractice action may commence in court. The medical review panel is a filtering process that is meant to weed out frivolous claims or prompt defendants to settle valid claims reasonably." (internal citations omitted)). In addition, if the individual fails to present his or her medical malpractice claim to a medical review panel before filing an action in a court of competent jurisdiction, the medical malpractice lawsuit filed will be dismissed by the court as premature. See Blevins v. Hamilton Med. Ctr., Inc., 2007-127, p. 4 (La. 6/29/07); 959 So. 2d 440, 444 ("Under the LMMA [Louisiana Medical Malpractice Act], a medical malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel."); see also Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 2004-0451, p. 4 (La. 12/1/04); 888 So. 2d 782, 785 ("An action is premature when it is brought before the right to enforce it has accrued. Under the Medical Malpractice Act, a medical malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel."); Atkinson v. Lammico Ins. Co., 2011-13, p. 3 (La. App. 3 Cir. 5/4/11); 63 So. 3d 1176, 1179 ("[I]f the plaintiff fails to submit the claim to a medical review panel before the institution of suit, the appropriate procedural remedy is a timely filed exception of prematurity.").

The medical review panel proceeding is initiated when a claimant files his or her "request for review of a malpractice claim or a malpractice complaint," with the Division of Administration of Louisiana, which, as previously noted, is a state executive agency within the Office of the Governor of Louisiana. See LA. REV. STAT. ANN. § 40:1231.8(A)(2)(b)(i) ("The request for review of a medical malpractice claim under this Section shall be deemed filed on the date...