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La. Supreme Court Determines Impact of Failure to Pay Filing Fee in Medical Review Panel

Published on: July 29, 2020

The Louisiana Supreme Court recently held that failure to pay filing fees necessary to add a defendant does not invalidate the proceeding as to other defendants. Prior to the ruling, Louisiana courts held that a failure to pay for one defendant invalidated the entire proceeding.

In Kirt v. Metzinger 2019-C-1162 (La. 04/03/20), plaintiffs requested a medical review panel after the death of their mother due to complications after surgery. Plaintiffs named three defendants—two doctors and the hospital. A letter from the Patient’s Compensation Fund Oversight Board (PCF) was mailed to the plaintiffs, confirming that the defendants were qualified under the Louisiana Medical Malpractice Act, and informing the plaintiffs that they were required by La. R.S. 40:1231.8 to pay a filing fee of $100 per named defendant within forty-five days of the mailing of the letter. Plaintiffs responded, requesting to add two additional defendants to the panel, one of whom was an unidentifiable nurse. Plaintiffs also included payment of $500.

The PCF responded that it was unable to add the nurse without proper identification. Three weeks later, plaintiffs notified the PCF they were also unable to identify the nurse. Upon request, Parish Anesthesia was added to the panel instead. Nearly five months later, plaintiffs provided the PCF with the identity of the nurse in question and requested she be added. The PCF sent confirmed the addition and requested another $100 filing fee which was never paid. Nevertheless, the medical review panel thereafter determined that none of the defendants, including the nurse, breached their standard of care. Suit followed against all defendants.

The defendants moved for summary judgment, arguing that the failure to pay the additional filing fee invalidated the proceeding as to all defendants. The trial court granted this motion, and the appellate court affirmed. Reversing the lower courts, the Supreme Court found that the failure to pay the additional $100 filing fee did not invalidate the entire proceeding. The court observed that separate confirmation letters sent by the PCF provided a different forty-five day period during which to pay the filing fee tied to each individual defendant.

The Kirt court stated: “[t]he notion of ‘one filing fee’ for every panel proceeding cannot be reconciled with the different payment deadlines that arise when the PCF sends separate letters confirming defendants’ qualified status. A single filing fee cannot be subject to different payment deadlines.” The court dismissed only the nurse and remanded the remainder of case to the lower courts.

Chad A. Sullivan is a partner with Keogh, Cox & Wilson, Ltd. Prior to becoming an attorney, he worked as a licensed Registered Nurse. He utilizes his background in nursing on a daily basis in his law practice that primarily focuses on automobile liability, medical malpractice, nursing home litigation, healthcare professional licensure and discipline, and products liability.

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Here Comes Hurricane Ida: What To Do If Your Home is Damaged by a Storm or Flood

Unfortunately, Louisianians have endured many natural disasters in the past several years. From the historic flooding in Baton Rouge in August 2016 to the devastation caused by Hurricanes Laura and Delta in 2020, Gulf Coast residents are very familiar with significant storms and flooding events. While the rebuilding process will take months or years to complete, this article is designed to provide some basic information on how to document and report your property damage claim and apply for and obtain disaster assistance.

DOCUMENT, DOCUMENT, DOCUMENT - Once you are able to do so, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos of the damage. Make a list of the items in your home that were damaged or destroyed. One way to organize this list is to list each item from each room together, approximate its age, where it was purchased and its value when purchased. As you rebuild, and materials and items are thrown out, it will be much more difficult to document your claim.

REPORT YOUR CLAIM – Report your damage to your homeowners or flood insurer as soon as possible. Provide as much detail about the damage as you can. If you are unaware of your insurer, contact your insurance agent who can help you to report your claim.

OBTAIN MULTIPLE ESTIMATES - Although it is often difficult to do so after a natural disaster because of the volume of work, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.

SAVE YOUR RECEIPTS – Whether for repairs you undertake to fix the damage to your home, to replace contents, or for living expenses after the storm, save your receipts. These receipts will be used to document your losses and verify the amount of your claim to your insurer.

FOLLOW UP WITH YOUR INSURER - Provide whatever is requested by your insurer as they adjust your claim. Communicate with your insurer on a regular basis. Although it may seem tedious, communication with your insurer during the claim is important.

APPLY FOR ASSISTANCE - Especially if your property is not insured, make sure to immediately apply for government assistance. You can apply for federal assistance at www.disasterassistance.gov. Oftentimes, the state government will also administer federal or state disaster assistance funds.

