AMY, J., concurring in part, dissenting in part.

I dissent from the majority analysis in all respects other than the affirmation of the general damages award.

Future Medical Care and Related Benefits

The LPCF argues that the trial court erred in making any factual findings regarding the quantification of future medical care and related benefits. I find that the matter is best understood by reference to both La.R.S. 40:1299.43 and the Louisiana Supreme Court's decision in Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210.

At the time of trial, La.R.S. 40:1299.43 provided, in pertinent part:

A. (1) In all malpractice claims filed with the board which proceed to trial, the jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits and the amount thereof.

(2) In actions upon malpractice claims tried by the court, the court's finding shall include a recitation that the patient is or is not in need of future medical care and related benefits and the amount thereof.

(3) If the total amount is for the maximum amount recoverable, exclusive of the value of future medical care and related benefits, the cost of all future medical care and related benefits shall be paid in accordance with this Section.

(4) If the total amount is for the maximum amount recoverable, including the value of the future medical care and related benefits, the amount of future medical care and related benefits shall be deducted from the total amount and shall be paid from the patient's compensation fund as incurred and presented for payment. The remaining portion of the judgment shall be paid in accordance with R.S. 40:1299.44(A)(7) and 40:1299.44(B)(2)(a), (b), and (c).

(5) In all cases where judgment is rendered for a total amount less than the maximum amount recoverable, including any amount awarded on future medical care and related benefits, payment shall be in accordance with R.S. 40:1299.44(A)(7) and 40:1299.44(B)(2)(a), (b), and (c).

(6) The provisions of this Subsection shall be applicable to all malpractice claims.

. . . .

C. Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between a patient and the patient's compensation fund in which the provision of medical care and related benefits is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient's compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider's malpractice unless the patient refuses to allow them to be furnished.

D. Payments for medical care and related benefits shall be paid by the patient's compensation fund without regard to the five hundred thousand dollar limitation imposed in R.S. 40:1299.42.

E. (1) The district court from which final judgment issues shall have continuing jurisdiction in cases where medical care and related benefits are determined to be needed by the patient.

Pursuant to Section A, and contrary to the LPCF's assertions, the trial court was correct in its inclusion of the quantification of future medical care and related benefits in the judgment.

Noting La.R.S. 40:1299.43(A)'s requirement, the supreme court extensively discussed the parameters of a trial court's jurisdiction in cases arising under the Medical Malpractice Act in Kelty, 633 So.2d 1210. The supreme court related the unique structure of the Medical Malpractice Act, ultimately explaining that the trial court's jurisdiction in cases arising under the Act is limited and that jurisdiction regarding future medical care rests, instead, with the LPCF. The court stated:

During the brief history of the future medical benefits program, the responsibility for its administration has been vested in three different agencies, but the basic characteristics of the program have remained the same. First, the claim for such benefits is a special statutory creation inherently different from a general tort law claim for a money judgment for damages. In fact, the program is designed as a remedy, although only a partial, carefully cost-effective one, to the harsh effects of recent changes in medical malpractice tort law. A claimant must meet a special definition of" need" to be entitled to benefits and may receive recompense for actual necessary medical expenses only so long as that need continues. Second, the statute authorizes a patient in need to file her claim only with the agency vested with the authority to administer the program. Section 1299.43C of the MMA expressly provides:

Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between a patient and the patient's compensation fund in which the provision of medical care and related benefits is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient's compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider's malpractice unless the patient refuses to allow them to be furnished.

