Hon. John W. Greene (Ret.), as Undertutor of and on Behalf of the Minor Child, Haley Jones Versus Gainsburgh, Benjamin David, Meunier & Warshauer, L.L.C., Gary B. Roth, Boxer & Gerson, LLP, Earl Keyes, Sessions, Fishman, Nathan & Israel, L.L.C., Orrill, Cordell & Beary, LLC, Vincent J. Booth and Scott Gardner ( 2020 )

SHANNON JONES AND JENNIFER JONES, NO. 19-CA-141
INDIVIDUALLY AND ON BEHALF OF THEIR C/W
DAUGHTER, HALEY JONES 19-CA-142
VERSUS FIFTH CIRCUIT
ABC INSURANCE COMPANY AND COBE COURT OF APPEAL
CARDIOVASCULAR, INC., ET AL
STATE OF LOUISIANA
C/W
HON. JOHN W. GREENE (RET.), AS
UNDERTUTOR OF AND ON BEHALF OF
THE MINOR CHILD, HALEY JONES
VERSUS
GAINSBURGH, BENJAMIN DAVID,
MEUNIER & WARSHAUER, L.L.C., GARY B.
ROTH, BOXER & GERSON, LLP, EARL
KEYES, SESSIONS, FISHMAN, NATHAN &
ISRAEL, L.L.C., ORRILL, CORDELL &
BEARY, LLC, VINCENT J. BOOTH AND
SCOTT GARDNER
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 535-525 C/W 707-435, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
January 29, 2020
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED; MOTION TO
DISMISS APPEAL DENIED
HJL
MEJ
RAC
COUNSEL FOR PLAINTIFF/APPELLANT,
JENNIFER BRUNELLE, INDIVIDUALLY AND ON BEHALF OF HER MINOR
DAUGHTER, HALEY JONES
Mary G. Knapp
COUNSEL FOR DEFENDANT/APPELLEE,
LOUISIANA PATIENT'S COMPENSATION FUND AND THE LOUISIANA
PATIENT'S COMPENSATION FUND OVERSIGHT BOARD
Conrad Meyer
Charles O. Taylor
Meghan E. Ruckman
LILJEBERG, J.
Plaintiff/Appellant, Jennifer Brunelle, seeks review of the trial court’s
October 16, 2018 judgment, which denied in part plaintiffs’ rule for contempt filed
against defendants/appellees, The Louisiana Patient’s Compensation Fund and The
Louisiana Patient’s Compensation Fund Oversight Board (collectively referred to
as “the PCF”). Ms. Brunelle also seeks review of provisions contained in the
judgment which she contends established additional requirements for her to obtain
reimbursement for custodial care benefits she provided to her daughter. For the
reasons stated more fully below, we affirm the trial court’s October 16, 2018
judgment. We also deny the motion to dismiss appeal filed by the PCF.
FACTS AND PROCEDURAL HISTORY
This matter involves a medical malpractice and products liability action
brought in 1999 by Shannon Jones and Jennifer Brunelle, individually and on
behalf of their daughter, Haley Gabrielle Jones, for severe brain injuries Haley
sustained during a February 20, 1998 heart surgery. The case entails an extensive
and complicated procedural history. The issues currently before this Court arise
from a judgment entered by the trial court on October 16, 2018, following a
hearing on a rule for contempt filed against the PCF by plaintiffs, Jennifer
Brunelle, individually and as tutor for Haley Jones, and the undertutor for Haley,
Hon. John W. Greene (ret.).1
The rule for contempt alleged, inter alia, that as of February 27, 2018, the
PCF failed to pay custodial care expenses due to Jennifer Brunelle in the amount of
$250,840.40, dating back to February 4, 2015.2 Ms. Brunelle alleged that she was
previously awarded coverage for 16 hours a day of custodial care for Haley at a
1
The appeal currently before this Court was only filed by Ms. Brunelle. The undertutor did not join in
the motion and order for appeal and did not join in the briefing submitted by Ms. Brunelle to this Court.
2
In subsequent filings, Ms. Brunelle also alleged that the PCF failed to timely pay for other future
medical benefits and equipment, such as a computer, eyeglasses and a service dog, allegedly owed to
Haley. The only benefits at issue in this appeal are the custodial care benefits.
19-CA-141 C/W 19-CA-142 1
rate of $15.00 per hour, or in the alternative, a 10 hour/6 hour split when Haley
was in school, with a reduced rate of $7.43 for the school hours. Ms. Brunelle
further alleged that she provided the PCF adjustor with time sheets in accordance
with the PCF’s administrative rules. However, she claimed that the PCF refused to
reimburse her for the custodial care expenses. The rule for contempt also sought
legal interest, court costs and attorney fees due to the PCF’s failure to pay the
amounts due within 30 days after submission of her claim for payment of the
benefits.
The PCF’s obligation to pay the custodial care benefits arose from a
judgment entered by the trial court on April 4, 2016. This judgment contained
both the terms of a consent judgment entered into between plaintiffs and the PCF,
as well as the trial court’s determination, following a trial held on March 10, 2016,
regarding the hourly rate of reimbursement Ms. Brunelle would receive for
custodial care provided to Haley.
