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    Ollie NEWSOM, et al. v. LAKE CHARLES MEMORIAL HOSPITAL.
    No. 2006-1468.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      John L. Hammons, Nelson & Hammons, A.P.L.C., Shreveport, Louisiana, for Plaintiffs/Appellants Ollie Newsom, Wanda Newsom Richard, Darrell Williams, Pierce Newsom, Reba Martell, and Debbie Johnson.
    Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, Louisiana, for Defendant/Appellee Lake Charles Memorial Hospital.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Liu this medical malpractice case, Plaintiffs appeal a jury verdict finding that they failed to meet their burden of proving the applicable standard of care. For the following reasons, we find that a reasonable factual basis does not exist to support the jury verdict and that the record establishes that the jury verdict is clearly wrong and manifestly erroneous. Accordingly, we reverse the jury verdict and render judgment.

FACTS

On March 18, 1999, Henslin Newsom (Mr. Newsom) was admitted to Lake Charles Memorial Hospital (Lake Charles Memorial). He underwent a coronary angiography which revealed coronary arteriosclerosis. On March 19, 1999, in preparation for the required triple bypass surgery, an intra-aortic augmentation balloon was inserted through Mr. Newsom’s femoral artery. Mr. Newsom was then transferred to the hospital’s intensive care unit (ICU). On March 20, 1999, he underwent coronary artery bypass surgery and was transferred, post-operatively, back to the ICU where he was to receive one-to-one nursing care from, among others, Samantha Harper (Harper) , a registered nurse.

On March 21, 1999, while in the ICU, Mr. Newsom’s cardiologist, Dr. Edward F. Crocker, ordered that the intra-aortic balloon pump (the pump) that had been inserted in Mr. Newsom’s femoral artery be removed due to its malfunction. Scott Turner, a radiological technician, removed the pump in accordance with the doctor’s orders. Approximately two hours after the pump was removed, Mr. Newsom began to hemorrhage from said femoral artery. A code blue was called. Mr. New-som was then resuscitated and placed on a ventilator. Mr. Newsom remained in a eo-matose |2condition for ten days until his demise on March 31,1999.

Mr. Newsom was survived by his spouse of over thirty-five years, Ollie Newsom, and several major children, five of which were listed on the jury verdict form, namely, Wanda Newsom Richard, Darrell Williams, Pierce Newsom, Reba Martell, and Debbie Johnson. Mr. Newsom’s surviving spouse and listed major children, Plaintiffs herein, initiated this medical malpractice claim against Defendant, Lake Charles Memorial, by filing a request for a medical review panel on March 16, 2000. The medical review panel rendered its opinion, finding that Lake Charles Memorial did not breach the applicable standard of care. Plaintiffs subsequently filed suit in Calcasieu Parish District Court, and the matter proceeded to trial by jury from June 19 through 22, 2006. The jury returned a verdict in favor of Lake Charles Memorial, finding that Plaintiffs did not prove the applicable standard of care. Judgment in accordance with the jury verdict was signed by the trial court on July 27, 2006. It is from this judgment that Plaintiffs appeal.

ISSUE

The sole issue raised by Plaintiffs for our review is whether the jury was manifestly erroneous in finding that Plaintiffs did not prove the applicable standard of care owed to Mr. Newsom by Lake Charles Memorial Hospital.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a jury’s finding of fact absent manifest error or unless it is clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617|3So.2d 880 (La.1993).

Greer v. State, Through Dep’t Transp. and Dev., 06-417, pp. 2-3 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, 145.

Burden of Proof

In a medical malpractice action, La.R.S. 9:2794(A) provides that the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

“Thus, according to La.R.S. 9:2794(A), any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries.” Browning v. West Calcasieu Cameron Hosp., 03-332, p. 10 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, 804, writ denied, 03-3354 (La.12/13/04), 867 So.2d 691 (citing Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228).

We have thoroughly examined the record in these proceedings in light of the foregoing legal principles. We find from the record that a reasonable factual basis Rdoes not exist to support the jury’s finding that Plaintiffs failed to prove the standard of care owed by Lake Charles Memorial to Mr. Newsom. We further find that said jury verdict is clearly wrong, manifestly erroneous, and must be reversed.

Applicable Standard of Care

In the case at bar, the jury was presented with special verdict interrogatories. The first interrogatory on the verdict form asked if the jury found by a preponderance of the evidence that Plaintiffs proved the applicable standard of care owed by Lake Charles Memorial to Mr. Newsom. The jury’s response was “No.”

Plaintiffs assert in brief that they presented ample testimony from three expert witnesses that established the applicable standard of care. Additionally, we note that a plaintiff can establish the applicable standard of care through defense expert testimony and evidence as well. Pfiffner, 643 So.2d 1228. In this case, we find that the record contains sufficient independent and aggregate expert testimony establishing the standard of care owed by Lake Charles Memorial to Mr. Newsom.

The first expert testimony presented by Plaintiffs at trial was that of Beatrice Launius (Launius), a nurse practitioner, who was accepted as an expert in nursing. Launius testified that the applicable standard of care required that a partial lBthromboplastin test (PTT) be performed before the pump was removed, Launius also testified that nursing standards require that the nurse chart the nature and time that pressure is applied to the patient’s femoral artery after the pump is removed. Another standard set forth by Launius was an obligation of the attending nurse to closely observe the patient, especially one such as Mr. Newsom, who was confused or disoriented. Launius provided her expert opinion regarding the standard of care required of a nurse in responding to a sixty-point drop in blood pressure. Launius opined that a nurse should conduct a physical exam of' the patient, obtain lab work, place a call to his physician, and consider hemorrhage at the pump insertion sight in her assessment. Finally, Launius was questioned as to the standard of care which was most discussed at the trial; namely, the practical application of the term one-to-one nursing care. According to Launius, if a nurse has been assigned to care for a patient on a one-to-one basis, that nurse is not allowed to leave the patient’s bedside at any time without asking a colleague to take over the patient’s care in her absence. It was the opinion of Launius that the foregoing standards were required to have been met by Lake Charles Memorial, through its employees, while caring for Mr. Newsom.

The second expert witness to testify'on behalf of Plaintiffs as to the applicable standard of care was Dr. David Elizardi (Dr. Elizardi), a cardiologist. Dr. Elizardi testified as to the manner in which the pump was to be removed. It was his opinion that the technician was required to apply the correct method and type of pressure for the proper period of time.to allow for appropriate clotting. Additionally, in his opinion, the standard of care required the nurse,to chart the nature and duration of the pressure which was applied. According to Dr. Elizardi, when Mr. Newsom Inexperienced a sixty-point drop in his blood pressure, applicable standards required the nurse to contact the patient’s doctor to notify him of the patient’s condition. Finally, Dr. Elizardi testified that the meaning of the one-to-one designation of Mr. Newsom meant that the -nurse assigned to him should have been with him and observing him at all. times in order to be compliant with that designation.

Patsy McHan (McHan), who was accept1 ed as an expert in the field of registered nursing specializing in ICU care, and a medical legal consultant, also testified on behalf of Plaintiffs on the issue of standard of care. In McHan’s opinion, the decrease in Mr. Newsom’s blood pressure required that the nurse not leave his side; and further, she was to call out for help and instruct someone to contact the patient’s doctor. She also testified that applicable nursing, standards require complete and accurate charting by the nurse .attending to that patient. This expert also testified that since Mr. Newsom was given a qne-to-one designation, the standard of care for a nurse required that he be “constantly observed.” Under such circumstances, according to McHan, if the nurse leaves the patient’s presence, she must make arrangements for someone else to monitor her patient one-to-one.

Lake Charles Memorial, through the testimony of its expert witnesses, also put forth evidence before the jury on the applicable standard of care which it owed Mr. Newsom. Denise Collette (Collette), a registered nurse certified in critical care, testified as to the performance of PTT. It was her testimony that the American Association of Critical-Care Nurses (AACN) Procedural Manual for Critical Care does not require that any coagulation test be done before a pump is removed. She also testified that the manual does provide that pressure be applied to the femoral artery after the removal of a pump for thirty to forty-five minutes. On the issue of |7appropriate charting by a nurse, Collette testified that a nurse is required to chart significant findings and that said charting may be done collectively. Finally, Collette opined that the phrase one-to-one nursing care is a term used to describe a manner of observing a patient where a nurse is not given more than one patient to care for. When asked for a reference defining the phrase one-to-one nursing care, Collette testified that there was none; further, the AACN’s manual for critical care does not instruct a nurse to never leave the bedside of a patient with a one-to-one designation.

Another expert witness called by Lake Charles Memorial was Sherry Haley (Haley), a registered nurse with a master’s degree in nursing. Haley testified that generally “[t]he standard of care expected of nurses ... is to do the best to their ability, knowledge and skills.” When asked her expert opinion on the appropriate response to a decrease in a patient’s blood pressure, she testified that it is one thing to be considered in assessing the patient, but that considering all other findings relative to Mr. Newsom’s condition at that time, she would not “be concerned about that blood pressure enough to call the physician.” Haley also opined that a nurse cannot physically chart everything that she does on a patient and that it is permissible for a nurse to chart significant findings collectively. Specifically regarding one-to-one nursing care, Haley stated that the phrase means that one nurse is assigned to one patient. She disagreed with the proposition that a one-to-one designation meant that the nurse could never leave the patient’s bedside and opined that such would be an impossibility.

