The opinion
Judgment rendered April 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 55,471-CW
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
CYNTHIA CANNADY Applicant
versus
DR. WILLIAM YATES AND Respondents
MARY STELL, NP
*****
On Application for Writs from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2020-2380
Honorable Jefferson Bryan Joyce, Judge
*****
SANGISETTY LAW FIRM LLC Counsel for Applicant
By: Ravi Kishan Sangisetty
William D. Boyles
Amanda Joy Olmsted
GACHASSIN LAW FIRM Counsel for Respondents,
By: Barry John Boudreaux Dr. William Yates
Mary Stell, NP
McNEW KING & LANDRY LLC Counsel for
By: Brady Dean King, II Defendants/Intervenors,
Louisiana Patients
Compensation Fund
Louisiana Patients
Compensation Fund Oversight
Board
LIZ MURRILL Counsel for Respondent,
Attorney General State of Louisiana
LAURYN ANNELIESE SUDDUTH
OLIVIA GRACE BOUDREAUX
Assistant Attorneys General
*****
Before STONE, THOMPSON, and HUNTER, JJ.
HUNTER, J.
In this medical malpractice action, the trial court granted a motion to
compel an independent medical examination (“IME”) filed by the Patient’s
Compensation Fund. The court also denied plaintiff’s petition for a
preliminary injunction to enjoin the IME. This Court granted plaintiff’s writ
application to review the correctness of the trial court’s ruling. After further
review, we conclude the judgment below does not require the exercise of
this Court’s supervisory authority. Accordingly, we recall the writ as
improvidently granted, and we affirm the trial court’s ruling.
FACTS
On September 8, 2020, plaintiff, Cynthia Cannady, filed a medical
malpractice lawsuit against defendants, Dr. William Yates (“Yates”) and
Mary Stell, N.P. (“Stell”). Specifically, plaintiff alleged Yates and Stell
breached the standard of care by failing to timely diagnose her with spinal
cord compression, and the delayed diagnosis resulted in permanent
neurological damage which will require treatment for the rest of her life.
The parties stipulated as to causation prior to trial, and per the stipulation,
defendants did not introduce any evidence as to causation or damages.
A jury trial was held March 21-25, 2022, during which video
testimony of plaintiff’s treating neurologist, Dr. Donald Gervais, was played
for the jury. Dr. Gervais testified as to plaintiff’s future medical needs and
provided an estimate of the costs. At the conclusion of the trial, the jury
rendered a verdict in favor of plaintiff and awarded damages as follows:
$500,000 in general damages, $250,000 in past medical expenses, and
$13,500,000 in future medical expenses. On April 19, 2022, the trial court
signed a final judgment in accordance with the jury’s verdict. Subsequently,
the court signed another judgment which reads, in pertinent part:
Pursuant to La. R.S. 40:231.2(B)(2), the liability of Defendants,
Dr. William Yates and Mary Stell, NP, is reduced to the
statutory cap of $100,000.00 per Defendant, for a total of
$200,000.00, with the remainder to be paid in accordance with
La. R.S. 40:1231.2(B)(3)(a).[1]
Since the judgment exceeded $100,000, the Patient’s Compensation Fund
(“PCF”) is responsible for paying the remainder of plaintiff’s award.
On November 16, 2022, the parties filed a “Partial Satisfaction of
Judgments.” Within this pleading, plaintiff acknowledged satisfaction of the
trial court’s judgments as to the amounts awarded, including general
damages, past attendant care, past medical care expenses or costs, court
costs, and judicial interest. Plaintiff also reserved her right to seek payments
for medical care and related benefits incurred after April 19, 2022. The PCF
acknowledged plaintiff’s reservation of rights and asserted the following:
Nothing in this Partial Satisfaction of Judgment alters or waives
Cynthia Cannady’s right to collect or otherwise seek
reimbursement for future medical care and related benefits from
the Patient Compensation Fund in accordance with the verdict
and related judgments rendered in this matter to be submitted,
processed, and paid in accordance with the Louisiana Medical
1
La. R.S. 40:1231.2(B) provides, in pertinent part:
***
(2) A health care provider qualified under this Part is not liable for an
amount in excess of one hundred thousand dollars plus interest thereon
accruing after April 1, 1991, and costs specifically provided for by this
Paragraph for all malpractice claims because of injuries to or death of
any one patient[.]