This feature of the statutory scheme alone clearly indicates that the agency has exclusive jurisdiction of future medical and related care claims, and this meaning becomes even more evident when other aspects of the legislation are taken into consideration. Third, the same agency that is granted the authority to receive and evaluate claims, and to pay, settle or reject them, is also vested with full powers to assure the cost-effectiveness of a claims adjustment and the fiscal soundness of the PCF. The agency has the power to require a medical inspection of the need of each claimant for medical care benefits every six months without a court order and more often with a court order. La.R.S. 40:1299.43G. The agency may reduce the payment of claims pro rata below actual cost of medical expenses if the agency determines that the PCF would be exhausted by payment in full of all claims during any semi-annual period. Id. 44A(7). The agency is authorized to apply for and cause to be established appropriate surcharges to be imposed on health care providers and to collect surcharges from self-insured providers. Id. 44A(2).

In establishing the administrative program, the legislature gave statutory jurisdiction to the responsible agency for the purpose of granting, denying, or settling medical and related care services claims. Along with this initial decision-making responsibility the legislature gave clear authority to the agency to supervise the administration of continuing claims. The statutory provisions contemplate that the agency will develop expertise and experience in administering not only future medical care claims but also the moneys from which they are to be paid. The administering agency is required to develop specialized knowledge and assume the responsibility of establishing, and applying for appropriate surcharges to be imposed on health care providers and collecting surcharges from self-insured providers. La.R.S. 40:1299.44A(2), (3), (4).

Finally, the statutory provisions referring to the courts clearly indicate that they are not vested with original jurisdiction or decision making responsibility over future medical care claims. The courts are authorized to perform two limited functions: (i) certification of whether a malpractice victim is a patient in need, i.e., whether the victim's damages consumed the cap limits without affording her compensation for all actual medical expenses necessitated by the malpractice, La.R.S. 40:1299.43A; and (ii) random and ephemeral housekeeping matters, viz., the court is granted a very limited continuing jurisdiction to award attorney fees when the PCF fails to pay timely, id. 43E(2), and order more frequent physical examinations of a patient, upon reasonable cause. Id. 43G(5).

Given the minor, supporting role assigned to the courts, the expertise expected of the agency, the confidence the legislature has placed in the agency, and the active decision-making, administrative, and supervisory roles the agency is required to play, permitting courts throughout the state to conduct their own litigation involving future medical care claims would conflict with and hinder the regulatory scheme rather than supplement or promote its objectives. Indeed, the legislative scheme would be absurd and unworkable if courts were authorized to redetermine de novo reasonable, non-arbitrary decisions made by the agency with respect to the initial disposition of claims, the continuing need of patients for medical care benefits, the fiscal ability of the PCF to pay claims in full, the percentage of pro rata reduction of claim payments required to maintain the PCF's fiscal stability, and the level of surcharges necessary to maintain the PCF's actuarial soundness. Because all of these determinations are interrelated, the legislature clearly intended to assign the original decision-making function with respect to them to the expert administrative agency. Consequently, we conclude that the legislature intended to eliminate all judicial power in initial decision making or supervision over medical and related care claims and to vest such exclusive jurisdiction in the agency legislatively assigned to administer the PCF, subject only to court review of the agency's actions pursuant to well established principles of judicial review.

Id. at 1217-19 (citations omitted). Thus, while La.R.S. 40:1299.43(A) requires a determination as to the necessity and a quantification of future medical care and related benefits, the discussion in Kelty makes clear that the trial court lacks jurisdiction to reduce findings as to quantum to a money judgment.

Although the majority indicates that the figures for future medical care and related expenses will become executory only upon approval by the LPCF or upon further order of the trial court, I disagree that the quantification will become executory at any point in this case. Rather, as indicated in Hall v. Brookshire Bros, Ltd., 02-2404 (La. 6/27/03), 848 So.2d 559, ftnt 10: "The purpose of quantifying future medical expenses, as required by LSA-R.S. 40:1299.43(A)(1), is revealed in the provisions that follow the statute. The amount of future medical expenses awarded determines the method of payment of the judgment. See, LSA-R.S. 40:1299.43(A)(3),(4) and (5)." Given this statement, I disagree to the extent that the majority opinion can be interpreted as indicating that the trial court's quantification of future medical care and related benefits has any effect beyond the determination of the appropriate method of payment as this case is one in which payment is controlled by La.R.S. 40:1299.43(A)(3).

