author: AMY, Judge.

text:
    Pamela Sharonette BARTEE, individually and as Tutrix and Administratrix of the Estate of the Minor Child, Jamie Denise Bartee v. CHILDREN’S CLINIC OF SOUTHWEST LOUISIANA, INC., et al.
    No. 2007-798.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 26, 2007.

      Charles H. Braud, Jr., Louisiana Department of Justice, Office of the Attorney General, Baton Rouge, LA, for Interve-nor/Appellee, State of Louisiana, Department of Justice.
    Leslie A. Cordell, Orrill, Cordell & Beary, LLC, Lafayette, LA, for Plaintiffs/Appellees, Pamela Sharonette Bartee, Jamie Denise Bartee.
    Nadia de la Houssaye, Perret Doise (APLC), Lafayette, LA, for Defendant/Appellant, Louisiana Patient’s Compensation Fund.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

|,The plaintiff sought payment of a number of expenses from the Louisiana Patient’s Compensation Fund for her minor daughter who sustained a brain injury from alleged medical malpractice. The trial court found in favor of the plaintiff, awarding private school tuition, installation and maintenance of a home alarm system, custodial care at an hourly rate for sixteen hours per day, and attorney fees. The Louisiana Patient’s Compensation Fund appeals. For the following reasons, we affirm.

Factual and Procedural Background

Pamela Sharonette Bartee, individually and as tutrix and administrator of her minor child’s estate, filed the medical malpractice suit underlying the present matter in 1996. She asserted that shortly after her daughter Jamie’s birth in 1993, the newborn became dehydrated and sustained brain injury. The record indicates that Jamie’s injuries are permanent and have resulted in a number of mental, emotional, and physical difficulties. While Jamie was thirteen years of age at the time of trial, her cognitive ability was estimated to be at the pre-school level.

After summary judgment was entered in favor of two of the defendant health care providers, the plaintiff entered into a settlement with the remaining defendant for the limits of their liability under La.R.S. 40:1299.42(B)(2). Thereafter, the plaintiff lapursued the matter against the Louisiana Patient’s Compensation Fund (PCF) and settled with the PCF for the statutory cap thereafter. She reserved her right to future medical care and related benefits. The matters in the present proceeding were before the trial court on the plaintiffs rule to show cause why the PCF should not be compelled to provide reimbursement for Jamie’s private school tuition, installation and maintenance of a home alarm system, and custodial care and tutoring. The plaintiff also requested attorney fees pursuant to La.R.S. 40:1299.43(E)(2).

The trial court awarded private school tuition and tutoring, reimbursement for the home alarm system and ongoing monthly monitoring charges, and reimbursement for custodial care in the amount of $13.00 per hour for sixteen hours per day to the plaintiff for her time caring for Jamie. Finding that the PCF unreasonably failed to pay for certain claims, the trial court awarded attorney fees, costs and expert witness fees. The trial court denied the request for school uniform expenses.

The PCF appeals, assigning the following as error:

1. The trial court erred in ordering the PCF to pay private tuition and tutoring, as a medical and related benefit under Louisiana Revised Statute[s] § 40:1299.43(A)(3).
2. The trial court erred in ordering the PCF to pay private tuition and tutoring, based on the reasoning that the Calcasieu Parish public school system lacks the capacity to adequately provide for same.
3. The trial court erred in ordering the PCF to pay for a home alarm system and its monthly service costs under Louisiana Revised Statute[s] § 40:1299.43.
4. The trial court erred in awarding reimbursement for custodial care to Ms. Bartee in the amount of thirteen dollars per hour for sixteen hours per day.
5. The trial court erred in not applying the PCF Reimbursement Rate Schedule to Plaintiffs custodial care claim.
|s6. The trial court erred in awarding $25,000.00 in attorneys’ fees based on the finding that the PCF unreasonably failed to pay for medical and related care claims within thirty (30) days of submission of claim.

Discussion

Private School Tuition and Tutoring

The PCF first questions the trial court’s award of private school tuition and tutoring for Jamie. It first contends that tuition and tutoring do not fit within the definition of “future medical care and related benefits” under the Medical Malpractice Act and, therefore, the trial court erred in awarding expenses for Jamie’s attendance at Our Lady Queen of Heaven School, a private school. The PCF further contends that the evidence does not establish that Our Lady Queen of Heaven School offered services more appropriate for Jamie than does the Calcasieu Parish school system.

The award of future medical care and related benefits is governed by La.R.S. 40:1299.43, Paragraph B(l) of which indicates that “future medical care and related benefits” means “[a]ll 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.... ” The provision further instructs that “ ‘[fjuture medical care and benefits’ as used in this Section shall not be construed to mean non-essential specialty items or devices of convenience.” La.R.S. 40:1299.43(B)(2)

In oral reasons for ruling, the trial court awarded private school tuition and tutoring as follows:

Insofar as the tuition is concerned, I initially thought that Jamie could get the same thing; but I am satisfied from the evidence that has been presented here today that she did not get the care and the education that she is entitled to in the public school system of Calcasieu Parish. So, I am going to find that the evidence does show that the special ^education Jamie receives at Our Lady Queen of Heaven is not available to her at public schools; and as a result I am going to order that it be provided to her. That means that tuition in the amount of $210 and summer tutorship fees of $150 a month are due. I am not sure what that adds up — what the total of that is, but that’s from when she started school, and I think the evidence shows in August of '03 and continuing. That obligation to pay the tuition is there.

After review, we find the trial court’s award of private school tuition and tutoring supported by the record.