(3) (a) Any amount due from a judgment or settlement or from a final
award in an arbitration proceeding which is in excess of the total
liability of all liable health care providers, as provided in Paragraph (2)
of this Subsection, shall be paid from the patient’s compensation fund
pursuant to the provisions of R.S. 40:1231.4(C).
***
2
Malpractice Act and any applicable provisions including, but
not limited to, La. Admin Code Tit 37, Part III, § 1901, et seq.
Soon thereafter, plaintiff sought to renovate her home to make it
mobility assessible. On December 10, 2022, Micah Shelton, with Green
Hammer, LLC, a licensed contractor, issued an estimate for the cost of
handicap accessibility and scooter mobility renovations to plaintiff’s home,
estimating the renovations would cost $207,945.97. On the same date,
Shelton issued an invoice to plaintiff amounting to $13,565.00, which also
contained a fee schedule, and a check in that amount was issued to Green
Hammer, LLC, on December 14, 2022.
On December 12, 2022, plaintiff sent a “Notice of Claim for Future
Medical Care and Related Benefits” to the PCF’s Board, pursuant to La.
Admin. Code Tit. 37, Pt. III, §1909. Within this notice, plaintiff requested
payment in the amount of $496,179.09, for expenses for 2023, including, but
not limited to, handicap renovations, attendant care, nursing care, a handicap
accessible van, and temporary medical transportation, all of which were
recommended in Dr. Gervais’ future medical needs report introduced at trial.
On December 16, 2022, plaintiff received an e-mail in response to her
notice, which reads as follows in pertinent part:
***
Allow me to remind everyone the PCF pays medicals as
incurred. Providers normally bill us directly, which allows us to
have the bills fee scheduled pursuant to Title 37’s
promulgation.
We require an actual physician’s order or script for attendant
care, nursing care, DVE orders and vehicle requests. The expert
report, which I do not have in our file, does not meet the
criteria.
***
Ms. Cannady’s claim for future medicals has been assigned to
Torey Powers and he has forwarded her proper letters and ID
cards to present at her medical appointments. I encourage Ms.
3
Cannady to have her known providers contact Mr. Power
directly to set up direct billing[.]
***
On January 4, 2023, the PCF denied plaintiff’s claim via e-mail
through its counsel and informed plaintiff her notice was premature and
would not be forwarded to General Counsel. On January 14, 2023, Dr.
Gervais signed 26 prescriptions/orders for plaintiff’s equipment, care, and
treatment; the prescriptions and orders were forwarded to the PCF.
On January 26, 2023, plaintiff’s counsel was informed via telephone
the PCF was questioning the causation between the injuries she suffered and
the future medical treatments awarded to her by the jury pursuant to Dr.
Gervais’ medical report.2 Subsequently, counsel for the PCF sent plaintiff
another e-mail which reads, in relevant part:
***
[T]he “orders” are signed, electronically. However, many are
vague and the need for house renovations, etc. *** are not
specific.
***
Given all this, the Fund would like to exercise its right to have
an [independent medical examination (“IME”)] conducted. As
soon as a physician is retained, we will comply with §1231.3 by
providing the proper notice[.][3]
2
Thereafter, plaintiff sent an e-mail explaining the parties had stipulated as to
causation. Additionally, plaintiff alleged she subsequently contacted at least 14 potential
attendant care providers to determine if any of them could accept payment from the PCF
after the services were rendered rather than on the date of service. Ultimately, Body and
Soul, Inc. was the only attendant care provider who agreed to provide services, and the
PCF agreed to pay after the services were rendered. According to plaintiff, a
representative from Body and Soul informed her the company was prepared to move
forward with assessing their ability to service plaintiff; however, the company was
constrained due to correspondence from the employee handling the claim on behalf of the
PCF, which expressed the following: (1) the PCF would be taking bids for plaintiff’s
attendant care, and (2) the PCF needed more clarity from plaintiff’s physicians as to the
amount and types of services needed.
3
According to plaintiff, on February 10, 2023, the PCF’s counsel informed her,
via telephone, some home health agencies had reported they were experiencing
difficulties with the home health orders due to “vagueness,” and the PCF would have
difficulty assessing and paying for any of the requested medical expenses and related
benefits until the IME is performed.
4
On March 6, 2023, counsel for the PCF sent plaintiff an e-mail requesting
her availability for an IME between March through May, to be conducted by
a Shreveport orthopedist, Dr. Pierce Nunley.
