Opinion
NO. 2022 CA 0053.
11-04-2022
STRATEGIC MEDICAL ALLIANCE II v. STATE of Louisiana, Office of Risk Management and Sedgwick (Employee: Ricardo London).
WOLFE, J.
This appeal is one of three concerning the same issue. Claimant-appellant, Strategic Medical Alliance II, LLC ("SMA"), appeals the judgment of the Office of Workers' Compensation ("OWC"), that dismissed with prejudice SMA's claims against employer-appellee, the State of Louisiana ("State"), based on a finding that SMA did not have a right of action under the Louisiana Workers' Compensation Act ("LWCA"). For the reasons set forth herein and following the reasoning in a related appeal, we affirm.
One of the other appeals was recently decided by another panel of this court that affirmed the Office of Workers' Compensation judgment finding that Strategic Medical Alliance II, LLC, did not have a right of action under the Louisiana Workers' Compensation Act. See Strategic Medical Alliance II v. State of Louisiana, Office of Risk Management, 2022-0052 (La. App. 1st Cir. 10/6/22), 353 So.3d 839, Another appeal, Strategic Medical Alliance II v. State of Louisiana, Office of Risk Management, 2022-0051 (La. App. 1st Cir. 11/04/22), ___ So.3d ___, 2022 WL 16707127, is currently pending before another panel of this court. All parties are the same except for the names of the employees that underwent surgery and the physicians that performed the surgeries. The issues presented in all three appeals are identical.
BACKGROUND
On November 28, 2018, SMA filed a disputed claim for compensation with the OWC, contending that it is a health care provider entitled to recover the costs of spine implants it provided to Dr. C. Chambliss Harrod at the Spine Hospital of Louisiana and that were used during an authorized surgery on employee, Ricardo London. On February 1, 2019, SMA filed an amended disputed claim listing the State as London's employer and the Office of Risk Management as the insurer. The State is the only remaining defendant relevant to this appeal, as all of SMA's claims against the Office of Risk Management and the original named insurer, Sedgwick Claims Management Services, Inc., were dismissed. SMA claims that it is entitled to payment from the State in the amount of $50,310.00, plus penalties, costs, and attorney fees for failure to make payment for the spine implants that were required and provided for London's surgery.
The State filed several exceptions along with its answer to SMA's claims, including an exception of no right of action arguing that SMA was not a qualified health care provider. SMA opposed the exceptions, insisting that as the supplier of implants selected by the surgeon, Dr. Harrod, and used during London's approved surgery, it has a right of action as the agent of Dr. Harrod. At a January 17, 2020 hearing on several exceptions, the State argued that SMA was not a health care provider as set forth in the LWCA, La. R.S. 23:1021, et seq., and, therefore, could not recover reimbursement payments for the materials it distributed to Dr. Harrod that were implanted during London's surgery. The State also asserted that SMA's pleadings/attachments lacked any facts to support the position or explain how SMA is an agent of the physician. SMA countered that due to its role as supplier of necessary materials and its "close" and "tight" relationship with the treating physician and the facility where the surgery was performed, it was obvious that SMA was an agent of the treating physician and was entitled to reimbursement for the implanted materials. Because SMA's claim and attachments did not reveal any actual facts that supported an agency relationship or a written contract between SMA and the physician and/or hospital, the OWC granted the exception of no right of action in favor of the State. However, SMA was given thirty days to amend its pleadings/attachments to prove the agency relationship.
The February 21, 2020 judgment maintained the exception of no right of action to dismiss the claims of SMA against the State, "because [SMA] admits that it is not a healthcare provider as defined by the [LWCA]. [SMA] is granted thirty (30) days ... to amend the suit to specifically outline facts to support its claim that it has a cause and/or right of action under the [LWCA]. If [SMA] fails to amend within the thirty (30) day time period, the suit is dismissed, with prejudice, by operation of law."
SMA filed its amended disputed claim for compensation to which it attached the affidavit of its corporate representative, Rachel McEnary, who stated that SMA "works with doctors to provide supplies, devices, or implantation during surgeries" and "on occasion, now and in the past, [SMA] has agreed to associate or contract with medical providers, to deliver/provide some supplies, devices, or implantation in accordance with determined medical necessity[.]" She further stated that "there is no requirement of form for the relationship between the health care provider and [SMA] as such this contract for [SMA] to provide supplies ... has not been in written form[.]" The State filed a motion to dismiss, which was set for hearing on March 12, 2021.
The State challenged the timeliness of SMA's amended pleading, and the OWC found it was not timely filed. However, SMA has not appealed that determination.
At the conclusion of the hearing, the OWC determined that SMA's amended pleading failed to allege sufficient facts to establish that Dr. Harrod had turned over to SMA his right to collect payment for the supplies he used during the surgery and, therefore, SMA had no right of action against the State. In oral reasons, the OWC stated that the "affidavit of the agent is not sufficient to prove the principal/agent relationship. And the Court was waiting on [an] affidavit from the physicians... the principals, or at least the clinics or the doctors involved, ... and that was the reason that the 30 days was given ... to allow time for the doctors to execute affidavits and to be submitted to the court to show the agency relationship. That was not done, therefore, the [exception of no right of action is] maintained. And the [case is] dismissed with prejudice." A judgment was signed on May 21, 2021. SMA appealed.
DISCUSSION
As we previously noted in footnote one, the issue before us in this appeal has already been addressed in one opinion with another appeal. See Strategic Medical Alliance II, 353 So.3d 839, 845-46. In that case, this court found that the allegations and statements made in the affidavit filed by the same SMA corporate representative, Rachel McEnary, are "woefully short to constitute allegations of a contract of mandate" between the physician and SMA for the surgical supplies used in the employee's surgery. Id. For the same reasons thoroughly discussed in the first Strategic Medical case, we likewise find in this appeal that SMA has failed to allege any facts in its disputed claim, including the attachments, averring that Dr. Harrod, as a principal, conferred authority on SMA as his agent to collect reimbursement payments for the materials used during London's surgery. Thus, SMA has failed to allege the requisite agency relationship with Dr. Harrod that is necessary to support a right of action in its favor against the State. Therefore, we find that the OWC correctly dismissed SMA's claims.
As we did in the first Strategic Medical Alliance II, 353 So.3d 839, 842 n. 7, we deny as moot the State's motion to strike SMA's complaint pointing out for the first time in its appellate reply brief the lack of a written 2022-0231 (La.App. 1 Cir. 11/4/22) pleading supporting the exception of no right of action. Pursuant to La. Code Civ. P. art. 927(B), either the OWC or the appellate court may, on its own motion, notice that the claimant does not have a right of action.
Further, since SMA failed to aver facts to support its right of action after the OWC permitted an amendment of its pleading, we find no error in the dismissal of SMA's claims with prejudice. When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the plaintiff fails to comply with the order to amend, the claim shall be dismissed. See La. Code Civ. P. art. 934.
CONCLUSION
For the stated reasons, the Office of Workers' Compensation judgment is affirmed. This memorandum opinion is issued in accordance with Uniform Rules — Courts of Appeal, Rule 2-16(B). Costs of this appeal are assessed to claimant-appellant, Strategic Medical Alliance II, LLC.