Testimony indicated that the type of structured educational environment recommended by Jamie’s physicians was necessitated by the underlying medical malpractice. Dr. William Black, an expert in the field of neuropsychology, evaluated Jamie at the request of her treating pediatric neurologist. His clinical impression of Jamie was that she will have moderate mental retardation for the remainder of her life and will continue to have a lack of development of cognitive skills, social skills, and emotional skills. He noted that Jamie will continue to require 24-hour supervision, “whether this be in the home with nursing level sitters or in a specialized school setting, which is a more restrictive setting (Emphasis added.) With regard to Jamie’s attendance at Our Lady Queen of Heaven School, Dr. Black opined that the school was appropriate “based on what the teachers say and based on what she’s doing.” He found it important that the school offers a structured environment and is responsive to Jamie’s needs. Further, Dr. John Willis, a pediatric neurologist, explained in an affidavit that a special education program featuring close supervision at both recess and lunch periods and small classes would be “medically necessary to provide care and rehabilitation for Jamie’s brain damage.”

Jamie’s teacher at Our Lady Queen of Heaven School, Catherine King, who is certified in special education, also testified. Ms. King explained the self-contained | fidassroom environment provided at the school, the consistency in the special education teaching staff, and Jamie’s progress while attending the school. She stated that the school offers tutoring during the summer recess which prevents the students from regressing while away from school.

The PCF’s contention that the evidence does not support a finding that Our Lady Queen of Heaven School offers a more appropriate educational environment for Jamie than the Calcasieu Parish public school system also lacks merit. Along with the testimony from Ms. King, the plaintiff offered the deposition of the special education teacher who taught Jamie while she attended public school. The teacher, who was not certified, explained that Jamie, when not in her special education classroom, attended classes such as art and physical education with the students from the grade level at which she was functioning. Based on the evidence presented, the trial court could have concluded that this testimony demonstrated that the services offered at Our Lady Queen of Heaven School were more in keeping with the type of structured environment recommended by Dr. Black and Dr. Willis.

The PCF’s arguments regarding this portion of the judgment lacks merit.

Home Alarm System

The PCF next asserts that the trial court erred in ordering that the PCF provide reimbursement for expenses related to a home alarm system. As with the private school tuition, it contends that the alarm system does not qualify as “future medical care and related benefits” and that, furthermore, it should be prohibited by La.R.S. 40:1299.43(B)(2), which provides future medical care and benefits “shall not be construed to mean non-essential specialty items or devices of convenience.”

Un awarding expenses related to the home alarm system, the trial court explained:

On the issue of a home alarm system, I do not find it’s a device of convenience, but rather a necessary tool in caring for Jamie. So, I am going to grant the motion to compel on that. That means that there will be an award of $394.83 for the installation and [$]24.95 per month since September of 04 when it was installed.

The plaintiff testified as to Jamie’s sleeplessness and anxiety during the night hours and her tendency to wander at times. The plaintiff explained the precautions she takes to ensure that Jamie is safe while at home and that, before the alarm, she had a variety of locks on the doors to ensure that Jamie did not leave the house. After the installation of the alarm system, the monitor alerts her when Jamie opens a door. It enables her to know if Jamie is attempting to leave the house.

Dr. Black explained that Jamie will require twenty-four hour supervision for the rest of her life and that, given her deficits, the home alarm system is essential for her safety. He testified that, due to Jamie’s “hyperactivity, impulsivity and lack of awareness of danger to herself and others that wherever she is, in the home or elsewhere, requires some kind of security system so that she doesn’t slip out or barge out without other people knowing that she’s gone. I think that’s essential.”

In light of this testimony, the trial court’s determination that the system was necessitated by Jamie’s condition, was essential, and was recoverable as “future medical care and related benefits” is supported by the record.

This assignment lacks merit.

Custodial Care Award for Parental Care

The trial court awarded custodial care reimbursement to the plaintiff at an hourly rate of $13.00 for sixteen hours per day. The PCF contests this award in two ^regards. First, it contends that the trial court should have limited the plaintiffs reimbursement to eight hours on days when Jamie attended school and to twelve hours on days she does not. Second, the PCF contends that the trial court should have applied the reimbursement rate schedule of $6.00 per hour, plus an inflationary adjustment, to the plaintiff’s custodial care claim rather than awarding her the hourly rate of $13.00.

The trial court first addressed the applicability of the PCF’s administrative rules, explaining:

On the issue of custodial care, I find that the PCF has the authority to set rates for services and that these rules were promulgated in accordance with the law. However, I agree with the plaintiff that this cause of action for future medical expenses arose prior to the enactment of those rules; namely, the date of injury in October of 1993. Louisiana Revised Statute Title 40:1299.43[B](l)(a) and (b) define future medical care and related expenses as all reasonable custodial sendees incurred after the date of injury up to date of settlement, as well as all reasonable custodial services incurred after the date of injury — that will be incurred after the date of settlement. In reading Sections 1(a) and (b) together, future medical care is defined as all reasonable custodial services after the date of injury. Jamie Bartee’s injury arose in October of 93; and, therefore, this matter is not governed by the rules adopted and which were enacted in November of 1993.
I now must set the rate for custodial services rendered by Jamie Bartee’s mother. In making this decision, I cite the parties to Kelty v. Brumfield. In Kelty, the board valued their services at $6 an hour after determining that the services the Keltys provided were comparable to that of a sitter, because the Keltys were not formally trained, licensed, or certified as nurses or therapists. Based on the evidence provided in that case, the Fourth Circuit disagreed that the Keltys were merely sitters. Based on an average of LPN salaries over the time period awarded $15 per hour for 24 hours a day and reduced the daily reimbursement by 20 percent per day. This reduction accounted for the time Ms. Kelty spent doing other tasks during the day.
The evidence in this case does not show that Ms. Bartee should receive the hourly rate of a licensed nurse; however, I do believe that the care she provides to Jamie is more than that of a sitter or a CNA. I set her hourly rate at $13.00 per hour and award her 16 hours per day. The reduction from 24 hours accounts for the time that Jamie spends in | ^school and also for the time she spends sleeping; and I have awarded her the home alarm system which allows Jamie’s mother to have rest and only to monitor Jamie when the alarm goes off.