On March 15, 2023, the PCF filed a “Motion to Compel a Physical
Exam Pursuant to La. Admin. Code Title 37, PT III, § 1911.”4 The PCF
prayed for an order compelling plaintiff “to submit to a medical examination
to determine her continued need for future medical care and related benefits,
and the scope and nature thereof, that might be necessitated by the medical
negligence of Dr. William Yates.” Within the memorandum, the PCF
acknowledged the jury’s determination concerning plaintiff’s future care:
however, as set forth in the “Partial Satisfaction of Judgment,” the PCF
asserted plaintiff’s claims must be “submitted, processed, and paid in
accordance with the Louisiana Medical Malpractice Act” (“MMA”) and
related regulations.” The PCF also cited La. Admin. Code Tit. 37, Pt. III, §
1907(A), which reads as follows in pertinent part:
A patient, who is deemed to be in need of future medical care
and related benefits pursuant to a final judgment issued by a
court of competent jurisdiction…may make a claim to the fund
through the board for future medical care and related benefits as
incurred by the patient and made necessary by the health care
provider’s malpractice.
4
37 La. Admin. Code Pt III, 1911 provides, in pertinent part:
A. The fund shall be entitled to have a patient submit to a physical or
mental examination, by a health care provider of the fund’s choice, from
time to time, to determine the patient’s continued need of future medical
care and related benefits, or the level of medical care needed[.]
***
5
Alternatively, the PCF prayed for a declaratory judgment providing it is not
compelled to reimburse or pay for any medical expenses until an IME takes
place and the proper claim procedure has been followed and satisfied.5
Following a hearing, the trial court signed an order which reads as
follows:
***
After considering the parties’ briefs, argument, the law, and for
the reasons more fully set forth in open court, this Court finds
that the Motion to Compel an IME brought by the PCF is well
founded.
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the Motion to Compel an IME is hereby
granted and Plaintiff’s Preliminary Injunction to enjoin an IME
is denied. Plaintiff, Cynthia Cannady, is therefore hereby
ordered to submit to an IME to be conducted in accordance
with the Louisiana Medical Malpractice Act including, but not
limited to, LSA-R.S. 40:1231.3(G) and La. Admin Code, Tit. 37,
Part III, §1911.
5
In response, plaintiff filed a “Petition for Temporary Restraining Order,
Preliminary Injunction, Permanent Injunction and Declaratory Relief.” The petition was
filed in the Nineteenth Judicial District Court, East Baton Rouge Parish, because the PCF
is a state agency, and plaintiff alleged the “unlawful request for an IME,” occurred in
East Baton Rouge Parish, pursuant to La. R.S. 13:5104(A). On March 22, 2023, the
Nineteenth Judicial District Court issued a temporary restraining order, temporarily
enjoining the PCF from performing an IME on plaintiff from the date of the order and
continuing for a period of ten days after the signing of the order.
Subsequently, the PCF filed an “Exception of Venue and No Cause or Right of
Action and in Opposition to Plaintiff’s Motion for Preliminary Injunction” and a
memorandum in support, in the Nineteenth Judicial District Court. The PCF asserted
jurisdiction was proper in the Fourth Judicial District Court pursuant to La. R.S.
40:1231.3(E)(1). Following a hearing, the trial court granted the PCF’s exception of
improper venue, and the matter was transferred to the Fourth Judicial District Court. The
respective parties adopted their previous pleadings filed in the Nineteenth Judicial
District Court, and a hearing was set for June 14, 2023.
Because plaintiff’s petition contained a constitutional challenge, the 19th Judicial
District Court served the attorney general with a copy of plaintiff’s petition and rule to
show cause. However, plaintiff did not technically challenge the constitutionality of La.
R.S. 40:1231.3(G), but rather the constitutionality of the actions of the PCF as applied to
her.
On May 19, 2023, a Rule to Show Cause was filed and Assistant Attorney
General (“AAG”) Lauryn Sudduth was ordered to appear at the Ouachita Parish
Courthouse concerning this matter. On June 5, 2023, a “Louisiana Attorney General
Memorandum In Support of the Constitutionality of La. R.S. 40:1231.3(G)” was filed.
Within this memorandum, the AAG prayed that the trial court refrain from ruling on the
constitutionality of the challenged statute due to the claim not being properly brought
before the court. The AAG also noted she did not intend to appear for oral argument and
submitted the memorandum on the merits in lieu of oral argument.
