Opinion
NO. 2011-CA-0900
03-16-2012
BICKHAM, ET AL. v. LAMMICO ET AL.
, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS
I concur in the majority's affirmation of the trial court's determination that Dr. Jackson established that he satisfied the requirements of a qualified healthcare provider under the Louisiana Medical Malpractice Act ("the Act"). However, I respectfully dissent from the dismissal of the Bickhams' claim for interest and costs on the grounds that they have already received the maximum recovery under the Act.
In accordance with the Louisiana Supreme Court's interpretation of Miller v. LAMMICO, 07-1352 (La. 1/16/08), 973 So.2d 693, and comparative fault provisions, qualified health care providers are responsible for their share of apportioned fault, up to the statutory limit provided by La. R.S. 40:1299.42(B)(2). In Miller, the Court opined that "[p]roviders already receive the benefits intended by the legislature, the primary benefit being that the amount of their liability is limited to $100,000 pursuant to La. R.S. 40:1299.42(B)(2)." Id. Providing the possibility of an additional benefit does not conform with the purposes of either the Medical Malpractice Act or the comparative fault scheme.
I therefore find that not allowing a plaintiff to recover interest and costs from a non-settling, qualified health care provider would provide the "additional Court has ruled that "nothing in the malpractice act...states that once the victim settles with one health care provider, the victim is precluded from seeking a determination of liability against remaining health care providers." Remet v. Martin, 98-2751 (La. App. 4th Cir. 3/31/99), 737 So.2d 124, 132. Therefore, I would allow the plaintiffs to recover interest and costs from a non-settling, qualified health care provider such as Dr. Jackson.