Although Lake Charles Memorial contends that Plaintiffs “failed to provide any documentary evidence of standard of care policies and procedures or any other | ssource other than their expert’s own oral testimony to establish what they felt [the] standard of care should be[,]” it also asserts in brief that “[t]he hospital established through recognized nursing guidelines, its own policy and procedure and multiple witnesses of what the appropriate standard of care was at Lake Charles Memorial Hospital.” Thus, while Lake Charles Memorial argues that Plaintiffs failed to meet their burden of proving the standard of care, it also contends that the standard of care was proven by them. No less than four nurses and one physician, each of which were qualified as experts in their respective fields, testified as to a nurse’s standard of care under the facts and circumstances of this case. For the detailed reasons set forth above, we find that ample evidence was presented to the jury on the standard of care owed to Mr. Newsom by Lake Charles Memorial. Having reviewed the record in its entirety, we find that a reasonable factual basis does not exist to support the jury verdict; therefore, the jury was clearly wrong and manifestly erroneous in its determination that Plaintiffs failed to prove the standard of care. We, therefore, reverse the jury verdict.

Since we have determined that the jury erroneously found that the applicable standard of care was not proven, and the remaining issues in this case having not been addressed, we must now undertake a de novo review of these remaining issues, i.e., a breach, vel non, of the applicable standard of care and, if so, causation and damages. Robicheaux v. Adly, 02-37 (La.App. 3 Cir. 6/12/02), 827 So.2d 429, writ denied, 02-2783 (La.2/7/03), 836 So.2d 100; Williams v. Dauterive Hosp., 99-1935 (La.App. 3 Cir. 10/11/200), 771 So.2d 763, writ denied, 00-3107 (La.1/5/01), 778 So.2d 1144.

Plaintiffs also argue in brief that “[t]he members of the jury were apparently confused by the first question on the Jury Verdict Form” as evidenced by the written 19question they presented to the trial judge jury during deliberations. Having determined that the jury was manifestly erroneous in finding that Plaintiffs failed to establish the appropriate standard of care, the issue of jury confusion has been rendered moot.

Breach of the Standard of Care

An examination of the issue of whether Lake Charles Memorial breached the standard of care owed to Mr. Newsom requires additional discussion of the patient’s condition and the medical treatment administered to him. As set forth at the outset of this opinion, Mr. Newsom was admitted to Lake Charles Memorial on March 18, 1999, and underwent a coronary angiography, which revealed coronary arteriosclerosis. To assist Mr. Newsom’s heart function prior to his surgery, an intra-aortic augmentation balloon pump was inserted on March 19, 1999, and Mr. Newsom was kept in the ICU. The following day, he underwent coronary artery triple bypass surgery. Post-operatively, he was returned to the ICU where he was considered to be a high risk patient and designated to receive one-to-one nursing care. The pump which had been inserted into Mr. Newsom’s femoral artery remained in place while he was in the ICU. He was to be assessed every ten to fifteen minutes for the first two and one half hours, and every thirty minutes thereafter.

On March 21,1999, at 1:00 a.m., Harper, an ICU nurse assigned to Mr. Newsom for one-to-one care, noted that the balloon pump was malfunctioning. A | inradiological technician, Scott Turner, was called. After discussion with Mr. New-som’s cardiologist, Dr. Crocker, and in accordance with the doctor’s instruction, at approximately 2:00 a.m., Turner testified that he removed the pump in the presence of Harper. At 2:30 a.m., Mr. Newsom was anxious, moving about in the bed, told to keep his right leg straight, and given morphine sulphate for his complaints of pain. At 3:00 a.m., his vital signs were stable, his blood pressure was 169/69, and he was “resting quietly” with no acute distress noted. At 3:30 a.m., he was again described as “anxious” and was “moving about in bed.” Additionally, at 3:30 a.m., Mr. Newsom experienced a sixty-point decrease or drop in his blood pressure down to 110/88. In response, Harper reassessed Mr. Newsom by looking at the puncture site in the femoral artery, noting that the dressing was dry and intact, checking his heart rate, and taking his pedal pulse. According to Harper, these findings reassured her that the decrease in Mr. New-som’s blood pressure was not the result of bleeding. Well aware of the medical history of Mr. Newsom, the seriousness of his condition, and the one-to-one designation of his care to her, Harper then left the room to get linens and supplies in order to re-stock the room and eventually give Mr. Newsom a bath. Approximately eighteen minutes later, while at the nurses station, Harper heard the alarm of a monitor and returned to Mr. Newsom’s room to check on him. She began what is referred to as a head-to-toe assessment. When she pulled the blankets back from Mr. New-som, she saw blood. She recognized that the patient was bleeding from his femoral artery where the pump had been removed. She responded by applying pressure to the site and yelled for help. A code blue was called. Mr. Newsom was resuscitated and, due to his condition, placed on a ventilator. He never |nregained consciousness and died on March 31,1999.

Plaintiffs assert that Lake Charles Memorial, through its employee nurse and radiological technician, breached the standard of care which it owed to Mr. Newsom in the actions or inactions taken at more than one interval during the course of his care and treatment. We have reviewed each of these assertions and, considering the totality of the circumstances, find merit in Plaintiffs’ contention that Lake Charles Memorial, through its employee nurse, breached the applicable standard of care in its care and treatment of Mr. New-som. According to the doctrine of respon-deat superior, Lake Charles Memorial is vicariously liable and answerable to Plaintiffs for the negligence of its employees in the course and scope of their employment. La.Civ.Code art. 2320.

McHan testified that at 3:00 a.m. Mr. Newsom’s blood pressure was at 169/69 at that he was described as resting peacefully. However, thirty minutes later, his condition was quite different. Mr. Newsom’s blood pressure had decreased to 110/88, and he had become anxious and was moving about in the bed. McHan testified that since Mr. Newsom was a cardiac bypass patient, who had a pump | ^removed approximately one hour earlier, a sixty-point drop in Mr. Newsom’s blood pressure was “very significant.” She explained that even with sedation, Mr. Newsom had not had such a drop in blood pressure and that a decrease in blood pressure “from 169 to 110[was] a drastic change” which would have alarmed her very much. McHan testified that in response to such a decrease in a patient’s blood pressure, she would not have left the bedside, but would have had somebody in the unit contact the patient’s doctor. In McHan’s opinion, the medical condition of Mr. Newsom at 3:30 a.m. was a life-threatening emergency; yet, despite Harper’s inability to explain the change in his condition, she took no affirmative steps to help the patient, and she did not contact his physician. Thus, McHan testified that Harper’s actions were below the applicable nursing standards.

Dr. Elizardi agreed with McHan that from 3:00 a.m., when Mr. Newsom was resting quietly, until 3:30 a.m., the condition of Mr. Newsom was very different. Specifically, in his opinion, “[a] [sixty]point drop in any patient over [thirty] minutes is significant at any time,” and particularly for Mr. Newsom who had had the pump recently removed. Dr. Elizardi explained that because the pump had recently been removed, that Mr. Newsom was anxious and that his blood pressure had dropped significantly, which indicated that “something was not right.” He would have expected that the patient’s physician be contacted. In Dr. Elizardi’s opinion, the patient needed further assessment and evaluation. According to Dr. Elizardi, it was below the applicable standard of care for Harper not to have contacted The Mr. Newsom’s doctor to advise him of the significant changes in his patient’s status, particularly since she had not made a determination of the cause of a sixty-point drop in blood pressure.

1^Launius also testified that in her opinion Harper breached the applicable nursing standard of care by failing to appropriately respond, to the decrease in Mr. Newsom’s blood pressure. Noting that 148/69 was the lowest the patient’s pressure had been, Launius described this decrease in his blood pressure as a “big drop” which she opined was “significant” enough to cause concern that the patient was either bleeding or was having a problem with his heart function. In order to determine whether he was bleeding externally or internally, Launius testified that the dressing site should have been observed and an examination made of the thigh to detect any change in the tissues, as well as observing underneath the patient to, insure that he was not bleeding and that blood was not collecting underneath him. Launius also testified that she would have considered calling the patient’s physician and running some lab work to determine if bleeding was occurring. In short, Launius was of the opinion that Mr. Newsom’s medical condition “required further intervention and investigation.” Lau-nius testified that in Harper’s care of Mr. Newsom, she failed to provide him with adequate attention, and her failure to take any of these measures was a breach of the applicable nursing standards.