Certainly the PCF has the authority to promulgate rules, regulations, and standards necessary to discharge its responsibilities. See La.R.S. 40:1299.44(D); Bartee v. Child Clinic of SW La., 05-583 (La.App. 3 Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La.3/24/06), 925 So.2d 1230. However, as pointed out by the plaintiff, the PCF’s administrative rule limiting the amount of the custodial payment to family members to $6.00 per hour was not enacted until after Jamie sustained injury. Thus, we consider whether the trial court erred in finding that the PCF administrative rules, adopted after Jamie’s October 1993 cause of action for medical malpractice arose, are inapplicable to her reimbursement claim, i.e., whether application of the rule would infringe upon a vested right.

As explained by the fourth circuit in Kelty v. Brumfield, 96-0869 (La.App. 4 Cir. 3/12/97), 691 So.2d 242, (citing La.R.S. 49:954(B)), writ denied, 97-0918 (La.5/16/97), 693 So.2d 800, writ denied, 97-0936 (La.5/16/97), 693 So.2d 801, the adoption of the PCF administrative rule regarding reimbursement for custodial care for family members did not have retroactive effect. While the Kelty court noted that the plaintiffs in that case pursued their own custodial care costs for ten years prior to the enactment of the rule, the reference to the filing date for custodial care is a distinction of no moment. Rather, the remainder of the discussion in Kelty also addresses family custodial costs incurred after the PCF’s 1993 regulation limiting the hourly rate of custodial care to family members and discusses awards well in excess of the PCF’s rates. Similar to the discussion in Kelty, Jamie’s right to reasonable and necessary medical expenses arose on the date of her injury, prior to the creation of the [s1993 family custodial care rule. Accordingly, the trial court did not err in finding the rule inapplicable.

We note that the PCF asserts that the present matter is analogous to Louisiana Patients Compensation Fund Oversight Board v. Edwards, 41,594 (La.App. 2 Cir. 12/20/06), 945 So.2d 975, wherein the second circuit considered a suit involving a plaintiffs suit for recovery of additional fees payable to a third-party provider. We do not apply the reasoning of Edwards to the present case given the difference in the factual background of this case and that in Edwards which involved a third party’s knowledge of a rule change applicable its services. In particular, we note that the second circuit did not address what effect the reduced rate change had on the vested rights of the malpractice victim, as here.

Neither do we find merit in the PCF’s assertion that either the $13.00 hour rate or the sixteen hours in custodial care awarded the plaintiff require alteration on appeal. With regard to the hourly rate, the trial court noted that the services rendered by the plaintiff exceed those of a sitter or a Certified Nursing Assistant, but that she does not render the services of a licensed nurse. This finding is supported in the record given the plaintiffs testimony regarding Jamie’s need for medication and for various hygiene and sanitation measures. The $13.00 hourly rate is consistent with the level of ability discussed by the trial court, as it falls between the hourly rates available to Licensed Practical Nurses and those available to Certified Nursing Assistants in the area as testified to by an expert in nursing and home health administration. As for the sixteen hours of care per day awarded, this too, is supported by testimony in the record indicating that the plaintiff supervises Jamie at all times while she is not attending school. While the PCF contends that the plaintiff | inshould not be compensated for the time that Jamie is sleeping, due to the home alarm system, the plaintiffs testimony reveals that she must respond to Jamie’s constant and various needs throughout the night.

This assignment of error lacks merit.

Attorney Fees

Finally, the PCF contests the trial court’s award of $25,000.00 in attorney’s fees pursuant to La.R.S. 40:1299.43(E)(2), which 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.”

The PCF does not question the trial court’s determination that its failure to pay benefits was unreasonable. Rather, the PCF argues that the parties agreed to waive all attorney’s fees “based upon PCF counsel’s assurance of good faith negotiations to fully compromise these matters.” The plaintiff asserts that, as there was no settlement of the matters under discussion, nor any offer of settlement by the PCF, the claim for attorney’s fees was preserved.

The trial court explained as follows in assessing damages:

On the issue of attorneys fees, Louisiana Revised Stat[ute] Title 40:1299.43 states that 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 medical care within thirty days after submission of a claim for payment of such benefits. The evidence presented in this case, particularly the checks sent December of 06 for medical expenses incurred more than two years prior to that time, convinces me that the PCF unreasonably failed to pay the medical care within thirty days. Accordingly, I will grant the plaintiffs request for attorney’s fees. I will award $25,000 attorneys fees, which includes the sum for that paralegal, not distinguishing what that dollar amount is; but I am going to award you the services for that.

InThe parties presented these arguments to the trial court, along with email correspondence surrounding the alleged waiver. After our review of the related correspondence, we find no error in the trial court’s determination that the correspondence does not evidence an effective waiver of the right to pursue attorney’s fees.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellant, the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . A plaintiff's recovery in a medical malpractice action is dictated by La.R.S. 40:1299.42(B), which provides:
      (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (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, for all malpractice claims because of injuries to or death of any one patient.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    In re V.A.H.
    No. 07-CA-472.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.
    Rehearing Denied Jan. 28, 2008.

      Margaret E. Woodward, Attorney at Law, New Orleans, LA, for Defendanf/Ap-pellant.
    Edith H. Morris, Bernadette R. Lee, Suzanne Ecuyer Bayle, Attorneys at Law, New Orleans, LA, Betsy Fischer, Attorney at Law, Metairie, LA, for Plaintiff/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

I ¿This is an appeal by the biological father of V.A.H. from a stepfather adoption granted by the juvenile court based on a petition for intra-family adoption filed by the child’s biological mother and her present husband. For reasons that follow, we affirm.