The relevant portions of the April 4, 2016 judgment containing the
provisions consented to by the parties provide as follows:
Based on the consent of the parties;
IT IS ORDERED, ADJUDGED AND DECREED that the LCPF
has, pursuant to La. R.S. 40:1231.1 et seq., accepted total
responsibility for the actions of the perfusionist at Ochsner Hospital
who caused the injuries and damages to Haley Gabrielle Jones, a
minor, on February 17, 1998, which includes stipulating to liability,
cause and damages, including future medical damages as defined by
La. R.S. 40:1231.3.
* * *
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the PCF will provide coverage for sixteen (16) hours a day of
custodial care provided by a family member or, in the alternative,
when Haley is in school, a ten (10) hour/six (6) hour split, meaning
ten (10) hours at the full hourly rate and six (6) hours at a reduced
hourly rate.
19-CA-141 C/W 19-CA-142 2
The portion of the April 4, 2016 judgment entered by the trial court
following the trial held on March 10, 2016, provides as follows:3
After consideration of the pleadings, the memoranda, the law, the
arguments of counsel, and the evidence presented at trial;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Court determines that the hourly rate of reimbursement for
sixteen (16) hours a day of custodial care provided by a family
member to Haley shall be $15.00 per hour. When Haley is in school,
a ten (10) hour/six (6) hour split will apply, as the parties have agreed,
and the reduced hourly rate applicable to the six (6) hours Haley is in
school shall be $7.43. The Court notes that the parties have argued
for various hourly rates in this matter, with the PCF arguing that its
uniform rate of reimbursement of $7.43 should apply and the
Undertutor arguing that various rates in excess of that amount, with a
suggested minimum of $18.00, be applied. The Court believes that a
full hourly rate of $15.00 is an appropriate amount of reimbursement
for Mrs. Brunelle, especially considering the multitude and extent of
services and related benefits she provides to Haley. Although the
Undertutor argues that Mrs. Brunelle should be reimbursed separately
for case management and other services rendered to Haley, the Court
believes that the reimbursement for custodial care sufficiently covers
those services.
The PCF argued in opposition that Ms. Brunelle could not meet her burden
of proof to establish contempt. The PCF argued that the rules and regulations set
forth in the Louisiana Administrative Code govern the payment process and
required Ms. Brunelle to provide a detailed statement regarding the custodial care
services provided to Haley. Louisiana Administrative Code, Tit. 37, Pt. III,
§1917(A)(4), provides, in pertinent part, that “[a]ll claims for nursing or sitter care
payments, including those for family members providing such care, must include a
signed, detailed statement by the person rendering nursing or sitter care, setting
forth the date, time and type of care rendered to and for the patient.” [Emphasis
added.] The PCF argued that Ms. Brunelle’s time sheets failed to include any
information regarding the type of care she provided to Haley on a daily basis and
3
The record before this Court does not contain the transcript or evidence from the March 10, 2016 trial.
19-CA-141 C/W 19-CA-142 3
therefore, due to the failure to comply with this requirement, the PCF could not be
held in contempt.
Plaintiffs argued in reply that the administrative rule cited above did not
apply to the claims Ms. Brunelle submitted to the PCF because the April 4, 2016
judgment did not require compliance with this rule in order to receive payment.
Plaintiffs further argued that the administrative rule only applied to situations
where the PCF, as opposed to the trial court, determined the appropriate rate to pay
a claimant for custodial care. Plaintiffs noted that prior to rendering the April 4,
2016 judgment, the trial court conducted a trial where it heard testimony and
reviewed exhibits regarding the services Ms. Brunelle provided to Haley and based
on that evidence, determined the rate she would be paid for those services.
Therefore, plaintiffs argued that no valid reason existed for requiring Ms. Brunelle
to provide an explanation of the services she provided to Haley on a daily basis,
other than to harass Ms. Brunelle and delay payment.
On August 24, 2018, plaintiffs filed an additional memorandum in support
of the rule for contempt asking the trial court to enforce the April 4, 2016 judgment
for the same reasons previously stated. Plaintiffs also asked the trial court to
clarify the April 4, 2016 judgment by providing an order stating that Ms. Brunelle
“only be required to submit biweekly time sheets with the date and the number of
hours, if any, Haley was in school.”
The trial court held a hearing on the rule for contempt on September 10,
2018. At the beginning of the hearing the trial court held a bench conference with
counsel, which was not transcribed. After completing the bench conference, the
trial court did not conduct a full evidentiary hearing on plaintiffs’ rule for
contempt. Rather, the trial court stated that it needed to provide clarifications in
order to address several issues that had arisen regarding the execution of the April
4, 2016 judgment. The trial court then proceeded to provide its understanding of
19-CA-141 C/W 19-CA-142 4
the parties’ positions regarding the failure to pay the custodial care benefits. The
trial court stated that the time sheets submitted by Ms. Brunelle did not include any
indication regarding the type of care rendered or provided to Haley and further
noted that the PCF claimed this information was necessary pursuant to
§1917(A)(4) of the La. Admin. Code, Tit. 37, Pt. III., in order to honor the
payment requests. The trial court then recognized that the PCF was willing to
accept a “generic” or “blanket” statement regarding the services Ms. Brunelle
provided to Haley on a daily basis, and that the same statement could be copied
from day-to-day, unless there was a significant material change or deviation in the
services she was providing to Haley. The transcript indicates that the trial court
accepted the PCF’s proposal regarding the daily statement of services as a
requirement for Ms. Brunelle to obtain payment for the custodial care services.