Undisputedly, Dr. Crocker was not contacted at 3:30 a.m. when Mr. Newsom’s blood pressure dropped from 169/69-.to 110/88. Harper testified that she was aware of the drop in blood pressure and that she reassured- herself with multiple indicators that the drop in pressure was not indicative of a significant event. Specifically, she determined that Mr. New-som’s heart rate was not elevated, that his dressing was dry and intact, and that his pedal pulses were good. Therefore, she testified that the isolated decrease in blood pressure, when considered with her overall assessment, did not require that the physician be called. We disagree.

| uAs Harper explained in detail, post-operatively, Mr. Newsom was at risk for multiple complications including stroke, pulmonary embolus, respiratory problems, cardiac arrest, and kidney problems, all in addition- to a potential hemorrhage from the groin or surgical site. For all of these reasons, Mr. Newsom was considered a high risk patient assigned one-to-one nursing care to be administered by Harper.

In determining whether or not there was a breach of the standard of care in this case, we do not look at one isolated action or inaction, but at the totality of the circumstances. Harper was well aware of the fact that Mr. Newsom had just undergone triple bypass heart surgery on March 20, 1999, the effects of said surgery, and the potential complications therefrom. She was aware that Mr. Newsom, even though restrained, had previously extubat-ed himself and that he was confused or disoriented. She was also aware that the pump inserted in Mr. Newsom’s femoral artery had malfunctioned around 1:00 a.m. on March 21, 1999, and that it had been removed by the technician pursuant to the doctor’s orders an hour later, around 2:00 a.m. Harper was likewise aware of the fact that the removal of the pump left a hole approximately the size of the circumference of a pencil in Mr. Newsom’s femoral artery, which had to be sealed off and closely monitored to avoid any hemorrhage.

The medical chart notes in the record clearly indicate that at 2:30 a.m., Mr. New-som was moving about in bed, complaining of pain, instructed to keep his right leg straight, and given morphine sulphate. Harper checked Mr. Newsom at 3:00 a.m. and noted that his vital signs were stable and that he was “resting quietly.” However, at 3:30 a.m., a significant change occurred. Harper noted that Mr. Newsom was again “moving about in bed[,]” anxious, and that his blood pressure had dropped nearly | issixty points. She stated that she reassessed him, tried to determine the cause of the significant drop in blood pressure, and found no bleeding. At this time, Harper opted not to contact the doctor in charge and simply left the room to get “supplies” and “linens” to restock the room and bathe the patient.

Approximately eighteen minutes later, while at the nurses’ station, all the while Mr. Newsom being left alone and unattended in his room, Mr. Newsom’s alarm sounded. Harper rushed to Mr. Newsom’s room, assessed her patient, and found him hemorrhaging and in a “pool of blood.” Mr. Newsom had lost four units (half of a gallon) of blood. Harper immediately attended to Mr. Newsom, signaled a code blue, and yelled for assistance. Mr. New-som lost consciousness, never regained it, and died ten days later on March 31, 1999.

Having thoroughly reviewed the medical and legal record in this case, we find from a totality of the circumstances that the post-operative nursing treatment administered to Mr. Newsom breached the standard of care owed to Mr. Newsom by Lake Charles Memorial. Not any one action or inaction of Harper constituted a breach of the standard of care, but all factors considered in the manner in which Mr. Newsom was treated, post-operatively, did breach the standard of care. The mere fact alone that Harper chose not to call the doctor at 3:30 a.m. when Mr. Newsom’s blood pressure dropped sixty points did not in and of itself constitute a breach of the standard of care. The mere fact alone that Harper was not constantly at Mr. Newsom’s side in her one-to-one care did not breach the standard of care.

However, knowing that Mr. Newsom had just undergone triple bypass heart surgery, that he was confused/disoriented to the point of extubation, that he was restless, that he had just had a pump removed from his femoral artery leaving a hole |1fithe size of the circumference of a pencil, that he was subject to hemorrhage, that he was anxious (despite having been given morphine), that a hemorrhage or embolism could result in a serious/life threatening situation, that he had encountered a sixty-point drop in blood pressure, that despite her assessment she was unable to determine the cause of that sixty-point drop in his blood pressure, and despite the designation of one-to-one care of him to her, Harper chose not to call the doctor, and simply left Mr. Newsom, unobserved and unattended, for eighteen minutes while she sought supplies and linens to restock Mr. Newsom’s room. In fact, Harper was at the nurses’ station when Mr. Newsom’s alarm sounded, some eighteen minutes after she had left him alone. It is unclear from the record as to why Harper was at the nurses’ station at this critical time and just how long she would have remained at the nurses’ station had the alarm in Mr. Newsom’s room not sounded. Harper never asked for help from any other hospital personnel in gathering linens and supplies. She never asked for any assistance until the code blue was called. Ironically, she did testify, however, that she would get another nurse to sit for her if she needed to go to the restroom, that she called the doctor when Mr. Newsom extubated himself, and that the doctor was called when the pump malfunctioned, but the doctor was not called when Mr. Newsom’s blood pressure inexplicably dropped sixty points and, after her assessment, she was unable to determine the cause therefor. In lieu thereof, Harper took it upon herself to leave Mr. New-som, unobserved and unattended, to go off in search of linens and supplies, and be inexplicably at the nurses’ station some eighteen minutes later, when Mr. New-som’s alarm sounds. Harper’s actions and/or inactions in her care of Mr. New-som from 3:30 a.m. until the alarm sounded certainly do not satisfy her designated obligation of providing one-to-one care to Mr. Newsom.

| ^Considering the totality of these factors and events, we find that Lake Charles Memorial breached the standard of care due and owing its patient, Mr. Newsom.

Causation

In order to prevail in a medical malpractice claim, Plaintiffs also have the burden of proving “[t]hat as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” La. R.S. 9:2794(A)(3). In the instant matter, Plaintiffs assert that but for the negligence of Lake Charles Memorial, through its employee nurse, Mr. Newsom’s injuries and death would not have occurred. They contend that “[t]he hemorrhage was a substantial contributing factor in his brain damage and ultimately his death.” We agree.

On the issue of causation, Plaintiffs presented the expert testimony of Dr. Elizardi and Dr. George M. McCormick (Dr. McCormick). In medical terminology, according to Dr. McCormick, the cause of Mr. Newsom’s death was “anoxic encephalopathy secondary to external blood loss.” Dr. McCormick explained that the bleed is what led to Mr. Newsom’s ultimate death, and the underlying cause was his cardiac condition. Dr. Elizardi agreed. It was his testimony that the hemorrhage was a substantial contributing factor in Mr. New-som’s brain damage and ultimately his death. In Dr. Elizardi’s opinion, Mr. New-som lost enough blood to result in cardiac failure and brain damage.

Based on the foregoing, we find that as a result of the fault of Lake Charles Memorial, through its employee nurse, Mr. Newsom suffered injuries and death that would not have otherwise occurred. Therefore, we find that Plaintiffs have met their [isburden of proving the proximate causal connection between the breach of the standard of care and Mr. Newsom’s injuries and ultimate death as required under La.R.S. 9:2794(A)(3).

Damages

Louisiana Revised Statutes 40:1299.42 provides that “[t]he 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.” Additionally, “[t]he malpractice cap is administered per patient, rather than per plaintiff.” Hall v. Brookshire Bros. Ltd., 01-1506, p. 29 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010, 1029, dec. aff'd, 02-2404 (La.6/27/03), 848 So.2d 559 (citing Hollingsworth v. Bowers, 96-257 (La.App. 3 Cir. 12/30/96), 690 So.2d 825).

The present medical malpractice claim includes a survival action on behalf of Mr. Newsom and wrongful death claims of his spouse and five of his major children. However, in awarding damages, we are mindful that the total amount recoverable in the instant case for the injuries and death to Mr. Newsom is $500,000.00. We also acknowledge the stipulation of the parties to medical bills in the amount of $10,000.00, and funeral and burial expenses of $4,988.71.

We find from a review of the record, particularly supported by the testimony of the surviving spouse and five major children as to the close and loving relationship each had with Mr. Newsom, that the damages sustained as a result of the injury and death to Mr. Newsom exceed the $500,000.00 statutory cap on damages. Had there been no statutory cap on damages, we would have awarded wrongful death damages to Ollie Newsom, the surviving spouse of Mr. Newsom for over thirty-five years, the |18sum of $250,000.00 (which includes the stipulated medical expenses of $10,000.00, and the stipulated funeral and burial expenses of $4,988.71). For the five listed major children, we would have awarded wrongful death damages of $100,000.00 to each. However, considering the $500,000.00 statutory cap, the legally restricted award must be apportioned as follows:

a. Ollie Newsom, surviving spouse .. $166,666.67 (whieh includes the stipulated medical and funeral expenses)
b. Wanda Newsom Richard. 66,666.66
c. Darrell Williams. 66,666.66
d. Pearce Newsom. 66,666.67
e. Reba Martell. 66,666.67
f. Debbie Johnson. 66,666.67

We further find that Plaintiffs have failed to prove by a preponderance of the evidence any survival action; therefore, no damages were awarded therefor. Furthermore, any damage claim in addition to Plaintiffs’ wrongful death claims would be rendered moot, considering our finding that the wrongful death claims alone exceed the statutory cap.