The record shows that V.A.H. was born in November, 2001 in Aabama to S.H. (mother) and C.H. (father). The couple were divorced on April 25, 2003. At the time of the Aabama divorce, the couple agreed to joint custody of V.A.H. with the mother as the custodial parent. The agreement also provided for visitation rights of the father, and child support and medical expenses to be paid by the father.

In October of 2004, the father was convicted on charges of child pornography and incarcerated in federal prison. About one year later on October |326, 2005, the Aa-bama court rendered an “Order of Modification” in which the mother was awarded sole and exclusive custody and control of Y.A.H. Further, all visitation and secondary placement rights of the child’s father were terminated with that order.

The “Order of Modification” resulted from an ongoing Aabama criminal investigation into whether C.H. molested V.A.H. in August or September, 2004 before his federal incarceration. At the time of the 2007 hearing in Jefferson Parish Juvenile Court, the molestation case was still pending before the Aabama Grand Jury.

In May of 2005 before the father’s rights were terminated, the Aabama court granted grandparent visitation to V.A.H.’s parental grandparents. That order also provided that the grandparents pay child support in the amount of $238.00 per month, to be credited to the child support obligation of the child’s father.

The mother testified that the Aabama sexual molestation charge came after the child returned from a visit with her father in 2004 before he went to prison. When the child gave her mother and her doctor information that suggested she had been sexually abused by the father on a visit, all visits between the child and her father and paternal grandparents were suspended. Visits between the child and the grandparents resumed in May of 2005, by the court order after the father’s incarceration.

The father did not comment on the criminal charges for sexual molestation of the child except to say that the grand jury proceedings were set and there should be a resolution on that issue soon.

After the father’s incarceration in 2004, the child and her mother relocated to Louisiana. Both the judgment of divorce and the modification order were made executo-ry in Jefferson Parish, Louisiana on September 12, 2006. The child’s | ¿mother married S.M. (stepfather) on April 5, 2006, and the petition for intra-family adoption at issue herein was filed on December 12, 2006.

At the hearing on the petition, the mother testified that the child’s father had had no contact with his daughter for two years and seven months before the hearing, which took place in March of 2007. She testified that during the period between her separation from C.H. in September of 2003, and his incarceration in October, 2004, C.H. was sporadic, inconsistent, lackadaisical and complacent in his visitation. He cancelled or rescheduled visits when his parents were out of town, or when he had no friend to accompany him. He was late picking the child up and dropping her off and negligent in his care for V.A.H., such as taking her to a water park immediately after she had tubes implanted in her ears.

On his last Father’s Day visit in 2004, the father overslept and forgot to pick up his daughter for a promised breakfast outing. This caused V.A.H. to become very upset and begin to cry. The father can-celled his holiday visitation at the last moment, causing the mother, who had arranged to work since her daughter would be with the other parent, to have to make arrangements with her parents while she worked. When the father overslept on Mother’s Day and did not return V.A.H. for a planned event with the mother’s family, his mother handled the matter, returning the child hours late and unbathed.

The mother testified that during the period between his incarceration in October, 2005 and the “Order of Modification” which was signed about one year later in October, 2005, the father did not communicate with the child. There was no court order to prevent him from contacting the child by way of letter or card during that period.

C.H. was released from federal prison about four months before the March, 2007 adoption hearing. During this period he did not petition the court for | ¡¡visitation. He has had no contact with his daughter for two years and seven months before the hearing.

The mother further testified that she received no child support from the time the father was incarcerated in October, 2004 until the Alabama court issued an order in May, 2005 granting the paternal grandparents visitation rights and ordering them to pay child support of $238.00 per month. The paternal grandparents eventually paid the back due child support, rendering it current.

The mother assumed that it was the grandparents’ funds that were used to pay this obligation. However, the paternal grandmother, R.H., testified that the father had made financial arrangements to meet his child support obligation before he was incarcerated. She testified that she and her husband withheld the funds because they were not permitted to see their granddaughter until the Alabama court granted them visitation after the father’s incarceration. Although R.H. testified that she and her husband used the father’s funds to pay the child support, there is no documentation in the record to corroborate that testimony.

The mother testified that the father still owed $868.58 in medical bills at the time of the hearing. She testified that she notified the father of the amount still due in April, 2006, but had not received payment. The father acknowledged that he received the bills, but has not paid them.

After the May, 2005 Alabama order instituting grandparent visitation, the child began to see her paternal grandparents again. The child’s mother and stepfather testified that these visits are detrimental to the child and that she is in counseling as a result. The mother testified that the child is often upset after visits with her grandparents. The stepfather testified that upon returning from grandparent visitation, the child has told him that it is his fault that her Daddy is in jail and that her Daddy is in jail because her Mommy put him there. He also |fitestified that the child comes home upset because her grandparents tell her she can’t see her Daddy because her Mommy won’t let her, and that she can five with them if she wants to do so.

According to the mother’s testimony she and the child have been living with the stepfather since August of 2005. Both the mother and the stepfather are gainfully employed and are financially capable of providing for the child. Further, they have subsequently married and are living as a family unit. In her testimony, the mother described the relationship between her husband and daughter as that of father and child. They enjoy going to movies, playgrounds and other activities, including a favorite of grocery shopping together.

The stepfather explained that he has a good father-daughter relationship with the child and they do many activities together such as going to the park, McDonald’s play land and the grocery store. He stated that they play games together and she calls him “Daddy”.

Documents to support the testimony of the mother and the stepfather were introduced in conjunction with the testimony. Those documents include the divorce judgment and the order of modification in which the visitation and secondary placement rights, although not the parental rights, of the father were terminated. Contrary to the father’s testimony, nothing in the order prohibits him from sending a card or contacting his daughter by phone.