The trial court then shifted the discussion to the plaintiffs’ concerns
regarding the tax consequences Ms. Brunelle would incur if the PCF paid all past
due amounts in a single payment. During this discussion, the trial court indicated
that Ms. Brunelle would also have to amend the previously submitted time sheets
to include a statement of the services provided:
THE COURT:
Ms. Knapp, you have - -
* * *
THE COURT:
-- indicated that -- that because of the amount of money that is
owed, when these time sheets are updated with that statement that is
going to be copied on those various entries, that you don’t want all
that money at one point because of the tax consequences to Ms.
Brunelle.
The PCF’s counsel responded that he would confer with his client, and
indicated the PCF could “work something out” if ordered to do so by the trial
court. Ms. Brunelle’s counsel then requested interest on the past due payments
19-CA-141 C/W 19-CA-142 5
and the trial court indicated that it would not order the PCF to pay interest because
the time sheets were not “properly submitted.” During this discussion, the trial
court again indicated that the previously submitted time sheets would need to be
updated with a statement of the services provided:
THE COURT:
Until [the time sheets] are updated with the statement of the services
provide (sic) or the treatment rendered, so I don’t know if it would be
appropriate to charge the PCF interest until those - - those time sheets
are - - are submitted with the appropriate details.
Ms. Brunelle’s counsel finally requested that the trial court award her client
$30,000.00 for attorney’s fees incurred as a result of the difficulties and delays
caused by the PCF with respect to the payment of custodial care benefits. Counsel
disagreed that the law and the prior judgment entered by the trial court required
Ms. Brunelle to submit a statement of the services. However, she noted that the
trial court “has given us certain guidance today which is important and easy to
follow,” and noted that she understood the trial court “wanting us to add another
paragraph” to the judgment regarding this guidance. However, she argued that
this was not a sufficient reason for the PCF to withhold all payments of the
custodial care benefits, and further argued that the PCF should have made a partial
tender while the parties attempted to resolve their disputes. The trial court stated
that it did not find the PCF acted unreasonably and declined the request for
attorney’s fees.
The trial court then ordered the PCF to submit a written judgment. In
summation, the trial court stated as follows with respect to the custodial care
payments:
THE COURT:
As far as the judgment goes, I - - I think with regard to the
forms that are submitted by Ms. Brunelle, again, it has to be an
indication of the type of service to be provided or that was provided as
required by the administrative rules so I don’t think that’s
19-CA-141 C/W 19-CA-142 6
unreasonable. Again, as far as I’m concern (sic), that can be the same
paragraph for each day until there is a significant change in the type of
service to be provided or that was provided.
* * *
It is certainly not my intention that Haley has to fight for
everything that she needs to get throughout the process that the PCF is
going to be managing this, but at the same time, I think the PCF is
entitled to have some sort of documentation supporting these pay outs.
So in that regard, that’s the way I would expect this to proceed in the
future.
The record indicates that the parties each submitted their own version of the
judgment from the September 10, 2018 hearing for the trial court’s signature. Ms.
Brunelle’s version of the judgment provided for the payment of the time sheets
submitted up to the date of the September 10, 2018 hearing in two installments to
be paid in January 2019 and January 2020, with no requirement for any statement
of services to be provided by Ms. Brunelle for these past time sheets. The
proposed judgment further provided that from September 10, 2018 forward, Ms.
Brunelle would provide time sheets that included a description of the types of
services provided to Haley.
On October 16, 2018, the trial court signed the alternative proposed
judgment submitted by the PCF, which ordered as follows:
IT IS ORDERED, ADJUDGED AND DECREED that
pursuant to LA. R.S. 40:1231.1 et seq. the LPCF shall pay petitioner,
Jennifer Brunelle, all of the amounts of custodial care owed from
February 4, 2015, to the present, for providing custodial care to Haley
Jones upon completion of the submission of timesheets pursuant to
provisions of LA. R.S. 40:1231.3 related to “Future Medical Care and
Related Benefits” and the provisions related to payment for “Nursing
Care; Sitter Care” outlined in 37 LA ADC Pt. III, §1917;
IT IS ORDERED, ADJUDGED AND DECREED that
Jennifer Brunelle or whomever is rendering the custodial care for
Haley Jones shall submit such documentation, including timesheets,
for payment of the custodial care pursuant to the provisions of LA
R.S. 40:1231.1 et. seq., the provisions of LA R.S. 40:1231.3 related to
“Future Medical Care and Related Benefits” and the provisions
related to payment for “Nursing Care; Sitter Care” outlined in 37 LA
ADC Pt. III, §1917, and pursuant to the terms of the Judgment dated
19-CA-141 C/W 19-CA-142 7
March 10, 2016,4 with said timesheets to include a description of the
types of services provided to Haley Jones on each of the days included
in the timesheet, with the LPCF allowing Mrs. Brunelle to copy the
same statements from day-to-day unless there is some significant
material deviation in the type of care and/or services provided,
wherein Mrs. Brunelle is required to document the deviation.
Ms. Brunelle filed a timely motion for devolutive appeal on December 11,
2018, which the trial court granted on December 17, 2018. On May 24, 2019, the
PCF filed a motion to dismiss the appeal for lack of jurisdiction, which was
referred to this panel to consider with the merits of the appeal.