DECREE

For the foregoing reasons, we reverse the jury’s verdict finding that Plaintiffs did not prove the applicable standard of care owed by Lake Charles Memorial Hospital to Mr. Newsom. We further find that Lake Charles Memorial Hospital breached the standard of care owed to Mr. Newsom and that said breach was the proximate cause of Mr. Newsom’s injuries and ultimate death. Therefore, we render judgment herein in favor of Ollie Newsom, Wanda Newsom Richard, Darrell Williams, Pierce Newsom, Reba Martell, and Debbie Johnson, and against Lake Charles Memorial Hospital as follows:

For the foregoing reasons, IT IS ORDERED, ADJUDGED, AND DECREED 12pthat the judgment of the trial court pursuant to jury verdict is reversed and set aside and that there be judgment herein in favor of Ollie Newsom and against Lake Charles Memorial Hospital in the amount of ONE HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SIX AND 67/100 ($166,666.67) DOLLARS, together with legal interest from the date of the filing of the complaint (March 16, 2000) until paid as per La.R.S. 40:1299.47(M), and for all costs of trial and these appellate proceedings.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Pierce Newsom, Reba Martell, and Debbie Johnson and against Lake Charles Memorial Hospital in the amount of SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SIX AND 67/100 ($66,666.67) DOLLARS, each, together with legal interest from the date of the filing of the complaint (March 16, 2000) until paid as per La.R.S. 40:1299.47(M), and for all costs of trial and these appellate proceedings.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Wanda Newsom Richard and Darrell Williams and against Lake Charles Memorial Hospital in the amount of SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SIX AND 66/100 ($66,666.66) DOLLARS, each, together with legal interest from the date of the filing of the complaint (March 16, 2000) until paid as per La.R.S. 40:1299.47(M), and for all costs of trial and these appellate proceedings.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the liability [ ai of Lake Charles Memorial Hospital is subject to the provisions of La.R.S. 40:1299.42.

REVERSED AND RENDERED.

      . At the time of trial, Samantha Harper went by Samantha Darbonne. For consistency, we will refer to this individual as Samantha Harper throughout this opinion.

      . This expert witness was called by Plaintiffs to testify as to the applicable standard of care owed by Lake Charles Memorial to Mr. New-som. It was her testimony that she disagreed with the medical review panel’s finding that there was no substandard nursing care in this case. However, noteworthy is Launius' testimony that, in her opinion, physicians are not competent to comment on the standard of nursing care because they are not nurses. This opinion, of course, is legally incorrect. Louisiana Revised Statutes 40:1299.47(C) provides that "[t]he medical review panel shall consist of three health care providers who hold unlimited licenses to practice their profession in Louisiana and one attorney.” Additionally, subject to the limitations set forth in La.R.S. 40:1299.47(C)(3)(j), La. R.S. 40:1299.47(C)(3)(f) states that "[a] physician who holds an unrestricted license to practice medicine by the Louisiana State Board of Medical Examiners and who is engaged in the active practice of medicine in this state, whether in the teaching profession or otherwise, shall be available for selection as a member of a medical review panel. Under the provisions of medical malpractice act, "[t]he panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” Thus, Launius's opinion that physicians are not competent to testify on the standard of care required of nurses is legally incorrect.

      . A partial thromboplastin test (PTT) and an activated clotting time test (ACT) are two coagulation tests which are used to determine a patient's clotting time.

      . Haley was also a member of the Louisiana State Board of Nursing for five years and served as the president of the board for two terms.

      . The record contains considerable medical testimony on the manner in which such a pump is to be inserted into the femoral artery. Undisputedly, such a procedure requires that a significant hole be made in the artery for the insertion of an introducer tube into which a catheter is placed so that the balloon may be inserted. The procedure requires that a hole approximately the size of the circumference of a pencil be made in the artery. Additionally, when the pump is removed from a patient, a sizable hole remains, creating a known complication of hemorrhage (heavy bleeding) from the site. Therefore, following the removal of the pump, direct pressure is applied to the site until hemostasis (clotting) occurs.

      . The pedal pulse rate is taken at the top of a person’s foot, and on the inside of the ankle, to ensure blood flow to the extremity.

      . Louisiana Civil Code Article 2320 provides as follows:
      Art. 2320. Acts of servants, students or apprentices
      Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.
      The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

      . Extubation is the removal of a tube from a hollow organ or body passage.

      . Dr. McCormick is the duly elected coroner in Caddo Parish, and a special deputy coroner in Bossier Parish, who was called to testify as to the cause of Mr. Newsom’s death.

      . Louisiana Revised Statutes 40:1299.47(M) provides that "[l]egal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part.”


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Kenyetta M. BROOKS, et al. v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA d/b/a Christus St. Patrick Hospital of Lake Charles, et al.
    No. 2006-1497.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs-Appellants.
    Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, LA, for Defendant-Appellee.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

Un this medical malpractice action, Plaintiffs, Kenyetta M. Brooks and Derrick D. Brooks, appeal the trial court’s grant of summary judgment in favor of Defendant, Christus Health Southwestern Louisiana d/b/a Christus St. Patrick Hospital of Lake Charles (St. Patrick Hospital). The res nova issue presented by this appeal is whether or not a hospital has a duty to perform an autopsy.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of June 20, 2000, thirty-nine-year-old Nancy Brooks underwent bilateral breast reduction surgery performed by Dr. E. Clyde Smoot at St. Patrick Hospital. Following the surgery, which was performed without complications, Ms. Brooks was admitted for an overnight stay. By noon on the 20th, Ms. Brooks was responsive and able to walk. However, at 1:53 p.m., Nurse K. Schexnaider found Ms. Brooks to be unresponsive. According to the nurses’ notes, Ms. Brooks was observed to be “breathing loudly with heavy tongue (snoring-like) no responsive [sic] to verbal or painful stimuli ... noticed periods or apnea.” A code blue was called at 1:56 p.m., but efforts to revive Ms. Brooks were unsuccessful. Ms. Brooks was pronounced dead at 2:25 p.m. The coroner arrived at 3:40 p.m. and determined that an autopsy was not necessary. The stated cause of Ms. Brooks’ death was ischemic cardiac event.

According to the medical records, following Ms. Brooks’ death, Dr. Smoot recommended that an autopsy be performed. Ms. Brooks’ daughter, Kenyetta, requested that said autopsy be performed. No autopsy was performed. Kenyetta claimed, in an affidavit, that she insisted an autopsy be performed but was told that an advanced payment of $2,000.00 would be necessary. She further averred that | ¡^neither she nor any member of her family had sufficient funds to pay for the autopsy but that her mother was covered by Medicare and Medicaid.

Plaintiffs, the surviving children of Ms. Brooks, instituted a medical malpractice action against both Dr. Smoot and St. Patrick Hospital. The failure to perform an autopsy was not at issue before the medical review panel. The medical review panel found in favor of both Defendants, specifically finding that the patient was treated appropriately in the pre-operative, intra-operative, and post-operative periods. The panel noted that “her controlled hypertension, her obesity, and her managed depression were not contra-indications for the surgery.” The panel also found that the code was managed appropriately by the physicians and the staff of St. Patrick Hospital.

Following the panel opinion, Plaintiffs filed the instant suit. Both Dr. Smoot and St. Patrick Hospital filed motions for summary judgment based on the panel opinion as well as the assertion that Plaintiffs failed to produce any expert medical testimony to support their allegations that Defendants breached the applicable standards of care. In opposition to the motions for summary judgment, Plaintiffs argued that the doctrine of res ipsa loquitur should apply and that the hospital had a duty to perform an autopsy. Plaintiffs argued that, without an autopsy, the exact cause of Ms. Brooks’ death could not be determined. The trial court found that res ipsa did not apply and granted the motion for summary judgment in favor of Dr. Smoot. With respect to St. Patrick Hospital’s motion for summary judgment, the trial court re-fixed the hearing to allow additional time for research on the issue of whether the hospital had a duty to perform an autopsy. Following a hearing, the trial court granted St. Patrick Hospital’s motion for summary judgment and found that there was no burden on the hospital to provide an autopsy. Plaintiffs now appeal the grant [¡¡of summary judgment in favor of St. Patrick Hospital but do not appeal the grant of summary judgment in favor of Dr. Smoot.

DISCUSSION

Summary Judgment

Following well-established jurisprudence, we review this summary judgment de novo, using the same criteria as the trial court, in order to determine whether summary judgment is appropriate. Butler v. DePuy, 04-101 (La.App. 3 Cir. 6/9/04), 876 So.2d 259 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730). Therefore, we must determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). With respect to the burden of proof in a motion for summary judgment, we explained in Butler, 876 So.2d at 261:

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but rather he must point out that there is an • absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

In deciding this matter, we must first consider the applicable burden of proof for a plaintiff in a medical malpractice case, which is found in La.R.S. 9:2794. That statute states that a plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached; however, there is an exception to this general rule in eases where the |4negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. See Butler, 876 So.2d 259 and Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228. Plaintiffs rely on Pfiffner for the proposition that they need no expert testimony to establish their case. In this case, we find that Plaintiffs would be required to produce expert testimony to establish the applicable standard of care and a breach thereof. While it has been recognized that a plaintiff can establish these things through the testimony of the defendant’s expert witness, this option is not available to Plaintiffs because the expert testimony, in the form of the panel opinion [which is admissible as expert evidence on a motion for summary judgment pursuant to Richoux v. Tulane Med. Ctr., 617 So.2d 13 (La.App. 4 Cir.1993) ], indicated that there was no breach of the applicable standards of care by either the doctor or the hospital in this case. See Thomas, 833 So.2d 548 (citing Sandifer v. Wise, 00-293, 00-294 (La.App. 4 Cir. 2/7/01), 780 So.2d 1099). Furthermore, the panel did not address the question of whether an autopsy should have been performed because the issue was not presented to it.