Accrued Medical Expenses

Further, I respectfully disagree with the majority's determination that the trial court had jurisdiction to reduce to money judgment those future medical expenses incurred prior to trial. In my opinion, this issue is controlled by the express wording of La.R.S. 40:1299.43(B)(1) which, at the time of trial, provided:

"Future medical care and related benefits" for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of injury.

(Emphasis added.) Reference to this provision, alone, indicates that the trial court erred in including these incurred expenses in the money judgment for which the Louisiana Patients' Compensation Fund was responsible. While 2004 La. Acts No. 181, § 1 amended the above definition of future medical care and related benefits insofar as those benefits are incurred up to the time of the trial court's ruling, Act 181 was not effective at the time of the ruling in this matter. It is my view that the provision is substantive in nature and, absent contrary legislative expression, subject to prospective application only. See Sawicki v. K/S Stavanger Prince, 01-0528 (La. 12/7/01), 802 So.2d 598. See also La.R.S. 1:2; La.Civ. Code art. 6.

In addition to Section B(1)'s inclusion of accrued medical expenses in the definition of future medical care and related benefits, the Louisiana Supreme Court's statement in Kelty, 633 So.2d 1210, regarding a trial court's limited jurisdiction under the Medical Malpractice Act is again instructive. The supreme court plainly delineated that jurisdiction, stating:

[T]he statutory provisions referring to the courts clearly indicate that they are not vested with original jurisdiction or decision making responsibility over future medical care claims. The courts are authorized to perform two limited functions: (i) certification of whether a malpractice victim is a patient in need, i.e., whether the victim's damages consumed the cap limits without affording her compensation for all actual medical expenses necessitated by the malpractice, La.R.S. 40:1299.43A; and (ii) random and ephemeral housekeeping matters, viz., the court is granted a very limited continuing jurisdiction to award attorney fees when the PCF fails to pay timely, id. 43E(2), and order more frequent physical examinations of a patient, upon reasonable cause. Id. 43G(5).

Id. at 1218. I do not find that the reduction of accrued "future medical care and related benefits" to the type of money judgment decreed by the majority falls within either of these areas of jurisdiction.

Finally, I am aware of the classification of incurred medical expenses as "'future' medical expenses that have already been incurred" in Hall, 848 So.2d at 576. However, in Hall, the supreme court focused on the issue before it, namely the question of whether interest was due on past medical expenses awarded below. It does not appear that the appropriateness of reducing those incurred "future medical expenses" to a money judgment was an issue raised in that case, nor when the case was argued or considered on intermediate appeal. See Hall v. Brookshire Bros., 01-1506 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010. Rather, the arguments and the resulting discussion focused upon whether interest was to be assessed on those past due expenses.

Absent more direct authority from the supreme court than its acceptance of an uncontested judgment in Hall, I find it erroneous for the trial court to have strayed from the plain terms of positive law embodied in La.R.S. 40:1299.43(B)(1) and the supreme court's discussion of the courts' jurisdiction under the Medical Malpractice Act in Kelty. Accordingly, I would reverse the trial court's judgment insofar as it included the accrued medical and related benefits in the money judgment. I would amend the judgment to include these accrued expenses in the trial court's quantification of future medical care and related benefits.

As I find that the accrued expenses must be submitted to the LPCF for the above-reasons, I do not reach the LPCF's alternative contention that the figure awarded for accrued expenses related to past attendant care is excessive.