DISCUSSION
On appeal, Ms. Brunelle raises several assignments of error with respect to
the October 16, 2018 judgment rendered by the trial court. She first argues that the
trial court erred by failing to find the PCF in contempt of its obligations to pay
custodial care benefits as set forth in the April 4, 2016 judgment and by failing to
award her interest and attorney’s fees for the PCF’s failure to pay these benefits in
a timely manner. Ms. Brunelle next argues that the trial court exceeded its
authority by granting relief in favor of the PCF ‒ that is requiring her to include a
statement of the services she provided to Haley on her daily time sheets ‒ in
response to her rule for contempt against the PCF. She contends the requirements
set forth in the administrative rule governing nursing and sitter care was not
included as part of the April 4, 2016 judgment. Finally, Ms. Brunelle argues that
the October 16, 2018 judgment signed by the trial court is not in conformity with
the trial court’s rulings during the September 10, 2018 hearing.
Jurisdiction
Before we consider the merits of Ms. Brunelle’s appeal, we must first
address the PCF’s motion to dismiss the appeal for lack of jurisdiction. The PCF
4
As noted above, the trial court held the trial to determine the hourly rate it would award Ms. Brunelle for
custodial care benefits on March 10, 2016, and took the issue under submission. It entered the written
judgment on this issue, as well as the consent provisions agreed to by the parties, on April 4, 2016.
19-CA-141 C/W 19-CA-142 8
contends that Ms. Brunelle is seeking review of the trial court’s judgment denying
her rule for contempt, which is interlocutory in nature and not immediately
appealable. See Sullivan v. Malta Park, 16-875 (La. App. 4 Cir. 1/31/17), 215
So.3d 705, 708.
Ms. Brunelle argues in response that she does not simply seek review of the
denial of the rule for contempt, but also appeals the provisions the trial court added
to the October 16, 2018 judgment regarding the statement of services she must
provide with her time sheets. She argues that, though her rule for contempt was
set on September 10, 2018, an actual contempt trial did not ensue. She contends
the hearing focused primarily on establishing the obligations she would have to
satisfy before the PCF would pay her custodial care benefits. She contends these
additional provisions substantively amended her obligations under the April 4,
2016 judgment and was a determination on the merits that constitutes an
appealable judgment. Ms. Brunelle further argues that these amendments were
unwarranted and exceeded the trial court’s authority because the only matter
pending at the September 10, 2018 hearing was the rule for contempt seeking an
order to compel the PCF to pay the past due custodial care benefits and award
attorney’s fees and costs.
The PCF responds by arguing that the October 16, 2018 judgment did not
change or alter the contents of the April 4, 2016 judgment, because this judgment
required the PCF to comply with the applicable provisions of the Louisiana
Medical Malpractice Act, La. R.S. 40:1231.1, et. seq. (“LMMA”), when
processing reimbursements for custodial care.
Appeals are favored in law, must be maintained whenever possible, and will
not be dismissed for mere technicalities. 9029 Jefferson Highway, LLC v. S & D
Roofing, LLC, 15-686 (La. App. 5 Cir. 2/24/16), 187 So.3d 522, 524. Any doubt
concerning the validity of an appeal should be resolved in favor of the appellant to
19-CA-141 C/W 19-CA-142 9
the end that an appeal can be sustained. Id. Unless the grounds for dismissal are
free from doubt, the appeal should be maintained. Morice v. Alan Yedor Roofing
and Construction, 16-532 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079.
Although an interlocutory judgment is generally not appealable, an
interlocutory judgment is subject to review on appeal when an appealable
judgment has been rendered in the case. Ellefson v. Ellefson, 616 So.2d 221, 224
(La. App. 5th Cir. 1993), writ denied, 617 So.2d 1183 (La. 1993). When an
unrestricted appeal is taken from a final judgment, the appellant is entitled to a
review of all adverse interlocutory rulings prejudicial to him, in addition to the
review of the correctness of the final judgment from which the party has taken the
appeal. Sellers v. El Paso Indus. Energy, L.P., 08-403 (La. App. 5 Cir. 2/10/09), 8
So.3d 723, 731.
In its reply in support of its motion to dismiss, the PCF cites to Rathman v.
Emerald Forest, LP, 14-64 (La. App. 1 Cir. 11/7/14), 2014 WL 5800458(unpublished opinion), to counter Ms. Brunelle’s argument that the October 16,
2018 judgment expanded the provisions of the April 4, 2016 judgment. In
Rathman, the parties entered into a consent judgment whereby the defendant
condominium association, Emerald Forest, agreed to complete certain repairs to
the plaintiff’s condominium by using the services of a specific third party
contractor, Western Weatherproofing, named in the judgment. For reasons not
fully explained in the opinion, Western Weatherproofing was not able to provide
the required services and the plaintiff filed a rule for contempt against Emerald
Forest. Following a hearing on the contempt rule, the trial court entered an order
allowing Emerald Forest 90 days to engage a new contractor. Emerald Forest
appealed the ruling and the appellate court dismissed the appeal finding that the
trial court’s decision to allow additional time to engage a new contractor was not a
substantive amendment to the prior judgment.
19-CA-141 C/W 19-CA-142 10
We find the present matter to be factually distinguishable from Rathman as
the provisions added by the trial court in the present matter add new details
regarding the information Ms. Brunelle must provide in order to comply with the
applicable administrative rule. Furthermore, contrary to the PCF’s argument, the
April 6, 2016 judgment does not contain any language regarding the procedures
and requirements for custodial care reimbursements. The only references to the
LMMA in the April 6, 2016 judgment are general citations contained in the first
paragraph of the judgment quoted above.