St. Patrick Hospital met its initial burden of proof on its motion for summary judgment. The panel opinion showed that there is an absence of factual support for Plaintiffs’ contention that there was a breach of the standard of care, which is an essential element of Plaintiffs’ claim. The burden thus shifted to Plaintiffs to “sufficiently establish the existence of proof of an essential element of [their] claim” which they “bear the burden of proving at trial.” Alex v. Dr. X, 96-1196, p. 4 (La.App. 3 Cir. 3/5/97), 692 So.2d 499, 502 (citing Short v. Giffin, 96-0361 (La.App. 4 Cir. 8/21/96), 682 So.2d 249, writ denied 96-3063 (La.3/7/97), 689 So.2d 1372). This Plaintiffs failed to do.

| ¡/Plaintiffs allege various acts of negligence on the part of St. Patrick Hospital with respect to the post-operative care received by Ms. Brooks. However, Plaintiffs failed to present expert testimony to establish the standard of care and that there was a breach thereof by St. Patrick Hospital. Plaintiffs argue that they are prevented from meeting the third prong of their burden of proof (that there was a causal connection between the breach and the resulting injury) by St. Patrick Hospital’s actions in not performing an autopsy. Plaintiffs attempt to have us consider the third prong before they have met the first two. Plaintiffs would have us impose a duty on St. Patrick Hospital relative to the performance of an autopsy. Plaintiffs argue that Medicare regulations state that the medical staff of a hospital should make an “attempt” to secure autopsies in cases of “unusual deaths and of medical-legal and educational interest.” 42 C.F.R. § 482.22. They further assert that Medicare pays for autopsies “indirectly.” The crux of Plaintiffs’ argument is that the denial of their request for an autopsy deprives them of an opportunity to show that St. Patrick Hospital’s conduct contributed to Ms. Brooks’ death such that they have lost the chance to prove their claim.

While we are sympathetic to Plaintiffs’ plight, they simply have not met their burden of proof. They have provided no expert testimony relative to the standard of care and have presented no compelling authority for us to impose the duty they now seek. To the contrary, La.R.S. 33:1563 places the duty to perform autopsies squarely on the coroner alone. In this case, the coroner was present shortly after Ms. Brooks’ death and made the determination, as he is required by statute to do, that no autopsy was necessary. We also note that the allegation that St. Patrick Hospital denied | f;Plaintiffs’ request for an autopsy was not presented to the medical review panel. While Plaintiffs have not termed it as such and have not made such an allegation in their petition, this is essentially a spoliation of evidence claim which Plaintiffs have not properly presented and are unable to assert as a bar to Defendant’s properly supported motion for summary judgment.

DECREE

For all of the foregoing reasons, we decline to impose a duty to perform an autopsy on the hospital in this case. We agree with the trial court that there are no genuine issues of material fact in this case and affirm the summary judgment granted in favor of St. Patrick Hospital. All costs of this appeal are assessed to Plaintiffs-Appellants, Kenyetta M. Brooks and Derrick D. Brooks.

AFFIRMED.

      . La.R.S. 33:1563(B)(1) provides that the coroner has discretion in performing or causing autopsies to be performed except in cases where there is a reasonable probability that the violation of a criminal statute has contributed to the death. In those cases, autopsies are mandatory.

      . We also note that the court in Richardson v. Advanced Cardiovascular Systems, Inc., 865 F.Supp. 1210 (E.D.La.1994) found that allegations that the defendant hospital intentionally conspired with the surgeon to cover up any negligence and intentionally interfered with the performance of an autopsy contracted for by Plaintiffs were “fair grist” for a medical review panel and dismissed the claims as premature pending review by a medical review panel.

      ."The theory of 'spoliation of evidence’ refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient.” Desselle v. Jefferson Parish Hosp. Dist. No. 2, 04-455, p. 16 (La.App. 5 Cir. 10/12/04), 887 So.2d 524, 534 (citations omitted).


author: PICKETT, Judge.

text:
    ST. MARY OPERATING COMPANY v. Matthew Joel GUIDRY, et al.
    No. 2006-1495.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Charles R. Sonnier, Abbeville, LA, Counsel for Defendants/Appellants, The Guidry Living Trust of 1996, Mark B. Gui-dry, Phyllis B. Guidry, Matthew^ Joel Gui-dry.
    Paul G. Moresi III, Abbeville, LA, Counsel for Defendants/Appellees, Thomas Gui-dry, Edith Gaspard Guidry.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

hThe defendants, Matthew, Phyllis, and Mark Guidry, appeal a judgment of the trial court finding that an act of co-mingling executed by the defendants and the remaining Guidry heirs and recorded at entry number 9704329 in the Conveyance Records of Vermilion Parish created a mineral servitude subject to a prescriptive period of seven years and not a servitude for a fixed term of seven years. We affirm the judgment of the trial court.

PROCEEDINGS IN THE DISTRICT COURT

The facts in this case and the proceeding in the trial court were explained by the trial court in a document entitled “RULING”:'

This coneursus proceeding was instituted by St. Mary Operating Company seeking instructions relating to distribution of royalties to the Thomas Guidry heirs, all listed defendant’s [sic] in this suit.
Many facts are not in dispute. The parties executed an act of “Co-Mingling and Exchange” recorded April 4, 1997 which contained the following paragraph:
“All of the parties hereto agree that this exchange of minerals, which creates a mineral servitude, will last a period of seven (7) years from the date of recordation of this instrument in the public records of Vermilion Parish, Louisiana”.
At that time, there was no production or mineral operations on the tract in question; however, subsequent operations produced oil and gas from the property prior to April 2004. [The Gui-dry well, located in Section 41, Township 13 south, Range 4 East of Vermilion Parish and bearing Office of Conservation number 24688.]
The question submitted to the Court is whether the mineral servitude ended April 4, 2004 (7 years from recordation of the co-mingling instrument) or has it been extended by the clear provisions of the mineral code [i.e., was the seven year period a fixed term after which the mineral rights would revert to the land owners or was this simply a shortening of the ten year prescriptive period provided for in R.S. 31:27].
12There is little dispute among the parties relating to the reasons for the co-mingling agreement. All acknowledge their belief that their mother wanted the minerals on all properties donated to remain in indivisión.
Mark and Matthew Guidry take the position that the servitude was for a fixed term and not subject to interruption as defined in the mineral code.
They further argue that the language of the instrument is clear and unambiguous and no parole evidence should be admitted to alter the agreement. The Court disagrees. Since there is no indication in the instrument as to whether the laws relating to mineral servitudes were to be avoided, it is both proper, and necessary, to attempt to determine the intent of the parties through parole evidence.
After review of the testimony, I am convinced that at the time the co-mingling instrument was executed no agreement existed on the question presented to the Court. Some parties never read the instrument and had little or no knowledge of mineral law at the time. No party testified that they discussed with other siblings what would happen should production occur within 7 years, but most assumed they would continue to receive a proportionate interest in revenue as long as production continued. Only Matthew and Mark testified they thought their siblings’ mineral rights would revert to them in seven years regardless of events in the interim.
The Court was particularly impressed with the testimony of Edith Gaspard. After notice of the impending termination of her mineral interest, she confronted her brother Mark. She testified Mark was surprised by the position taken by St. Mary Operating (favoring his position) but was not going to object since it was “going his way”. She also testified he acknowledged the family’s original intent to continue to share in this production equally. This testimony was never refuted by Mark when he testified.
As stated earlier, there was no express agreement at the time the instrument was executed relating to the interruption issue. I do not believe it was even considered. At the same time, I find there was no intent on the part of the parties to alter the law relating to mineral servitudes, except to shorten the period to coincide with what they believed was their mother’s wishes at the time she donated the properties to her children. The only logical position is that unless the parties intend the contrary, the law applies.
Having so found, the Court is of the opinion that unless there is an agreement to the contrary, the laws specifically relating to minerals | Rmust apply and the servitude created in the co-mingling instrument continues to exist as a result of the interruption.
Finally it should be noted that Mark contacted an Attorney and had the instrument drafted. One could apply the general law that any ambiguity is to be construed against his interest. However, a better approach is to hold that in interpreting mineral contracts, the special laws applicable to minerals should be enforced absent a clear intent to avoid them.