Interest

I agree with the majority that the judgment should be amended to more fully indicate that interest is to be paid on the $400,000 award for general damages. However, I would further amend the judgment to remove indication that interest is awarded on future medical care and related benefits which accrued prior to the time of trial. Although this figure has been incurred and, thus, interest will be owed from the date incurred, see Hall, 848 So.2d 559, I do not find that the judgment should include an award for interest on this figure as those expenses have not yet been approved by LPCF. Again, unlike in Hall, the LPCF, in the present case, contests the inclusion of future medical care and related benefits which have accrued in the money judgment. As stated above, I find the inclusion of these expenses erroneous and contrary to the dictates of La.R.S. 40:1299.43(B)(1). In my opinion, after this element of future medical care and related benefits is submitted to the LPCF and approved, as all claims for future medical care and related benefits must be, interest will be recoverable from the LPCF from the date those expenses were incurred.

General Damages

As for the remaining issue, that regarding the quantum awarded in general damages, I agree with the majority that an affirmation is required.

For these reasons, I concur in part, dissent in part.

COOKS, J., dissents in part.

I respectfully dissent from that portion of the majority opinion which holds the trial court is without jurisdiction to reduce already incurred "future" medical expenses to a money judgment. In so holding, the majority opinion breaks ranks with the clear implication of our supreme court in Hall v. Brookshire, Bros. 02-2404 (La. 6/27/03), 848 So.2d 559, and other circuit cases following Hall. See, LeRay v. Bartholomew, 03-1370 (La.App. 5 Cir. 3/30/04), 871 So.2d 492; Maxwell v. Soileau, 561 So.2d 1378 (La.App. 2 Cir.), writ denied, 567 So.2d 1124 (La. 1990) (where the second circuit included already incurred medical expenses in a money judgment awarded to plaintiff on appeal); and Fusilier v. Dauterive, 99-692 (La.App. 3 Cir. 1/10/01) (where this court awarded plaintiff $67, 876.75, plus legal interest, for medical expenses incurred after the accident.) Interestingly, the majority opinion acknowledges Hall, yet declines to follow it, arguing the issue was not really raised on appeal. The majority opinion finds:

Having noted the statutory scheme, we are, however, mindful of Hall, wherein the supreme court affirmed a judgment in which past medical expenses were reduced to a money judgment by the trial court. Classifying these past medical expenses as "'future' medical expenses that have already been incurred," the supreme court focused on the issue before it, finding interest due on those past medical expenses awarded in the trial court's judgment. Hall, 848 So.2d 575. It does not appear that the appropriateness of reducing those incurred "future medical expenses" to a money judgment was an issue raised in that case, nor when the case was argued or considered on intermediate appeal.

. . . .

Absent more direct authority from the supreme court than its acceptance of an uncontested judgment in Hall, we find it erroneous for the trial court to have strayed from the plain terms of La.R.S. 40:1299.43(B)(1) and (C) and the supreme court's discussion of the statute in Kelty.

The supreme court in Hall held interest was owed on "future" medical expenses which had already been incurred. Implicit in this holding is the correctness of the trial court decision reducing these medical expenses to a money judgment. Interpreting the Hall decision in any other way, as the majority opinion does, requires a strained interpretation which was never intended by the supreme court.

In LeRay, decided after Hall, the fifth circuit approved the trial court decision reducing already incurred medical expenses to a money judgment. The court stated:

The judgment further authorizes plaintiffs to make claims for such expenses to the LPCF, without entering a judgement on the exact sum. The only money judgment related to this issue is the award of $898,190.34 for medical expenses and related benefits already incurred. The trial court correctly made the distinction between medical expenses and related benefits incurred between the accident and the date of trial, and future medical expenses which will occur after trial. In recognizing this difference, the trial court correctly reduced the past medical expenses to a money judgment, but merely acknowledged the right of plaintiffs to bring a claim for any future medical expenses to the LPCF. We find that to be correct and within the trial court's grant of jurisdiction.

Id. at 502. (Emphasis added.)

Not only does the majority opinion represent a significant departure from other jurisprudence, it presents another procedural obstacle for a plaintiff who has already incurred considerable medical expenses. For the foregoing reasons, I respectfully dissent from the majority opinion on this point.