It is apparent from the plain language of the October 16, 2018 judgment that
the trial court did not simply deny plaintiffs’ rule for contempt and request for
attorney’s fees and costs. The trial court’s October 16, 2018 judgment added
provisions which confirmed the application of the requirements of La. Admin.
Code, Tit. 37, Pt. III, § 1917 to Ms. Brunelle’s claims for custodial care payments.
The judgment also implemented the concession offered by the PCF during the
hearing to allow Ms. Brunelle to comply with Section 1917 by using the same
statement of services from day-to-day unless there is a significant material
deviation in the custodial care provided.
The parties do not dispute that the April 4, 2016 was a final judgment that
resolved all claims existing between plaintiffs and the PCF. We find that we have
jurisdiction to review Ms. Brunelle’s appeal of the merits of these additional
substantive provisions which the trial court added to clarify and implement the
final judgment previously entered between the parties. Because the denial of the
rule for contempt is raised in connection with the appeal of a final judgment, this
Court has jurisdiction to consider all issues addressed in the October 16, 2018
judgment.
Accordingly, we deny the PCF’s motion to dismiss Ms. Brunelle’s appeal
for lack of jurisdiction.
19-CA-141 C/W 19-CA-142 11
Rule for Contempt
On appeal, Ms. Brunelle first argues that the trial court erred in denying the
rule for contempt and failing to award attorney’s fees and interest against the PCF.
She contends that pursuant to the terms of April 4, 2016 judgment, the only
information she is required to provide to the PCF in order to obtain payment for the
custodial care she provides to Haley each day is whether or not Haley was in
school that day, and if so, the hours she was in school. She further claims that if
the PCF wanted to require compliance with the provisions of La. Admin. Code,
Tit. 37, Pt. III, § 1917 before paying her for the custodial care, the PCF should
have included this provision in the consent agreement. Ms. Brunelle argues that
information regarding the care she provides to Haley each day is unnecessary as it
has no bearing on her rate of compensation set by the trial court and further notes
that she receives the same amount of reimbursement regardless of the services she
provides to Haley. She contends the PCF concocted these requirements to harass
her and unjustly delay payment.
The PCF argues in response that the trial court properly denied the rule for
contempt based on its recognition that the time sheets submitted by Ms. Brunelle
were insufficient due to their failure to comply with La. Admin. Code, Tit. 37, Pt.
III, § 1917(A)(4), which requires a signed detailed statement by the person
rendering care, setting forth the date, time and type of care rendered to and for the
patient.
We do not find that the trial court erred by refusing to hold the PCF in
contempt of court for refusing to pay the custodial care benefits awarded in the
April 4, 2016 judgment. While the April 4, 2016 judgment does not provide
specifics regarding the submission or payment of claims for custodial care or any
other benefits addressed in the judgment, it also does not exclude the application of
any provision of the LMMA or the corresponding administrative rules governing
19-CA-141 C/W 19-CA-142 12
the PCF’s administration and payment of future medical benefits awarded on
behalf of Haley Jones.
La. R.S. 40:1231.3(C) provides that, with respect to a plaintiff found to be in
need of future medical care, once a judgment is entered in favor of a plaintiff or a
settlement is reached between a plaintiff and the PCF, the plaintiff may submit
claims to the PCF for all future medical care and related benefits. See also La.
Admin. Code, Tit. 37, Pt. III, § 1907(A). La. Admin. Code, Tit. 37, Pt. III, §
1901(A) explains how the administrative rules provide for and govern the
administration and payment of future medical benefits:
The rules of Chapter 19 provide for and govern the administration and
payment by the fund of future medical care and related benefits for
patients deemed to be in need of future care and related benefits
pursuant to a final judgment issued by a court of competent
jurisdiction or agreed to in a settlement reached between a patient and
the fund.
A future medical care award is not a lump sum award payable immediately
to a plaintiff, but rather will be paid out by the PCF, pursuant to the provisions of
La. R.S. 40:1231.3, as expenses are incurred. Watkins v. Lake Charles Memorial
Hosp., 13-1137 (La. 3/25/14), 144 So.3d 944, 951. Future medical expenses are
not made executory until review and approval by the PCF. Id. A medical provider
or family member rendering medical care or providing related benefits must submit
a claim to the PCF for payment. Id; Bijou v. Alton Ochsner Medical Foundation,
95-3074 (La. 9/5/96), 679 So.2d 893, 898.
Notwithstanding, the trial court issuing the final judgment retains continuing
jurisdiction in cases where future medical care and related benefits are determined
to be needed by the patient. La. R.S. 40:1231.3(E)(1);5 Watkins, 144 So.3d at 951.
If the trial court finds the PCF unreasonably failed to pay for future medical care
5
La. R.S. 1231.3(E)(1) provides: “The district court from which final judgment issues shall have
continuing jurisdiction in cases where medical and related benefits are determined to be needed by the
patient.”
19-CA-141 C/W 19-CA-142 13
within thirty days after submission of a claim for payment of such benefits, the
court must award reasonable attorney fees to the claimant’s attorney. La. R.S.