LAW AND DISCUSSION

Louisiana Revised Statutes, Title 31, contains the state’s Mineral Code. The section of the Mineral Code at issue in this suit is R.S. 31:74, which states: “Parties may either fix the term of a mineral servitude or shorten the applicable period of prescription of nonuse or both. If a period of prescription greater than ten years is stipulated, the period is reduced to ten years.” In McDermott, Inc. v. M-Electric & Construction Co., 496 So.2d 1105 (La.App. 4th Cir.1986) our colleagues of the fourth circuit reminded us of the following:

The Louisiana Supreme Court has recognized the right of parties to agree to a shorter prescriptive period than that provided by statute provided certain conditions are met. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961). In Leiter Minerals, supra at 853, the Louisiana Supreme Court set forth the requirements:
Parties to a contract are free to stipulate as they please so long as their stipulations are not contrary to good morals or public policy or do not violate some law. La.Civ.Code Arts. 1764, 1895, 1901; American Cotton Co-op. Ass’n v. New Orleans & Vicksburg Packet Co., 180 La. 836, 157 So. 733 (1935); Mente & Co. v. Roane Sugars, Inc., 199 La. 686, 6 So.2d 731 (1942); Givens v. Washington Nat. Ins. Co., La.App.1936, 170 So. 810; Morris Buick Co. v. Ray, La.App. 1949, 43 So.2d 83. It has also been recognized in this state, and by the courts of other states and the Supreme Court of the United States, that those entering into a contract may stipulate a different period of prescription or limitation from that provided by a state statute, and that the limitation or prescriptive period as thus stipulated, if reasonable, will be binding upon the parties. Blanks v. Hibernia Ins. Co., 36 La.Ann. 599 (1884); Ray v. Liberty |4Industrial Life Ins. Co., La.App.1938, 180 So. 855; see Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687 (1947) (in the absence of a controlling statute to the contrary); Hoagland v. Railway Express Agency, Fla., 75 So.2d 822 (Fla.1954). See also Wood, Limitation of Actions, v. I, p. 145, sec. 42 (4th ed.1916).

Id. at 1111-12.

The courts of our state are guided in their interpretation of R.S. 31:74 by the Official Comments to that article. The Comments state in part as follows (emphasis ours):

[T]he supreme court has indicated in Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845 (1961) that parties may fix a period of prescription by contract which is different from and less than that which would normally be imposed by law if they had been silent. ...
The limitation that parties cannot contract for a prescriptive period greater than ten years is firmly established in the jurisprudence. E.g., Hodges v. Norton, supra, 200 La. 614, 8 So.2d 618 (1942); Bodcaw Lumber Co. of La. v. Magnolia Petroleum Co., 167 La. 847, 120 So. 389 (1929); LeBleu v. LeBleu, 206 So.2d 551 (La.App. 3d Cir.1968(1967)); Ober v. McGinty, 66 So.2d 385 (La.App. 2d Cir.1953); but see Chicago Mill & Lumber Co. v. Ayer Timber Co., 131 So.2d 635 (La.App. 2d Cir.1961). The question of when a contract contrary to this rule has been executed is not solved by Article 74. In this regard, see the discussion of LeBleu v. LeBleu, supra, and the discussion of other problems concerning the date of creation of mineral servitudes following Article 28.
Consideration was given to the matter of establishing rules of construction to aid the courts in determining whether parties intend to fix the duration of a mineral servitude or to subject it to a prescriptive period other than that which would be imposed if the parties were silent. However, it was determined merely to state some guidelines for construction in this comment. In the event of silence as to the term of a mineral servitude, the right created is permanent or perpetual, but it is subject to loss by accrual of the prescription of nonuse. Parties to an agreement which does not specify a fixed term or a prescriptive period other than the legal one are, of course, free to limit the duration of the rights created or to alter the prescriptive period by subsequent agreement, subject to the same limitations applicable to the original instrument.
It is established by Hodges v. Norton, supra, and Bodcaw Lumber Co. of La. v. Magnolia Petroleum Co., supra, that if a term greater than 1 sten years is specified, this fixes the duration of the interest created. It is, however, still subject to the prescription of nonuse and will expire prior to the running of the specified term if not used within the legal prescriptive period.
It is more difficult to construe instruments specifying a period less than ten years. Unless the creation of a mineral servitude is a part of a security transaction, it is rare that a party will, in the ordinary situation, contract for the creation in his favor of an interest with a fixed term less than ten years. Thus, it is suggested that in the absence of some expression to the contrary in the instrument in question, the specification of a period less than ten years for a mineral servitude should be construed as an agreement on a prescriptive period less than ten years, and the interest should be considered subject to the rules of use and thus renewable by exercise of the rights granted or reserved. Parties are, of course, free to specify that the stated number of years is the term of the interest and not a prescriptive period.

Appellants argue that the trial court erred in taking testimony as to the intent of the parties in drafting and executing the co-mingling agreement. In Bown v. Austral Oil Company, Inc., 322 So.2d 866 (La.App. 3rd Cir.1975), writ denied, 326 So.2d 370 (La.1976) we stated:

The intention of the parties is of paramount importance and must be determined in accordance with the plain, ordinary and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety.
LSA-C.C. Article 1945 provides that agreements have the effect of law between the parties, who alone can abrogate or modify them, and that the courts are bound to give effect to all contracts according to the true intent of the parties when the language is clear and leads to no absurd consequences.
It is not within the province of the court to alter or make new contracts for the parties, its duty being confined to the interpretation of the agreements between the parties, and in the absence of any ground for denying enforcement, to render them effective. Texas Co. v. State Mineral Board, 216 La. 742, 44 So.2d 841 (1949).

Id. at 870.

Further, in Claitor v. Delahoussaye, 02-1632 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, writ denied, 03-1820 (La.10/17/03), 855 So.2d 764, our colleagues of the first circuit explained as follows:

The general rules of contract interpretation found in articles 2045-2057 of the Louisiana Civil Code establish that when the words of a written agreement are clear and explicit and lead to no absurd result, no further interpretation as to the common intent of the parties can be made. See Martin Exploration Company v. Amoco Production Company, 93-0349, p. 5 (La.App. 1 Cir. 5/20/94), 637 So.2d 1202, 1205, unit denied, 94-2003 (La.11/4/94), 644 So.2d 1048. Furthermore, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. Id. When contract terms are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to the provisions in a contract, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. In such cases, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact to be inferred from all of the surrounding circumstances. Id.
A determination of the existence or absence of an ambiguity in a contract entails a question of law. An appellate review that is not founded upon any factual findings made at the trial court level but, rather, is based upon an independent review and analysis of the contract within the four corners of the document, is not subject to the manifest error rule of law. Hawco Mfg. Co., Inc. v. Superior Chain, Inc., 98-1037, pp. 4-5 (La.App. 1 Cir. 9/24/99), 754 So.2d 1062, 1066. In such cases, appellate review is simply whether the trial court was legally correct. Martin Exploration Company, 637 So.2d at 1206.
To determine the meaning of words used in a contract, a court should give them their generally prevailing meaning. LSA-C.C. art.2047. If a word is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. art.2048. A provision susceptible of different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. LSA-C.C. art.2049. Furthermore, each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art.2050. Doubtful provisions must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-C.C. art.2053.

\r,Id. at478.

The co-mingling agreement did not specify if the seven year period prescribed in the document was an agreement on the prescriptive period or on the term of the mineral servitude itself. Thus, we find it was not an error for the trial court to look beyond the four corners of the document in order to ascertain the intent of the parties.

Considering the wording of the document, the testimony of the parties and the Official Comments to La.R.S. 31:74, we find no error in the ruling of the trial court.

Accordingly, for the reasons stated, we affirm the judgment of the trial court. All costs of this appeal are assessed against the appellants.

AFFIRMED.


author: JAMES F. McKAY, III, Judge.

text:
    Louis STEMLEY v. Warden Henry GOINES, O.P.P., Lawrence Bourgeois, New Orleans West District, Louisiana Board of Parole—Fred Clark.
    No. 2006-CA-1556.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2007.
    Rehearing Denied May 2, 2007.
    Louis Stemley, Kinder, LA, In Proper Person, PlaintiffrAppellant.
    Charles C. Foti, Jr., Attorney General State of Louisiana, Jennifer M. Medley, Assistant Attorney General State of Louisiana, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS Jr., Judge ROLAND L. BELSOME).
   JAMES F. McKAY, III, Judge.

hThe plaintiff, Louis Stemley (“Stem-ley”), an inmate at Allen Correctional Center in Kinder, Louisiana, appeals the judgment of the trial court dismissing his action with prejudice for lack of subject matter jurisdiction. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On August 19, 2002, Stemley filed a Petition for Judicial Review in the Civil District Court for the Parish of Orleans alleging that his parole was revoked in error and that there was an error in the computation of his “good time” credits. On October 14, 2002, Stemley amended his petition alleging damages due to his wrongful incarceration and/or false imprisonment stemming from the error in calculation of “good time.”