Insight

A Matter of Control: Vicarious Liability in Construction Projects

Under Louisiana’s comparative fault system, each party in a lawsuit generally is only liable for their own percentage of fault. However, in some instances, a party may be “vicariously” liable for the fault of another party. One example of vicarious liability is an employment relationship, where an employer can be liable for the fault of its employees. On the other hand, vicarious liability generally does not apply when the alleged “employee” is found to be an independent contractor. Whether a worker qualifies as an employee or an independent contractor often becomes an important issue in suits related to construction projects.

The test for determining whether a party is an employee or an independent contractor involves analysis of who has the right to control his or her work. In the construction context, courts distinguish between “operational control” (which suggests an employment relationship) and control as it relates to the results of the work (which suggests an independent contractor relationship). Two recent cases examine this issue and provide examples of how courts analyze the type of control necessary to establish vicarious liability in the construction projects.

In Stonetrust Com. Ins. Co. v. TBT Contracting, Inc. of LA, homeowners hired a general contractor to renovate their home. During the project, an electrical subcontractor was injured after falling through an attic space. It was alleged that the general contractor created a hazard by cutting a hole in the attic and concealing it. The plaintiff sued the general contractor and the homeowner. The court had to determine whether the homeowner could be liable for the subcontractor’s injuries, which would require a finding that the homeowner was vicariously liable for the general contractor’s fault.

The plaintiff argued that the homeowners were particularly involved in the project. It presented evidence to show the homeowners would give suggestions regarding the work to be performed and also directed alterations or additions to the work. The plaintiff argued that this demonstrated control over the general contractor’s work. However, the court disagreed. Despite the homeowners’ level of involvement, the court held that their control was limited to the results of the work, and was not “operational control.” The general contractor therefore was an independent contractor, and the homeowners were not vicariously liable for its acts.

In Baham v. Fisk Elec. Co., a city worker brought suit against a general contractor after suffering injuries from an electrical shock. The worker alleged that the general contractor was vicariously liable for the fault of its subcontractor. While evidence showed the subcontractor relied on the general contractor for the location of its work, the court found that this was not “operational control.” The court observed that general contractors are entitled to exercise supervisory control over its independent contractors to ensure compliance with the contract. It further found that suggestions or instructions given to an independent contractor do not equate to control over the methods or details of the work. Absent such “operational control” vicarious liability could not be imposed.

Though they may be limited to their facts, these cases show courts usually require a showing of more than suggestions or instructions regarding the work to establish the “operational control” necessary to trigger vicarious liability. Absent such a showing, independent contractors usually remain independent.

Case References:

Stonetrust Com. Ins. Co. v. TBT Contracting, Inc. of LA, 2022-0971 (La. App. 1 Cir. 4/14/23), 2023 WL 2947826

Baham v. Fisk Elec. Co., 2022-0551 (La. App. 4 Cir. 3/22/23), 2023 WL 2595253

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Louisiana Supreme Court Clarifies “Reasonably Anticipated Use” in Product Liability Claim

Plaintiff Brady Hardisty and a coworker attempted to use chains attached to a tractor to pull a Caterpillar bulldozer from the mud. A chain snapped and struck plaintiff in the head and face. Hardisty sued Caterpillar under allegations that its product was unreasonably dangerous. Caterpillar filed a Motion for Summary Judgment arguing Hardisty was not engaged in a “reasonably anticipated use” of its product. Both the trial court and the appellate court identified “material issues of fact” in denying Caterpillar’s motion. The Supreme Court reversed, and entered summary judgment for Caterpillar.^

Caterpillar cited its Operation Manual that warned against the use of chains and gave a safer alternative. Hardisty asserted that material issues of fact existed as to whether Caterpillar “knew or should have known” that users were not following product warnings. Hardisty offered opinions from its expert witness that: (1) Caterpillar knew of the danger because it warned against the use of chains and (2) experience showed that the use of chains was a common practice in the industry.

The Hardisty court reasoned that the expert’s own “experience” was insufficient to refute Caterpillar’s evidence that it received no report of prior similar accidents. However, the Court cited to earlier case law for the proposition that even actual knowledge would not defeat the motion, stating:

The jurisprudence has recognized that knowledge of the potential and actual intentional abuse of a product does not create a question of fact on the question of reasonably anticipated use when the manufacturer expressly warned against the danger of such misuse.

In a recent case handled by Keogh Cox, the federal Fifth Circuit affirmed summary judgment for defendants, citing Hardisty for the proposition that a manufacturer may reasonably expect that its users will follow “clear and direct” product warnings. See Friels v. Louisiana State Administrative Office of Rick Management, et al.

References:

^Hardisty v. Walker, 25-00239 (La. 6/3/25), 410 So,3d 774.

Louisiana State Administrative Office of Rick Management, et al., No. 24-30688, 8/15/25. Opinion not designated for publication. 5^th Cir. R. 47.5.