Two letters from the mother which include copies of medical bills corroborate her testimony that the father knew about the expenses and the exact amounts due.

The father opposed the adoption and testified at the hearing. He stated that he was aware of his support obligations and made arrangements through his parents before his incarceration in October of 2004 to have them met. He also 17acknowledged that he has received, but not yet paid, some outstanding medical bills for which he is responsible.

The father testified that he has not had any contact with his daughter since September of 2004. He testified that he was incarcerated for child pornography, caused by his voluntary acts. He also admitted that he has not called, sent birthday or Christmas cards, or written any notes to his daughter since September of 2004. He asserted the reason for that lack of contact was his understanding that he was prohibited from doing so by the Alabama court order, although, the order introduced into the record does not prohibit such contact.

The father admitted that he did not always use good judgment on visitations with his daughter. He acknowledged that all of the testimony given by the mother regarding his visitation was correct.

In conclusion, his testimony was that:

I’m unhappy to admit that they’re true, but ah, the great thing about being human in, um, we get to make mistakes. You know, we don’t have to, um, we all make mistakes. It’s a part of human nature. All I’m asking for is a second chance. I know I can be the father that I’m supposed to be. I just need the chance.

After hearing all of the testimony, the juvenile court granted the adoption by the stepfather in a judgment with reasons. In that judgment the court found that the consent of the natural father was not required and that the adoption was in the best interest of the child.

This court has set forth the law with regard to our review of a decision regarding intra-family adoption in In re B.V.G., 04-969 (La.App. 5 Cir. 12/14/04), 893 So.2d 106, writ denied 2005-0109 (La.1/26/05), 893 So.2d 56. In that case we stated:

The determination of whether an adoption is in the best interest of the child must be decided on the facts of each case and the trial judge is vested with great discretion in making that determination. |sUpon review, a determination concerning what is in the best interest of a child is subject to reversal upon a finding that the determination is manifestly erroneous. A reviewing court may not, however, merely decide if it would have found the facts of the case differently. The reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous.
(citations omitted)
In re B.V.G., 893 So.2d at 108

In the matter before us, the father does not contest the facts that he has not had contact with the child since 2004, that he was incarcerated for child pornography, has a pending criminal charge against him alleging sexual molestation of the child, or that he has made mistakes in judgment as a parent. Further, it is clear from the testimony that no child support was paid from October of 2004 through May of 2005, and that medical bills for which the father is responsible are still outstanding. The father simply asks for a second chance.

In brief to this court, the father argues the juvenile court was manifestly erroneous in its finding that he was without just cause for his failure to communicate during his incarceration. The father asserts the court order limiting his contact with the child constitutes just cause.

The loss of a parent’s right to a child is of the utmost gravity to this court. Therefore, we have carefully reviewed the record in this matter. However, we cannot find under the facts of this case that the juvenile court committed manifest error.

As a general rule a biological father’s consent is required for the adoption of a child. La.Ch.C. art. 1193. However, La. Ch.C. art. 1245 provides that under some circumstances such consent may not be required. Article 1245 reads as follows:

The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.
|9C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

The burden is on the party petitioning the court for adoption to prove the father’s consent is not required under the law. In re Intra Family Adoption of A.G.T., 06-805 (La.App. 5 Cir. 3/13/07), 956 So.2d 641, writ denied, 07-0783 (La.5/4/07), 956 So.2d 611.

Here it was shown that the father failed to support the child for over six months, and has failed to pay medical expenses as ordered by the Alabama court. He also admits he has had no contact with the child since his incarceration in 2004. Although he had completed his sentence and was released by the time of the hearing, he admitted he has made no attempt to contact the child. We are not persuaded by the father’s argument that he was prohibited from making such contact by court order. It is not clear which order the father is using as his justification. However, the Alabama order of modification contained in the record terminates “all visitation or secondary placement rights of the Plaintiff (father) with the said minor child.” The order did not prohibit phone calls, letters or birthday cards.

Incarceration alone is insufficient to justify a failure to communicate with a child. In re Fleming, 817 So.2d 371 (La.App. 5 Cir.2002). Here, the father did not attempt to communicate with the child during his incarceration or in the months following his release. We find, therefore, that the trial court was correct in its finding that the two prongs of the applicable codal article were met. The father Imherein has failed to pay court ordered child support for a period of six months and has failed to communicate with the child for six months without just cause. Accordingly, we find the trial court correctly found that the father in this matter has lost his right of consent to this adoption.

However, even upon finding that a parent has lost his right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interest of the child. In re Intra Family Adoption of A.G.T., supra.

In the matter before us, where the mother has been awarded sole custody of the child and is married to the stepfather petitioner, La.Ch.C. art. 1255 B creates a rebuttable presumption that the adoption is in the child’s best interests. Article 1255 effectively imposes the burden on the natural parent opposing the adoption to show that the adoption is not in the child’s best interest. In re C.B., 94-0755 (La.10/17/94), 643 So.2d 1251,1253.

In the matter before us, we find the juvenile court correctly found that the father has not successfully rebutted the presumption that the adoption is in the best interest of the child. The father admits he has no contact with the child in over three years and does not have a relationship with her. His history of child pornography and the allegation of sexual abuse, although not yet adjudicated, do not convince this court that the juvenile court was manifestly erroneous in its finding that the adoption is in the best interest of the child.

We commend the father for his honest and candid admission of his failures as a parent. However, those actions bring about consequences. While we are mindful of the harsh consequences of losing a child, we cannot find manifest error in the trial court’s decision.

_|<uThe stepfather has been the only father the child has known since she was three-years-old and the two have bonded as parent and child. The stepfather has emphasized in his testimony that he is willing and able to meet the child’s financial and emotional needs. He has been doing that for the last three years and has testified that he will continue to do so.