6
Plaintiff filed an application for supervisory review, and by order
dated October 5, 2023, this Court granted plaintiff’s application.
DISCUSSION
Plaintiff contends the trial court violated her constitutional right to
access to the courts and due process by requiring her to undergo an IME.
She argues the parties stipulated to causation prior to trial, and by requesting
an IME, the PCF is seeking to redetermine whether her condition was caused
by medical malpractice. She maintains Art. I § 1 of the state Constitution
provides, “[A]ll government . . . is instituted to protect the rights of the
individual and for the good of the whole. Its only legitimate ends are to
secure justice for all . . . protect the rights, and preserve the happiness and
general welfare of the people.” Plaintiff further takes issue with the PCF’s
claim that it is acting as a prudent administrator by requesting an IME;
however, the administrative code does not define the term, “prudent
administrator,” and the trial court violated her constitutional rights by
making “the PCF the sole authority on what it means to act as a ‘prudent
administrator.’”
La. R.S. 40:1231.3 provides, in relevant part:
***
B. (1) “Future medical care and related benefits” for the
purpose of this Section means all of the following:
(a) 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, incurred after the
date of the injury up to the date of the settlement, judgment, or
arbitration award.
(b) All reasonable medical, surgical, hospitalization, physical
rehabilitation, and custodial services and includes drugs,
prosthetic devices, and other similar materials reasonably
necessary in the provisions of such services, after the date of the
7
injury that will be incurred after the date of the settlement,
judgment, or arbitration award.
(2) “Future medical care and benefits” as used in this Section
shall not be construed to mean non-essential specialty items or
devices of convenience.
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
that will be incurred after the date of the response to the special
interrogatory by the jury or the court’s finding *** 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.
***
A future medical care award is not a lump sum award payable
immediately to a plaintiff. Rather, a future medical care award will be paid
out by the PCF, as expenses are incurred. Watkins v. Lake Charles Mem.
Hosp., 13-1137 (La. 3/25/14), 144 So. 3d 944; Hanks v. Seale, 04-1485 (la.
6/17/05), 904 So. 2d 662; Hall v. Brookshire Bros, Ltd., 02-2404 (La.
6/27/03), 848 So. 2d 559. A patient, who is deemed to be in need of future
medical care and related benefits pursuant to a final judgment issued by a
court of competent jurisdiction may make a claim to the PCF for future
medical care and related benefits as incurred by the patient and made
necessary by the health care provider’s malpractice. 37 La. Admin. Code Pt
III, 1907; Jones v. ABC Ins. Co., 19-141 (La. App. 5 Cir. 1/29/20), 290 So.
3d 317.
In Kelty v. Brumfield, 633 So. 2d 1210, 1216-19 (La. 1994), the
Louisiana Supreme Court reviewed the history of the provisions set forth in
the MMA. The Court described, at length, the function of the PCF with
regard to future medical care and related benefits as follows:
8
[The MMA] 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 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.
***
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.
***
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; 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, and order more frequent
physical examinations of a patient, upon reasonable cause.
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,
9
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.
(Internal footnote omitted; citations omitted; italicized emphasis in original;
bold emphasis added).
Further, the more specified duties, obligations, and responsibilities of
the PCF and its oversight board are set forth in the Title 37 of the Louisiana
Administrative Code. 37 La. Admin. Code Pt III, 1905, provides:
A. The fund shall provide and/or fund the cost of all future
medical care and related benefits in the amounts provided
herein, after the date of the accident and continuing as long as
medical or surgical attention is reasonably necessary, that are
made necessary by the health care provider’s malpractice,
pursuant to a final judgment issued by a court of competent
jurisdiction or as agreed to in a settlement reached between a
patient and the fund, unless the patient refuses to allow the
future medical care and related benefits to be furnished.
B. The fund acknowledges that a court is required neither to
choose the best medical treatment nor the most cost-efficient
treatment for a patient. The intent of Chapter 19 is to
distinguish between those devices which are reasonably
necessary to a patient’s treatment and those which are devices
of convenience or non-essential specialty items for a patient,
and to provide for the maximum allowable reimbursement for
those necessary future medical care and related benefits.
However, the fund shall not pay for repairs for or replacement
of durable medical equipment, vehicles or residential
modifications or renovations.
