The Louisiana Fifth Circuit Court of Appeal Has Held that the Louisiana Patient’s Compensation Fund’s Filing Fee is Constitutional
The Louisiana Medical Malpractice Act includes a provision that a claimant filing a medical malpractice complaint with the Louisiana Patient’s Compensation Fund (“PCF”) must pay a fee of $100.00 per named defendant within 45 days of the PCF’s acknowledgment of its receipt of the complaint. Failure to pay the filing fee within this time period renders the medical malpractice complaint invalid and without effect.
In Smart v. West Jefferson Medical Center, 09-366 (La. App. 5 Cir. 11/24/09), ____ So.3d ____, the plaintiff, Henry Walton, allegedly developed a decubitus ulcer during his hospitalization. He filed a medical malpractice complaint with the PCF naming the hospital and six physicians and nurses as defendants.
The PCF notified plaintiff’s counsel that the filing fee must be paid within 45 days. However, Mr. Walton died of unrelated causes prior to the expiration of the 45 day period. His heirs then filed a survival action with the PCF and paid the filing fee subsequent to the expiration of the original 45 day period and more than one year after the malpractice was allegedly committed.
The defendants filed an Exception of Prescription. The plaintiffs opposed the exception and argued that the statute should be interpreted to allow a deceased patient’s heirs 45 days from the date of the patient’s death to pay the filing fee. In the alternative, the plaintiffs argued that the filing fee requirement is unconstitutional. The trial court granted the defendants’ Exception of Prescription and rejected the plaintiffs’ constitutional challenge. The plaintiffs appealed.
The Louisiana Fifth Circuit Court of Appeal affirmed the judgment of the trial court. The Court of Appeal distinguished the nature of the PCF’s filing fee from the nature of the filing fee which was declared unconstitutional by the Louisiana Supreme Court in Safety Net for Abused Persons v. Segura, 96-1978 (La. 4/8/97), 692 So.2d 1038. In Segura, the filing fees on civil and criminal filings were used to fund domestic abuse services. The Court of Appeal found that the PCF’s filing fee was a fee collected by an administrative agency to contribute funds necessary for the administration of medical review panel requests. The Court of Appeal found no merit in the plaintiffs’ argument that this fee constitutes an impermissible delegation of powers or an impermissible tax to raise the State’s general revenue.
In addition, the Court of Appeal also found that the evidence introduced in the trial court indicated that one of the purposes of the PCF’s filing fee is to encourage a claimant to carefully consider the merits of his claim against each individual health care provider rather than indiscriminately naming multiple health care providers as defendants. The Court of Appeal found that there was a rational basis for the imposition of the fee, that the filing fee in this case did not unconstitutionally bar the plaintiffs’ access to the courts, and that the filing fee could not be properly characterized as an unconstitutional taking of private property in violation of Art. I, Section 4(B)(1) of the Louisiana Constitution.
The plaintiffs filed an application for writs to the Louisiana Supreme Court. The writ was denied on February 12, 2010.
Although not addressed by the courts in the Smart case, the Louisiana Medical Malpractice Act provides that the $100.00 per defendant filing fee may be waived upon the PCF’s receipt of one of the following: (1) An affidavit of a physician certifying the validity of the plaintiff’s allegations of malpractice; or (2) A ruling from an appropriate district court stating that the claimant is unable to pay the filing fee due to poverty.
Michael C. Luquet is a partner in the firm of Breazeale, Sachse & Wilson, L.L.P. in New Orleans, practicing in the area of medical malpractice litigation.