Although we acknowledge the heart wrenching loss the father must feel as a result of this decision, we are convinced the adoption is in the best interest of the child and find no error in the decision of the juvenile court. Accordingly, we affirm that ruling.

AFFIRMED.

      . When a court has granted custody to either the child’s grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child.


author: GREG G. GUIDRY, Judge.

text:
    In re MEDICAL MALPRACTICE CLAIMS REGARDING Anthony DIECIDUE, Jr.
    No. 07-CA-656.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.
    Rehearing Denied Jan. 22, 2008.

      Timothy J. Falcon, Jeremiah A. Sprague, Attorneys at Law, Marrero, Louisiana, and Michelle Hesni Davidson S. Ehle, III, Attorneys at Law, Gretna, LA, for PlaintifiyAppellant.
    William D. Treeby, John P. Farnsworth, Ashlee M. Robinson, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ^Appellant Gayle Ordoyne, appeals from the trial court judgment granting the exception of prescription filed by Defendant, Maison De’Ville Nursing Home of Harvey, L.L.C., and finding “that all of plaintiff Rita Avocato’s survival action claims concerning Anthony Diecidue, Jr. have prescribed.” For the reasons which follow, we reverse and remand.

From the limited record before us, it appears that Anthony Diecidue, age 78, was a resident of the Maison De’Ville nursing home from April 1999 until November 15, 2004, when he was hospitalized at West Jefferson Medical Center with severe bed sores on his tail bone, hip and shoulder. He also had severe blistering on his foot and face as well as a yeast infection in his mouth. Gayle Ordoyne, the daughter of Diecidue’s wife, thus, his stepdaughter, was appointed Diecidue’s mandatary in 1999, and has cared for him since that time. Soon after Diecidue’s hospitalization, Ordoyne informed Maison De’Ville that he would not be returned to its care. Diecidue died on March 5, 2005. On October 18, 2005, an |sattorney, Michelle Hesni, sent a letter to the Commission of Administration in her “capacity as legal counsel of Gayle Ordoyne, o/b/o Anthony J. Dieci-due, deceased, pursuant to the Act La. R.S. 40:1299 A(2)(a)” requesting a medical panel review of Dieeidue’s medical malpractice claims, alleging abuse and neglect against Maison De’Ville. On November 6, 2006, Ordoyne was appointed executrix of the Succession of Anthony Diecidue by Rita Avocato, the surviving blood sibling of Diecidue, to prosecute the medical malpractice claim against Maison De’Ville.

On November 17, 2006, Maison De’Ville filed an “Exception of Prescription” alleging that Ordoyne, as Diecidue’s stepdaughter, “had no standing to initiate and prosecute a medical malpractice claim under La. R.S. 40:1299.41 et seq.” It was further alleged in the exception that only one or both of Diecidue’s two surviving sisters, Rita Avocato or Cecile Cherrier, could have initiated the malpractice proceedings. Since it is well over a year from the time of the alleged malpractice, any claims by Avocato would be prescribed. Therefore, it was requested that the court “uphold the exception of prescription and order the dissolution of the medical review panel proceedings at plaintiffs cost....”

In opposition to the exception, Ordoyne argued that she was the mandatary for Diecidue for over five years preceding his death. She was the person who cared for him, physically and financially. She timely filed the complaint with the Division of Administration requesting the medical review panel on his behalf and/or, by implica-, tion, that of his heirs. Ordoyne’s capacity to file the claim was not provided in the original letter. Ordoyne alleges that Rita Avocato intended for Ordoyne to pursue the claim and formally put that intent in writing in November 2006. Ordoyne attached to her opposition to Maison De’Vil-le’s exception, a copy of a letter sent to the Division of Administration dated December 28, 2006 by Ordoyne’s attorney, asking that the complaint filed on October 13, 2005 be |4amended, designating Ordoyne as mandatary for Rita Avocato. All claims against Maison De’Ville remained the same and the only change was in Or-doyne’s capacity. Ordoyne argued that the amendment to the complaint related back to the original filing date.

Following a hearing, the trial court, on January 24, 2007, rendered judgment granting the exception of prescription and finding “that all of plaintiff Rita Avocato’s survival action claims concerning Anthony Diecidue, Jr. have prescribed.” It is from this judgment Ordoyne appeals.

Actions for medical malpractice against certain health care providers, such as the Defendant herein, are governed by special laws, Part XXIII of Chapter 5, Miscellaneous Health Provisions of La. R.S. 40:1299.41, et seq. and La. R.S. 9:5628, which delineate the liberative prescription applicable to actions for medical malpractice under Title 40. LeBreton v. Rabito, 97-2221, p. 8 (La.7/8/98), 714 So.2d 1226, 1229. It is specifically provided that the filing of the request for review of a claim by a medical panel shall suspend the time within which suit must be instituted. La. R.S. 40:1299.47(A)(2)(a).

The Supreme Court, in LeBreton, elaborated on the concept of suspension of prescription by filing a request for review by a medical review panel as follows:

As elaborated upon hereafter, we find that our determination comports with the rationale for suspension espoused by G. Baudier-Lacantinerie & A. Tissier, as well as Plainiol. In 1 M. Plainiol, TRAITE ELEMENTAIRE DE DROIT CIVIL, No. 2698 (12 th ed.1939), reprinted in TREATISE ON THE CIVIL LAW at 594 (La.St.L.Trans.1959), Plain-iol explained that suspension of prescription “is a measure of equity, invented through regard for certain persons who are not in a position to interrupt prescription when it is running against them.” In this statement Plainiol recognized that suspension exists as an equalizer to litigants who find themselves in those instances where interruption of prescription is not available. In the present case, by virtue of the legislative enactment calling for the | .¡necessity of a medical review panel prior to submission of the case to the district court, the legislature by special provision for the inclusion of suspension excluded the applicability of interruption of prescription.
Keeping in mind PlainioPs explanation for the underlying need for the principle of suspension, it is evident that the Louisiana Medical Malpractice Act took cognizance of the need to suspend prescription and fully protects plaintiffs who would otherwise suffer the detrimental effect of liberative prescription. Because the Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider prior to panel review, the act specifies that the filing of a request for review before a panel suspends prescription. La.R.S. 40:1299.47(A)(2)(a). Moreover, as provided by statute, the filing of the complaint prevents prescription from lapsing during the pendency of the review process and further suspends prescription from the time of filing until ninety-days following notification to the claimant or his attorney of the panel opinion. Id. After reviewing these special provisions, it is clear that the legislature has equitably provided for suspension to aid the plaintiff in the medical malpractice arena who is prevented by law from the outset from filing suit against the qualified health care provider.