40:1231.3(E)(2).6
As noted above, the dispute between the parties is whether Ms. Brunelle
must provide a signed statement of the services she provides to Haley each day in
accordance with La. Admin. Code, Tit. 37, Pt. III, §1917(A)(4). Section 1917
provides in its entirety as follows:
A. The fund will provide and/or fund, at the lesser of the billed
amount or the maximum amount allowed under the reimbursement
schedule, inpatient or outpatient nursing or sitter care when such care
is required to provide reasonable medical, surgical, hospitalization,
physical rehabilitation, or custodial services made necessary by the
health care provider’s malpractice, subject to the following
limitations.
1. All nursing or sitter care shall be specifically prescribed or ordered
by a patient’s treating health care provider.
2. All nursing or sitter care shall be rendered by a licensed and/or
qualified registered nurse or licensed practical nurse or by a sitter,
a member of the patient’s family or household, or other person as
specifically approved by the fund.
3. There shall be a presumption that the person rendering nursing or
sitter care is qualified if the treating health care provider issues a
statement that that person is competent and qualified to render the
nursing or sitter care required by the patient.
4. All claims for nursing or sitter care payments, including those
for family members providing such care, must include a signed,
detailed statement by the person rendering nursing or sitter care,
setting forth the date, time, and type of care rendered to and for
the patient.
B. 1. Providers of nursing or sitter care shall be funded, at the lesser of
the billed amount or the maximum amount allowed under the
reimbursement schedule. If the reimbursement schedule contains no
applicable rate for such care, then the care shall be funded at the lesser
of the billed amount or the usual and customary rate charged by
similarly licensed or qualified healthcare providers in a patient’s home
state, city, or town. However, nursing or sitter care provided by
members of the patient’s family or household will be funded at a rate
not to be less than the federal minimum hourly wage rate as may be
6
La. R.S. 1231.3(E)(2) provides: “The court shall award reasonable attorney fees to the claimant’s
attorney if the court finds that the patient’s compensation fund unreasonably fails to pay for medical care
within thirty days after submission of a claim for payment of such benefits.”
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revised from time to time regardless of the licensure or qualification
of the provider.
2. However, notwithstanding the foregoing, future nursing or sitter
care provided by members of the patient’s family or household will be
funded at a rate not to exceed the equivalent of $6 per hour plus
inflation at the annual consumer price index published by the United
States Bureau of Labor Statistics for each year beginning in
November 2001. However, at no time will the hourly rate paid be
below the federal minimum hourly wage rate as may be revised from
time to time.
C. The fund shall be entitled to periodic inspections or assessments of
the physical environment in which the nursing or sitter care is being
rendered. The fund may seek a judicial ruling to discontinue the
payments for future medical care and related benefits if, upon
inspection and recommendation of a licensed or qualified health care
provider, it is determined that the physical environment in which the
nursing or sitter care being rendered is inadequate or inappropriate
and not in the best interest of the patient.
D. The fund may seek a judicial ruling to discontinue the payments
for future medical care and related benefits if, upon a physical or
mental examination of the patient, pursuant to § 1911, and
recommendation of a licensed or qualified health care provider, it is
determined that the nursing or sitter care being rendered is inadequate
or inappropriate and not in the best interest of the patient.
[Emphasis added.]
Ms. Brunelle argues that, when considered in its entirety, one must conclude
that La. Admin. Code, Tit. 37, Pt. III, §1917 only applies to cases where neither the
custodial care provider nor the amount of reimbursement has been previously
determined by the trial court. She claims that the detailed statement of the care is
only relevant to the determination of the amount the fund will pay for nursing or
sitter care. Therefore, she contends this information is unnecessary when the trial
court sets the rate.
However, our review of La. Admin. Code, Tit. 37, Pt. III, §1917 indicates
that Ms. Brunelle’s reasoning is faulty. Section 1917(B)(2) quoted above
establishes the permitted rates for nursing or sitter care provided by a family
member when the PCF determines the rate of pay. According to the parties that
19-CA-141 C/W 19-CA-142 15
amount is currently $7.43. Therefore, contrary to Ms. Brunelle’s argument, the
PCF’s discretion regarding the rate awarded to a family member is limited and the
statement of the care and services was obviously intended to assist the PCF with
more than setting the rate of reimbursement. One could foresee, however, that a
detailed statement of the custodial care provided to a patient would be relevant to
assist the PCF in determining whether it should request an inspection or
assessment of the patient’s environment in accordance with Section 1917(C)
quoted above, or in determining whether the nursing or sitter care being provided
to the patient is inadequate, inappropriate or not in the best interest of the patient in
accordance with both Sections 1917(C) and (D).
In further support of her argument that she is not required to provide a
statement of services, Ms. Brunelle cites to the Third Circuit’s decision in Watkins
v. Barry, 06-858 (La. App. 3 Cir. 12/6/06), 946 So.2d 262, writ denied, 07-373
(La. 4/27/07), 955 So.2d 686, which affirmed a trial court’s decision to require the
PCF to pay prospective custodial care payments. The son of the plaintiff, Tina
Watkins, suffered a stroke in utero causing serious and permanent debilitating
injuries. Following a bench trial, the trial court awarded future medical and
custodial care expenses, which were itemized and quantified in accordance with
La. R.S. 40:1299.43(A)(2),7 at over $6,000,000.00. This amount included
custodial care for Ms. Watkins’ son for 12 hours a day until his eighteenth birthday
and twenty-four hours a day thereafter for the remainder of his life.8
7
La. R.S. 40:1299.43(A)(2) was redesignated in 2015 as La. R.S. 40:1231.3(A)(2), which provided then
and now as follows: “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 that will
be incurred after the date of the court’s finding and the amount thereof.”