In response, the defendants filed an exception of improper venue citing La. R.S. 15:571.15, which provides:

Venue in any action in which an individual committed to the Department of Public Safety and Corrections contests the computation of his sentence or sentences, discharge, good time dates, or any action concerning parole shall be in the parish of East Baton Rouge. Venue in a suit contesting the actions of the Board of Parole shall be controlled by this Part and R.S. 15:574.2 and 574.11 and not by the Code of Criminal Procedure, Title XXXI-A, Post Conviction Relief, |j>pr Title IX, Habeas Corpus, regardless of the captioned pleadings stating the contrary. (Footnotes omitted).

The matter came for hearing on May 26, 2006. On June 28, 2006, the trial court rendered a judgment dismissing Stemley’s action with prejudice, based on the finding that the Civil District Court lacked subject matter jurisdiction. The trial court determined that pursuant to La. R.S. 15:571.15, the 19th Judicial District Court has jurisdiction over questions concerning the computation of discharge times for prisoners. Stemley’s timely appeal followed.

DISCUSSION

On appeal, Stemley argues that the trial court erred in dismissing his case for lack of subject matter jurisdiction. Stemley submits that because he amended his petition for review to included a petition for damages, the matter became a delictual action, which falls within the mandatory venue provision of La. R.S. 15:1184(F). The statute states:

The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper.

To support his argument that the trial court was wrong in finding that the 19th Judicial District Court was the proper venue, Stemley submits that his petition for review and demand for damages for wrongful incarceration was originally filed in the 19th Judicial District Court, but was dismissed on an exception of improper venue. A copy of the Commissioner’s Screening Report, dated January 25, 2005, is attached to Stemley’s Motion for Appeal. The Commissioner’s finding holds:

The petitioner, an inmate in the custody of the Department of Public Safety and Corrections, filed the instant suit in which he raises complaints concerning the computation of his good time credits. As relief, the petitioner requests an award of monetary damages. Without | ^addressing the merits of the petitioner’s allegations, this Commissioner notes that the instant suit is a delictual action rather than a request for judicial review. The exclusive venue for a suit that asserts a claim based upon delictual actions for injury or for damages is the parish where the prisoner was assigned at the time his cause of action arose. La. R.S. 15:1184(F).

On April 14, 2005, the 19th Judicial District Court adopted the Commissioner’s recommendation and rendered a judgment dismissing Stemley’s action, without prejudice, for being filed in a parish of improper venue. Stemley appealed the decision to the First Circuit Court of Appeal. In an unpublished opinion, the First Circuit affirmed the decision of the Commissioner. Stemley v. Department of Public Safety and Corrections, 2005-1484 (La.App. 1 Cir. 6/21/06, 933 So.2d 257), unpub.

Clearly, this case presents a jurisdictional conflict. Pursuant to La. R.S. 15:571.15, venue for actions contesting the computation of sentences, discharge, good time dates, or any action concerning parole is mandatory in the parish of East Baton Rouge. On the other hand, under La. R.S. 15:1184(F), the exclusive venue for an inmate’s delictual action shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose.

The conflict that arises when an inmate combines a petition for review with a claim for damages was recently recognized and discussed in Sias v. Rogers, 2006-0853 (La.App. 1 Cir. 2/9/07), 2007 WL 438782, rendered subsequent to the First Circuit’s ruling in Stemley’s case. Sias, while incarcerated at C. Phelps Correctional Center in Clinton, Louisiana, was found guilty of violating a disciplinary rule, for which he was subjected to a loss of “good time.” He initially filed a request for judicial review in the 19th Judicial District Court, seeking restoration of the “good time.” In addition, Sias also brought a claim for 14damages resulting from his alleged wrongful conviction on a rules violation. The 19th Judicial District Court Commissioner recommended that Sias’s request for monetary damages be stricken from the pleadings, in order to allow the matter to proceed as a request for judicial review of Sias’s disciplinary board appeal. The Commissioner’s Screening Report noted:

While a request for judicial review is heard on the appellate jurisdiction of this Court, a claim for damages must be heard on the original jurisdiction of a district court. Pursuant to R.S. 15:1177(0, damage claims cannot be raised in a request for judicial review and must be filed separately as original civil actions. Furthermore, the legislature has provided that venue for a claim asserting damages must be raised in the parish where the petitioner was housed when the cause of action arose. R.S. 15:1184(F). Thus, if this matter were to proceed for judicial review, the damage claim would first need to be dismissed.

The District Court accepted the Commissioner’s recommendation and rendered a judgment striking the damage claim from Sias’s request for judicial review. The First Circuit Court of Appeal affirmed. Id.

Although Sias is not persuasive authority in the present case, it provides a well-reasoned approach to resolving the venue issue. The recommendation made by the Commissioner, and affirmed by the First Circuit Court of Appeal, allows for a decision to be made on the merits of the inmate’s petition for review prior to determining damages. In Sias’s case, the dismissal of the petition for review on the merits negated his claim for damages.

In the present case, the trial court did not err in finding that the Civil District Court lacked subject matter jurisdiction over Stemley’s action. La. R.S. 15:571.15 mandates that venue for actions contesting computation of sentence, discharge, parole, and good time dates shall be brought in the parish of East Baton Rouge. See State v. Robinson, 2001-1458, p. 6 (La.App. 4 Cir. 4/24/02), 818 So.2d 246, 250. Moreover, it is clear that an assessment of damages cannot be made unless and until the 19th Judicial District Court rules in Stemley’s favor on the petition for review.

CONCLUSION

For the foregoing reasons, the trial court’s judgment dismissing Stemley’s action is affirmed.

AFFIRMED.


author: EASLEY, Justice, for the Court.

text:
    MISSISSIPPI INSURANCE GUARANTY ASSOCIATION v. Kyndall COLE, a Minor, By and Through Wendy DILLON as Next Friend and Natural Mother. Southwest Mississippi Regional Medical Center v. Kyndall Cole, a Minor By and Through Wendy Dillon as Next Friend and Natural Mother.
    Nos. 2005-IA-02238-SCT, 2005-IA-02246-SCT.
    Supreme Court of Mississippi.
    March 1, 2007.
    Rehearing Denied May 3, 2007.

      Clifford C. Whitney, III, Vicksburg, attorney for appellant in No. 2005-IA-02238-SCT.
    T. Mack Brabham, McComb, attorney for appellee.
    R. Mark Hodges, Gretchen W. Kimble, Jackson, attorneys for appellant in No. 2005-IA-02246-SCT.
    Before SMITH, C.J., DIAZ and EASLEY, JJ.
   EASLEY, Justice, for the Court.

¶ 1. These two consolidated interlocutory appeals were filed by the Mississippi Insurance Guaranty Association (MIGA) and Southwest Mississippi Regional Medical Center (SMRMC). Finding no error, this Court affirms the trial court’s denial of MIGA’s and SMRMC’s motion for summary judgment.

PROCEDURAL HISTORY

¶ 2. On December 31, 2002, Wendy Dillon (Dillon) filed suit in the Circuit Court of Pike County, Mississippi, individually and on behalf of her minor child Kyndall Cole, for negligent care and treatment given to Dillon in the course of her pregnancy, which she alleged resulted in injuries to Cole. Dillon filed suit against Dr. Dawn Sumrall (Sumrall), McComb OB-GYN Associates (McComb OB-GYN), and SMRMC.

¶ 3. At. the time Dillon filed suit, all three defendants had solvent insurance companies. Thereafter, SMRMC’s insurer, Reciprocal of America (ROA), became insolvent. MIGA assumed the defense of SMRMC pursuant to Miss.Code Ann. § 83-23-115 (Rev.1999), the Mississippi Insurance Guaranty Act Association Law (the Guaranty Act). The Legislature enacted the Guaranty Act to provide payment of covered claims and avoid financial losses to claimants and insurance policyholders in the event an insurer becomes insolvent. Miss.Code Ann. § 83-23-103(Rev.l999).

¶4. Dillon settled her claim against Sumrall and McComb OB-GYN for an amount in excess of $300,000, but less than the maximum insurance policy limits. As part of the settlement terms, Sumrall and McComb admitted no liability. Sumrall and McComb OB-GYN were dismissed from the lawsuit.

¶ 5. Dillon filed a second amended complaint, which added MIGA as a defendant, and sought declaratory judgment against MIGA regarding coverage. MIGA and SMRMC filed separate motions for summary judgment. MIGA’s summary judgment motion sought relief from any obligation to pay Dillon. MIGA’s interpretation of the Guaranty Act was that a joint tortfeasor’s solvent insurance coverage had to be exhausted before MIGA had any responsibility to pay. MIGA also had a $300,000 statutory maximum obligation per claim. Sumrall and McComb OB-GYN had already settled with Dillon for an amount in excess of $300,000. Under MIGA’s interpretation of the Guaranty Act, the plain language of its exhaustion provision (Miss. Code Ann. § 88-23-123 (Rev.1999)) required that Dillon’s recovery of more than $300,000 from a solvent insurance policy be credited against any MIGA obligation. Because Dillon had received more than MIGA’s $300,000 statutory maximum payment, MIGA argued it could credit that payment against its obligation.