C. Pursuant to the Act, the board has been, expressly and/or
implicitly, vested with the responsibility and authority for
the management, administration, operation, and defense of
the fund and, as a prudent administrator, it must insure
that all future medical care costs and related benefits are
reasonable and commensurate with the usual and
customary costs of such care in the patient’s community.
Therefore, the amount paid by the fund for future medical care
and related benefits shall be the lesser of the amount billed for
10
said care or benefit or the maximum amount allowed under the
reimbursement schedule.
D. Payments for future medical care and related benefits shall
be paid by the fund without regard to the $500,000 limitation
imposed in R.S. 40:1299.42 [now R.S. 40:1231].
(Emphasis added).
We have reviewed this record, the relevant statutory provisions,
regulatory guidelines, and jurisprudence. We find no merit to plaintiff’s
argument the PCF’s request for her to submit to an IME is a violation of her
constitutional rights. The crux of plaintiff’s contention is that the PCF is
seeking to circumvent the jury’s award and the final judgment by relitigating
the issue of damages, and ultimately, causation. However, a review of this
record reveals the PCF has acknowledged the jury’s verdict and award in
each of its pleadings and is merely seeking to fulfill its obligation to “insure
that all future medical care costs and related benefits are reasonable and
commensurate with the usual and customary costs of such care in the
patient’s community.” There is no showing the PCF is attempting to deprive
plaintiff of her entitlement to future medical care and related benefits or
deny her access to the courts.
Our review of this record reveals this dispute hinges on plaintiff’s
failure to adhere to the proper procedures as set forth in the MMA and the
Administrative Code. Specifically, in plaintiff’s December 12, 2022 “Notice
for Future Medical Care and Related Benefits,” she requested a lump sum
payment for benefits in the amount of $496,179.09. Such lump sum
payment is contrary to La. R.S. 40:1231.3 and 37 La. Admin. Code Pt III,
1907(A), which specifically states patients may make a claim to the fund
“for future medical care and related benefits as incurred by the patient.” It
11
is axiomatic plaintiff made an extensive claim, and as statutorily required,
the PCF is seeking to be a prudent administrator of the fund by requiring
plaintiff to follow the proper procedures by submitting claims as her
expenses are incurred. Plaintiff’s arguments lack merit.
Plaintiff also contends the trial court erred in denying her preliminary
injunction to enjoin an IME. Plaintiff concedes the PCF is entitled to
conduct an IME “from time to time” to “determine the patient’s continued
need of future medical care and related benefits[.]” La. R.S. 40:1231.3(G)
(emphasis added). She argues an IME is inappropriate at this time, and
requiring one at this juncture violates the MMA.
La. R.S. 40:1231.3(G) provides:
The patient’s compensation fund shall be entitled to have a
physical examination of the patient by a physician of the
patient’s compensation fund’s choice from time to time for the
purpose of determining the patient’s continued need of future
medical care and related benefits, subject to the following
requirements:
(1)(a) Notice in writing shall be delivered to or served upon the
patient or the patient’s counsel of record, specifying the time
and place where it is intended to conduct the examination.
***
(2) Such examination shall be by a licensed medical physician
or chiropractic physician licensed under the laws of this state or
of the state, parish, or county wherein the patient resides.
***
(5)(a) Examinations may not be required more frequently than
at six months intervals except that, upon application to the court
having jurisdiction of the claim and after reasonable cause
shown therefor, examination within a shorter interval may be
ordered.
(b) In considering such application, the court should exercise
care to prevent harassment to the patient.
***
Based on our review, the trial court’s judgment in accordance with the
jury’s verdict was signed April 19, 2022; plaintiff submitted her notice of
claim on December 12, 2022. By then, more than six months had elapsed
12
from the time Dr. Gervais report and recommendations were submitted at
trial. Plaintiff has failed to prove the PCF’s request for an IME was
unreasonable or outside the scope of the PCF’s statutory responsibility.
Plaintiff has also failed to meet her burden of proving she will suffer
irreparable injury by submitting to an IME. Consequently, we find the trial
court did not err in granting the PCF’s motion to compel an IME and
denying plaintiff’s preliminary injunction to enjoin the IME. We shall recall
the writ as improvidently granted.
CONCLUSION
For the foregoing reasons, we recall this writ as improvidently granted
and affirm the ruling of the trial court. Costs are assessed to plaintiff,
Cynthia Cannady.
WRIT RECALLED; AFFIRMED.
13