8
In an earlier decision affirming this award, Watkins v. Lake Charles Mem’l Hosp., 04-355 (La. App. 3
Cir.12/15/04), 896 So.2d 130, writ denied, 05-145 (La. 4/9/05), 898 So.2d 1270, the opinion noted that
the trial court awarded a rate of $7.50 per hour for the custodial care provided until Ms. Watkins’ son was
18 and $10 per hour for live-in support commencing at age 18.
19-CA-141 C/W 19-CA-142 16
After the judgment became final, Ms. Watkins made a demand for payment
and the PCF paid general damages and accrued medical and custodial care
expenses incurred through the date of the trial. Ms. Watkins then demanded
payments of expenses incurred since trial and the PCF notified Ms. Watkins that
she would have to provide a signed W-9 taxpayer identification form and notes
reflecting the hours worked and duties performed by the custodial care provider.
Ms. Watkins provided the W-9 form and an affidavit explaining her son’s
disabilities had not diminished since trial. However, she argued that a record of
the hours and duties performed by the custodial care provider was not required.
After the PCF declined to pay the custodial care benefits, Ms. Watkins filed
a rule alleging the PCF arbitrarily refused to pay. The trial court ruled in favor of
Ms. Watkins and ordered the PCF to make quarterly advance payments of
custodial care expenses to a special needs trust at the hourly rate specified in the
judgment. The payment was conditioned upon the PCF’s receipt of a certification
that the child’s condition remained unchanged in the thirty days prior to the
quarterly payment.
The PCF appealed arguing that the trial court erred in requiring the PCF to
make prospective payments and erred by not requiring the plaintiff to submit any
evidence that the services were rendered. In affirming the trial court’s judgment,
the appellate court stated that “[b]y requiring the plaintiff to submit verification of
custodial care expenses, the PCF ignores the mandate of the 2003 judgment” and
further noted that the “judgment established both the need and amount of future
expenses.” Id. at 264. The appellate court recognized that the judgment was not
made executory until a claim was submitted to the PCF, but reasoned that the trial
court had jurisdiction to fashion an appropriate remedy and in administering the
claim, the PCF did not have the authority to alter the terms of the judgment. Id.
19-CA-141 C/W 19-CA-142 17
Ms. Brunelle argues that the Watkins v. Barry court concluded that because
the judgment established the need and amount of the future expenses, the PCF was
attempting to improperly alter the terms of the judgment by requiring evidence of
the hours worked and duties performed by the custodial care provider before
rendering payment. Ms. Brunelle asks this Court to follow Watkins v. Barry, and
also determine that because the April 4, 2016 judgment established the need and
amount of custodial care benefits, the PCF could not require her to provide
information regarding the services she provided to Haley.
We do not find the appellate court’s reasoning in Watkins v. Barry to be
persuasive with respect to the present matter. First, we do not agree that the
determinations regarding the need and amount of custodial care services in the
April 4, 2016 judgment precluded the PCF from requiring a statement of services
in accordance with its administrative rules prior to payment. When future medical
care and related benefits are awarded by a trial court on a malpractice claim, La.
R.S. 40:1231.3(A)(2) requires that “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.” [Emphasis added.] Therefore, every judgment awarding
future medical benefits must address these two issues. More importantly, the
Watkins v. Barry court did not mention or analyze whether the provisions of La.
Admin. Code, Tit. 37, Pt. III, §1917 applied to the judgment. Accordingly, for
these reasons and those discussed above in our analysis of the applicable law, we
decline to apply the reasoning set forth in Watkins v. Barry, supra, to the present
matter.
Ms. Brunelle also argues that in a subsequent opinion rendered by the
Louisiana Supreme Court over seven years later in a related decision, Watkins v.
Lake Charles Memorial, 13-1137 (La. 3/25/14), 144 So.3d 944, the Supreme Court
affirmed the award compelling the PCF to pay prospective benefits. Ms. Brunelle
19-CA-141 C/W 19-CA-142 18
argues that if the Supreme Court affirmed an award of prospective payments, then
it is unreasonable to order her to submit a statement of services in order to obtain
payment.
In Watkins v. Lake Charles, supra, the PCF ceased the prospective
payments for 24-hour custodial care to Ms. Watkins after a PCF employee noticed
on social media that Ms. Watkins’ son was married and no longer living with her.
Ms. Watkins filed a motion to compel the PCF to continue payments. The trial
court reduced the custodial care from 24 hours to 6 hours, but awarded Ms.
Watkins the 24-hour care that accrued prior to the hearing, as well as attorney’s
fees and costs. The appellate court affirmed and the Supreme Court granted a writ
of certiorari. Id.
We first note that the Supreme Court in Watkins v. Lake Charles, did not
actually affirm the judgment awarding the prospective payments entered by the
trial court in 2006. Id. at 962. Rather, the primary issue was whether the PCF
could discontinue the prospective custodial care payments to Ms. Watkins
according to its jurisdiction to consider claims under La. R.S. 40:1299.43(C)
(redesignated as La. R.S. 40:1231.3(C)), or whether it was required to continue to
comply with the judgment until it obtained a ruling from the trial court allowing it
to cease the prospective payments. The Supreme Court affirmed the rulings of the
trial and appellate courts, finding that once the trial court exercised its continuing
jurisdiction under La. R.S. 40:1299.43(E) (redesignated as La. R.S.