LeBreton, 97-2221, at pp. 9-10, 714 So.2d at 1230-1231.

Legislation is a solemn expression of legislative will. Interpretation of a law is primarily the search for the Legislature’s intent. La. C.C. art. 2; O’Regan v. Preferred Enterprises, Inc., 98-1602, p. 4 (La.3/17/00), 758 So.2d 124, 128; Cat’s Meow v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198. The starting point for interpretation of any statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993). When a law is clear and unambigu ous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; Perritt v. Dona, 02-2601, p. 15 (La.7/2/03), 849 So.2d 56, 65-66. Moreover, all statutes limiting provisions applicable to qualified health care providers are “special legislation in derogation of the rights ofRtort victims” and are strictly construed. Perritt, 02-2606 at p. 15, 849 So.2d at 66. Based upon the provisions of La. R.S. 9:5628 and La. R.S. 40:1299.47(B)(2)(a) it has been held that the only exception a health care provider is allowed to assert during the medical panel review stage of the proceedings is the peremptory exception of prescription. Id.

Applying these precepts, provided in the Medical Malpractice Act (the Act) and interpreted in the jurisprudence, to the case before us, we find the running of prescription on the medical malpractice claim against Maison De’Ville for its negligent treatment of Diecidue was suspended by the initial filing of the request for the medical review panel on October 13, 2005. The Act does not authorize the assertion of an exception of no right or no cause of action to a request for a medical review panel. Thus, Ordoyne’s capacity to request a medical panel review of the alleged negligent acts of Maison De’Ville has not been challenged. The request appears on its face to be valid and timely and it is still pending. Thus, under the plain wording of the medical malpractice act, prescription on the claim was suspended by the filing and remains suspended.

Maison De’Ville’s exception of prescription, filed on November 17, 2006, to the initial request for a medical review panel, made within a year of the alleged negligent acts giving rise to Diecidue’s injuries and not invalid on its face, had no merit.

At the hearing on the exception of prescription, however, the parties appear to have expanded their arguments and included therein arguments relating to whether Rita Avocato’s survival cause of action concerning Diecidue had prescribed. It is not readily apparent how the district court reached that issue on an exception of prescription filed prior to the subsequent letter by Ordoyne to the Division of Administration. However, because the trial court judgment expressly 17finds any claims by Avocato against Maison De’Ville prescribed, we must address it.

Counsel for Ordoyne wrote a second letter to the Division of Administration, dated December 28, 2006, informing the office that her initial request for a medical review panel, on behalf of Diecidue, should be considered in Ordoyne’s capacity as mandatary for Rita Avocato. A new claim was not being asserted. It was expressly provided that all allegations of malpractice as alleged in the original complaint remained the same. The initial complaint provided that it was filed by Ordoyne on behalf of Anthony Diecidue without any reference to her capacity to do so. The subsequent letter simply provided the legal claimant to Diecidue’s survival action by stating that Ordoyne was filing in the capacity of Avocato’s mandatory.

Maison De’Ville cites and relies on the case of Gorham v. HCA Health Services of Louisiana, 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348, in support of its argument that Avocato’s claims have prescribed. In Gorham, the court reversed the trial court judgment granting an exception of prescription. The court found that the replacement of the decedent’s grandchildren in the request for a medical review panel, over two and a half years after the prescriptive period would have run, by the decedent’s sister, related back suspending prescription. However, in reaching its conclusion, the court found that “[t]he same jurisprudential test governing ‘relating back’ for purposes of adding or substituting parties to a lawsuit also applies in the instant case to the amended complaint” substituting claimants under the medical malpractice act in the request for a medical review panel. The defendants in Gor-ham had also filed an exception of no right of action to the initial complaint filed by the grandchildren.

|sWe do not find the Gorham case persuasive. We note that it was rendered before the Perritt case, referred to above, in which the Supreme Court held that the only exception a health care provider can file during the medical panel review stage is the exception of prescription. The Court expressly held in Perritt that the exception of vagueness and no cause of action are inapplicable to the medical panel review stage of the proceedings. This pronouncement certainly calls into question the reasoning of the Gorham court, applying civil procedure rules to medical malpractice cases in the preliminary stage. Perritt ⅛ finding, contrary to the position espoused in Gorham, that only the prescription exception can be asserted during the medical panel review stage, supports our conclusion herein. Since the health care provider is not afforded the right under the Act to challenge the capacity of the claimant, prescription is suspended, under the Act, by the filing of the request for the panel and it remains suspended, allowing a change to be made in the capacity of the person filing the initial claim.

In this case, the capacity of Ordoyne to file the initial request for a review panel has not been, and indeed cannot be, tested during the medical panel review stage, because the only exception Maison De’Ville can file at this stage is an exception of prescription. The initial request for a medical review panel is not prescribed on its face because it was sent within a year of the alleged injuries. Considering the clear and unambiguous wording of the Act, stating that the filing of a request for a panel review suspends prescription, and the fact that such a request was timely filed and it has not been properly challenged, we find that the filing of this request suspended prescription. Further, with minimal rules in the Act concerning the form or substance of the letter requesting panel review and the inability to challenge its form or substance, we find no prohibition to designating or changing the capacity of the person who filed the request during the period Awhile prescription is suspended. Therefore, we find the trial court erred in concluding that Avoca-to’s survival claims were prescribed.

