Opinion
Civ. No. 99-504 c/w 99-1345, SECTION: "D" (3).
February 23, 2000.
Before the court is a Motion to Dismiss or Alternatively Motion to Stay filed by Defendant, Ellen McGriff, R.N. ("McGriff"). Plaintiff, Jeffrey Wallace ("Wallace"), opposes this motion. The motion is before the court on briefs without oral argument.
Having considered the memoranda of counsel and the applicable law, the court finds that Defendant's motion should be denied.
Background
This case involves three health care providers, Terry Dean King, M.D., West Jefferson Medical Center and Ellen McGriff, R.N. Plaintiff originally filed this action against Dr. King, and West Jefferson Medical Center. By Minute Entry dated April 7, 1999, this court held that because the medical review panel established in this case had automatically dissolved without extension, Plaintiff was permitted to proceed with malpractice claims against Dr. King and West Jefferson Medical Center.
McGriff is mentioned in Plaintiff's February 12, 1999 complaint as an employee of the named Defendant West Jefferson Hospital. This complaint alleges various acts of malpractice by McGriff. In a Minute Entry, dated April 21, 1999, this court held that the allegations in the February 12, 1999 complaint were substantially different from the original complaint filed with the Louisiana Patients Compensation Fund ("the Fund") in 1997. The February 1999 complaint contained extensive references to alleged wrongdoings by McGriff for which the Plaintiff alleged that West Jefferson was vicariously liable. Therefore, because these allegations were not included in the original complaint filed with the Fund, and had not been brought before the first medical review panel, West Jefferson Medical Center was entitled to have those additional claims reviewed by a second medical review panel.
The issue before the court today is whether Defendant Ellen McGriff, R.N. is individually qualified under the Louisiana Medical Malpractice Act ("the Act") and thus entitled to have the claims against her reviewed by a medical review panel pursuant to the Act. For the following reasons the court finds that she is not entitled to this review.
Analysis
The purpose of the Louisiana Medical Malpractice Act is to limit the liability of health care providers who qualify under the Act by maintaining the required basic malpractice insurance and by paying a surcharge to the Patients Compensation Fund. The provider and his/her insurer are then only liable to the extent provided in the Act for as long as the provider remains "qualified." Further, claims against a qualified health care provider are subject to review by a medical review panel prior to action in the courts. Qualification under the Act
See Sewell v. Doctors Hospital, 600 So.2d 577 (La. 1992).
La. R.S. 40:1299.47B(1)(a)(I) (Supp. 2000).
Qualification under the Act is a two-step process. As Louisiana Revised Statute 40:1299.42 states:
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 by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to 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.
La. R.S. 40:1299.42 (West 1992). Thus, for a provider to be qualified he/she must 1) file proof of financial responsibility with the board, and 2) pay the required surcharge.
West Jefferson Medical Center
West Jefferson Medical Center is a qualified health care provider under the Act. The Certificate of Enrollment from the Patients Compensation Fund clearly states that West Jefferson Medical Center, West Jefferson General Hospital is qualified under the Act. The certificate indicates that this health care provider is self insured, has filed proof of financial responsibility and paid the required surcharge to the Fund.
See Exhibit "A" attached to Defendant's Memorandum in Support Motion to Dismiss or Alternatively Motion to Stay.
Counsel for Defendant McGriff notes that "[t]he acts of malpractice are alleged to have occurred during the course and scope of McGriff's employment at West Jefferson General Hospital." Counsel argues that the statement "Ellen McGriff, R.N. is covered under the above policy" on the Certificate of Enrollment from the Louisiana Patients Compensation Fund includes coverage for Defendant McGriff's individual liability for acts committed by her.
See Defendant's Memorandum in Support Motion to Dismiss or Alternatively Motion to Stay at page 1.
See Exhibit "A" attached to Defendant's Memorandum in Support Motion to Dismiss or Alternatively Motion to Stay.
Contrary to plaintiff's argument, this statement does not indicate that Defendant McGriff is individually qualified under the Act. Rather, this statement indicates that should West Jefferson be held vicariously liable for Defendant McGriff's acts, because West Jefferson is a qualified health care provider, such liability would be subject to the protection of the Act.
There is no evidence that Defendant McGriff is individually qualified under the Act. The Certificate of Enrollment does not indicate that West Jefferson provided proof of financial responsibility and paid the appropriate surcharge on Defendant McGriff's behalf in order to individually qualify her under the Act.
Defendant McGriff
Nor has Defendant McGriff met her burden of proving that she is individually qualified under the Act. There has been no evidence to indicate that Defendant McGriff herself filed proof of financial responsibility and paid the required surcharge to the Patients Compensation Fund.
The burden is on a defendant to show that they are immune from suit as qualified health care providers under the Act. Goins v. Texas State Optical, 463 So.2d 743, 744 (La.App. 4th Cir. 1985).
Plaintiff is correct in applying the reasoning of Jones v. Crow. In Jones, the court found that a nurse, employed by a physician, was not individually qualified under the Act because she had not shown proof of financial responsibility and had not paid the required surcharge to the Patients Compensation Fund. Defendant's distinction that the nurse in Jones was employed by a physician and the nurse in this case was employed by a hospital is insignificant.
633 So.2d 247 (La.App. 1st Cir. 1993).
It is clear that in order to be certified as a health care provider under the Act and thereby receive the protections of the Act, an individual must follow certain procedures. An individual must 1) file proof of financial responsibility with the board, and 2) pay the required surcharge. Defendant McGriff has not done so.
Accordingly,
IT IS ORDERED that Defendant's Motion to Dismiss or Alternatively Motion to Stay be and is hereby DENIED, and thus Plaintiff may proceed with his malpractice claims against Defendant McGriff without the necessity of review by the medical review panel.