40:1231.3(E)(1)), the PCF was obliged to continue to comply with the trial court’s
judgment until it was modified or recalled by the trial court. Id. at 956. The
Louisiana Supreme Court did not address the applicability of La. Admin. Code,
Tit. 37, Pt. III, § 1917, as this was not an issue before the court.
We agree that a trial court has authority to fashion appropriate remedies to
ensure payment of necessary future medical care and related benefits, and that the
19-CA-141 C/W 19-CA-142 19
PCF must follow such a trial court judgment until it obtains a ruling for the trial
court otherwise. In the instant matter, the parties agreed to 16 hours of coverage
per day for custodial care and the trial court awarded a rate of $15.00 per hour and
a reduced rate of $7.43 when Haley is in school. However, the April 4, 2016
judgment did not include any specific provisions or guidelines regarding the
administration and payment of the custodial care claims. Therefore, considering
the applicable laws and rules discussed above, we find that the PCF correctly
applied La. Admin. Code, Tit. 37, Pt. III, § 1917(A)(4), and required Ms. Brunelle
to properly document her claims for custodial care benefits in accordance with this
provision prior to payment.
We do not find it unreasonable for Ms. Brunelle to provide a description of
the services on her time sheets in order to certify to the PCF that she is providing
those services contemplated by the trial court. The April 4, 2016 judgment
specifically indicated that the trial court awarded an amount above the set
administrative rate requested by the PCF due to numerous services Ms. Brunelle
provides to her daughter. If Ms. Brunelle’s time sheets indicate she is providing a
reduced or different level of services, this information could be relevant to the PCF
to determine whether to return to the trial court to seek a reduced rate or to seek
discontinuation of payments.
Accordingly, we do not find the trial court erred by denying plaintiffs’ rule
for contempt and by declining their request for attorney’s fees and interest.
Did Trial Court Exceed Its Authority by Specifying the Information
Ms. Brunelle Must Provide Regarding the Custodial Care Services?
In her next assignment of error, Ms. Brunelle argues the trial court exceeded
its authority by adding provisions requiring her compliance with La. Admin. Code,
Tit. 37, Pt. III, § 1917, when this issue was not procedurally before the trial court.
She contends the PCF did not file any rules to modify the April 4, 2016 judgment
19-CA-141 C/W 19-CA-142 20
and that the only matter pending before the trial court at the September 10, 2018
hearing was the rule for contempt. She argues that if the PCF wished to require
time sheets with details regarding the services provided, then it was obligated to
file its own rule to modify the April 4, 2016 judgment.
We disagree that the trial court exceeded its authority because plaintiffs
invited the trial court to provide guidance regarding the information Ms. Brunelle
must provide to the PCF regarding custodial care. As noted above, in the August
24, 2018 memorandum in support of the rule for contempt, plaintiffs requested and
invited clarification from the trial court regarding the information Ms. Brunelle
was required to provide to the PCF in order to receive custodial care payments.
Furthermore, plaintiffs’ counsel did not object to the trial court providing
additional guidance during the September 10, 2018 hearing on the rule for
contempt. Counsel noted that the trial court “has given us certain guidance today
which is important and easy to follow,” and noted that she understood the trial
court “wanting us to add another paragraph” to the judgment regarding this
guidance.
Obviously, Ms. Brunelle does not agree with the guidance provided by the
trial court. However, after reviewing the pleadings submitted by the parties and
the transcript from the hearing on the rule for contempt, we do not find that the
trial court exceeded its authority by adding the provisions regarding the statements
Ms. Brunelle must provide to the PCF to receive custodial care payments.
Did the October 16, 2018 Judgment Conform With the Transcript?
Ms. Brunelle also argues that the trial court exceeded its authority by issuing
a judgment that does not conform to the transcript. Ms. Brunelle does not point to
any specific provisions of the April 4, 2016 judgment that are not in compliance
with the transcript. However, she does note that she submitted a proposed
19-CA-141 C/W 19-CA-142 21
judgment to the trial court, which she contends correctly set forth the trial court’s
rulings evidenced by the transcript.
As explained above, Ms. Brunelle submitted an alternative judgment that
provided for the payment of the accrued custodial care benefits in two installments
and further provided that the requirement to provide the statement of services
would only apply prospectively from the date of the September 10, 2018 hearing.
However, the trial court did not order the past custodial care benefits to be paid in
two installments. Rather, the trial court instructed the PCF’s counsel to work with
plaintiffs’ counsel to resolve this issue. In addition, as quoted above, the trial court
stated on two different occasions during the hearing that Ms. Brunelle would need
to update the invoices previously submitted to the PCF for payment with a
statement of the services provided.
Accordingly, we find that Ms. Brunelle assignment of error on this issue is
without merit.
DECREE
Based on the foregoing, we affirm the trial court’s October 16, 2018
judgment and deny the PCF’s Motion to Dismiss Appeal.
AFFIRMED; MOTION TO
DISMISS APPEAL DENIED
19-CA-141 C/W 19-CA-142 22
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-141
C/W 19-CA-142
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
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