Further, notwithstanding that there is no authority for applying the rules of Civil Procedure to claims under the medical malpractice act, Perritt v. Dona, 02-2601, pp. 12-13 (La.7/2/03), 849 So.2d 56, 64, we find that consideration of the case, Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040 (La.1985), cited by both parties, supports our view. In Giroir, the deceased’s husband, Roy Giroir, filed suit timely against certain healthcare providers asserting both survival and wrongful death actions. He filed the suit as the administrator of his wife’s estate. Ten days later, but after prescription would have run, he filed an amending petition, adding his wife’s two major children as plaintiffs in both the survival and wrongful death actions, and changing his capacity with respect to the survival action so that he appeared individually. In deciding whether the amending petition related back to the timely filed petition, the Supreme Court looked first to the Code of Civil Procedure, Article 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The Court next looked to the Federal Rules of Civil Procedure, Rule 15(c), as persuasive because our rule was based on the federal rule. The Court noted that “[t]he doctrine of relation back under Rule 15(c) is liberally applied today in federal courts, especially if no disadvantage will accrue to the opposing party.” Id. at 1043. The Court then pronounced the now well known criteria for when the addition of a plaintiff by amending petition should be allowed to relate back, stating:

Accordingly, an amendment adding or substituting a plaintiff should be allowed to relate back if (1) the | ^amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

Giroir at 1044.

Additionally, the Court found even less problematic, the situation, as here, involving only a change in the capacity of the party. The Court found:

The problem of relation back of amendments involving a change in the capacity of the parties is less difficult. Where a plaintiff only seeks to change the capacity in which the action is brought, or in which defendant is sued, because there is no change in the parties, and because all parties are on notice of the facts out of which the claim arose, an amendment will relate back to the date of the original pleading absent prejudice due to the delay in filing.

Giroir at 1044.

In concluding that the amending petition adding two plaintiffs and changing Giroir’s capacity related back to the original petition, the Court noted:

Under the circumstances of this case, no essential protective purpose of the prescriptive statute is violated by permitting relation back of the post prescription amendment based on the same factual situation pleaded in the original timely petition. Through the original pleading the defendants knew that judicial relief was sought arising from the general factual situation alleged, and they were put on notice that their evidence concerning it should be collected and preserved. The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim is made timely, and to protect him from stale claims and from the loss of non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period.

Giroir, at 1045.

Injustice Marcus, concurring in the part of the decision that allowed the change in Giroir’s capacity and the addition of the children’s’ survival action, but dissenting in the part that allowed the children’s wrongful death action, stated most succinctly:

That the plaintiff bringing the action lacks the capacity to sue, for whatever reason, does not matter, if the defendant has been notified of the titles which are the foundation of the demand for the whole of the property or debt, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him. Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973); Flower v. O’Connor, 17 La. 213 (1841). An amendment can be filed after the prescriptive period to name the correct plaintiffs or the correct capacity of the plaintiffs, and the amendment will relate back to the date of the original filing. La.Code Civ.P. art. 1153.

We find the pronouncements of Giroir persuasive, if not controlling, in finding that the trial court erred in ruling that Avocato’s survival action for Diecidue’s injuries resulting from the alleged malpractice of Maison De’Ville has prescribed.

Like Giroir, we find that no essential purpose of the prescriptive statute is violated by permitting the relation back of the post prescription request to designate or change Ordoyne’s capacity in fifing the request for a medical panel review of the alleged malpractice committed by Maison De’Ville. Instead of fifing the request for review herself, without designation of her capacity to do so, on behalf of Diecidue, who was deceased, she was filing it, after appointment as executrix of the Diecidue succession, as the mandatary of Avocato, Diecidue’s sister and heir. Clearly these are closely related claimants. Whether acting on behalf of Diecidue, and/or his estate, Avocato, or, as stated by Justice Marcus in concurring in Giroir, without capacity to sue, Ordoyne’s request, to have the alleged negligent care of Diecidue by Maison De’Ville reviewed, was clear and h ¡..constant. The designation or change in Ordoyne’s capacity to request review effected no change in the claim.

The claims against Maison De’Ville remained exactly the same, arising out of the same conduct, transaction, or occurrence set forth in the original letter. Through the original letter, Maison De’Ville knew that allegations of malpractice were being brought against it in relation to the care and treatment, or lack thereof, of Diecidue, whether by his estate or the person designated in La. C.C. art. 2315.1. They were put on notice that the evidence concerning the matter should be collected and preserved. Despite its argument to the contrary, we find Maison De’Ville has not been prejudiced by the delay in designating or changing Ordoyne’s capacity. Since Ordoyne’s capacity to request review had not been challenged, Maison De’Ville had no legal reason to conclude the claim was invalid. The purpose of prescriptive statutes as set out in Giroir, “to protect him [the defendant] against lack of notification of a formal claim within the prescriptive period,” is satisfied in this case. Moreover, we find the reasoning of Giroir even more persuasive here where we are not dealing with the filing of suit, but only with a letter to the Division of Administration requesting a medical review panel, with minimal procedural rules applicable to form or substance.

Accordingly, we find that the trial court erred in finding “that all of Rita Avocato’s survival action claims concerning Anthony Diecidue, Jr. have prescribed.” We reverse the judgment and remand the matter for further proceedings consistent with the views expressed herein.

REVERSED.

      . Ordoyne could have had the Power of Attorney from Avocato or Cherrier.