¶ 6. SMRMC’s summary judgment motion sought dismissal of the action based on immunity. SMRMC asserted immunity for any recovery by Dillon in excess of $250,000 pursuant to the Mississippi Torts Claim Act (the MTCA). Miss.Code Ann. § 11^6-15 (Rev.2002). Since SMRMC’s insurer, ROA, had become insolvent, SMRMC also asserted that it was protected by the Guaranty Act. SMRMC maintained that it was not liable to Dillon for the same reason that MIGA claimed it was not liable to Dillon.

¶ 7. The trial court denied MIGA’s and SMRMC’s motions for summary judgment. Thereafter, MIGA and SMRMC separately petitioned this Court for interlocutory appeal. See M.R.A.P. 5. This Court granted both interlocutory appeals and stayed the trial court proceedings on January 12, 2006. This Court then consolidated the two interlocutory appeals. MIGA and SMRMC raise the following issues on appeal:

I. Whether the exhaustion provision of Miss.Code Ann. § 83-23-123 of the Mississippi Insurance Guaranty Association Law requires a claimant to exhaust a solvent insurance policy covering joint tortfeasors, and whether MIGA is entitled to a credit against its statutory obligation in the amount of the solvent insurance.
II. Whether SMRMC, a community hospital, is entitled to immunity under the Mississippi Tort Claims Act.
DISCUSSION

¶ 8. In Gorman-Rupp Co. v. Hall, 908 So.2d 749, 753-54 (Miss.2005), this Court set forth the standard of review in summary judgment issues as follows:

This Court applies a de novo standard of review on appeal from a denial of summary judgment by the trial court. Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

Gorman-Rupp, 908 So.2d at 753-54.

I. Miss.Code § 83-23-123

A. The trial court order denying summary judgment

¶ 9. The trial court denied the separate summary judgment motions of MIGA and SMRMC. The trial court considered whether Dillon’s claim against Sumrall was a “covered claim” and whether the exhaustion provision of Miss.Code Ann. § 83-23-123 was applicable. The trial court order stated, in part:

The court finds that the claim settled with Sumrall and McComb/OB-Gyn is not a “covered claim[”] within the meaning of the Guaranty Act as it was written. The Act does not eliminate the Plaintiffs claim against SMRMC because a joint tortfeasor settled. Instead[,] it caps the potential recovery from MIGA if any on the claim against SMRMC.
The court finds that MIGA and SMRMC are not entitled to offset amounts paid by or for the co-defendants in this case. Indeed[,] a holding to the contrary would shift all of the “loss” to the settling co-defendant and plaintiff. Logic and simple economics dictate that the “loss” caused by insolvency cannot be eliminated, only redistributed. It appears that the purpose of the Guaranty Act is to cap the liability of the fund and distribute liabilities incurred among the contributing members. The act does not exist to shift the burden entirely to the solvent insurers of co-defendants. The Motions for Summary Judgments (granting the offset) are denied.

(Emphasis added).

B. The Guaranty Act

¶ 10. To determine if the exhaustion provision of the Guaranty Act is applicable, this Court must review the purpose and definition sections of the Guaranty Act in conjunction with the exhaustion provision. Miss.Code Ann. § 83-23-103 provides:

The purpose of this article is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.

¶ 11. Therefore, the Guaranty Act is, in part, a mechanism to provide payment of “covered claims” and to avoid delays in payments and financial loss to a claimant or policyholder in the event an insurer becomes insolvent. This Court has held that the Guaranty Act statutes are to be construed liberally. Miss. Ins. Guar. Ass’n v. Byars, 614 So.2d 959, 963 (Miss.1993). “[The] guidelines for the proper construction of this law can be found in Miss.Code Ann. § 83-23-107 (1972). ‘This article shall be liberally construed to effect the purpose under section 83-23-103, which shall constitute an aid and guide to interpretation.’ ” Miss. Ins. Guar. Ass’n v. Harkins & Co., 652 So.2d 732, 735 (Miss.1995). In Byars, 614 So.2d at 963, this Court further held:

The Mississippi Insurance Guaranty Association Law was enacted to protect policy holders of certain kinds of insurance in the event of their insurer’s insolvency. MIGA is a statutorily-created unincorporated association consisting of insurance companies doing business in Mississippi. Each solvent insurer doing business in this state is assessed a pro rata share of amounts paid on behalf of insolvent insurers. Bobby Kitchens v. Mississippi Insurance Guaranty Association, 560 So.2d 129, 131 (Miss.1989); Mississippi Insurance Guaranty Association v. Gandy, 289 So.2d 677, 681 (Miss.1973). MIGA is prohibited by statute from paying anything other than a covered claim, and the statute further requires that all other sources of insurance must be exhausted before looking to MIGA for any coverage. Id. at 131.

1112. While Byars cites to Kitchens, 560 So.2d at 131, for the proposition that “MIGA is prohibited by statute from paying anything other than a covered claim, and the statute further requires that all other sources of insurance must be exhausted before looking to MIGA for any coverage[,]” this Court never reached the issue of the exhaustion provision. See also Miss.Code Ann. § 83-23-123.

■ ¶ 13. This Court must examine what constitutes a “covered claim” as defined by the Guaranty Act. Miss.Code Ann. § 83-23 — 109(f) defines a “covered claim” as follows:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. “Covered claim” shall not include any amount awarded as punitive or exemplary damages; or sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise and shall preclude recovery thereof from the insured of any insolvent carrier to the extent of the policy limits.

(Emphasis added).

¶ 14. Miss.Code Ann. § 83-23-123(1) concerns the provision of the Guaranty Act that has been described as either the “non-duplicative” or “exhaustion provision.” Miss.Code Ann. § 83-23-123(1) provides:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.

(Emphasis added).

C. The exhaustion provision of Miss.Code Ann. § 83-23-123

¶ 15. MIGA asserts that the trial court erred by denying its motion for summary judgement. Pursuant to the exhaustion provision of Miss.Code Ann. § 83-23-123, MIGA argues that any solvent insurance policy covering a claimed injury must be exhausted prior to seeking payment by MIGA. In addition, MIGA insists that any insurance proceeds provided to a claimant from a solvent insurance company should be credited against MIGA’s $800,000 statutory limit of liability on any claim. Therefore, on appeal, MIGA asserts that the trial court erred by denying its motion for summary judgment because Sumrall settled and paid Dillon in excess of $300,000.

¶ 16. Dillon argues that her claim against Sumrall is not a “covered claim” as defined by the Guaranty Act because Sum-rail’s insurer was solvent. See Miss.Code Ann. § 83 — 23—109(f). According to Dillon, the plain meaning of the statute is that an offset to a recovery is permitted only on a “covered claim.” Therefore, Dillon maintains that this Court need not reach the issue of the exhaustion provision of Miss. Code Ann. § 83-23-123, because Sumrall’s claim was not a “covered claim” and, consequently, the exhaustion provision is inapplicable.

¶ 17. The Mississippi State Medical Association (MSMA) filed an amicus brief with this Court in this case. MSMA’s brief expresses its concern about the implications of a ruling that would support MIGA’s position that the exhaustion provision requires a claimant first to exhaust the insurance proceeds from a solvent insurer prior to seeking any relief from MIGA.

¶ 18. MSMA argues that applying MIGA’s interpretation of the exhaustion provision of Miss.Code Ann. § 83-23-123 would result in a loss to both Dillon and Sumrall. MSMA contends that the result of applying MIGA’s interpretation would be that many physicians would be forced to pay more than their share despite the fault attributable to MIGA defendants. MSMA submits that many physicians have been and will be placed in the same situation as Sumrall on these issues. If this Court rules in MIGA’s favor, MSMA maintains that physicians will be placed in an untenable situation because the plaintiffs will have to exhaust the full coverage limits of physicians’ solvent insurers prior to seeking any recovery from MIGA, regardless of the level of fault of the insolvent insurer.

¶ 19. Under MIGA’s theory, it would be allowed a dollar-for-dollar credit for any recovery amount paid by the solvent insurer. Thus, a physician would be forced to: (1) continue the lawsuit rather than settle; (2) incur ligation costs; (3) risk a trial and jury verdict; (4) pay the cost associated with insolvent insurers twice as an assessment by MIGA of a percentage of written policies and under the exhaustion theory; and (5) risk reporting to the National Physicians Database for a potential amount greater than the amount for which the physician and his or her solvent insurance company could have settled the case. Finally, MSMA asserts that the Legislature’s efforts for tort reform will be subverted if this Court accepts MIGA’s argument.

¶ 20. “It is our duty to interpret the statutes enacted by the Legislature, and to neither broaden nor restrict the legislative act.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 156 (Miss.2006). In Green v. Cleary Water, Sewer & Fire Dist., 910 So.2d 1022, 1027 (Miss.2005), this Court held that “courts cannot restrict or enlarge the meaning of an unambiguous statute.” Green, 910 So.2d at 1027 (quoting Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994)). In Allred, 928 So.2d at 154, this Court held:

In considering a statute passed by the Legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. [Citations omitted]. Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent.

Allred, 928 So.2d at 154 (quoting City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). Therefore, when a statute is not ambiguous, this Court applies the statute according to its plain meaning and need not apply principles of statutory construction. Id.

¶ 21. Miss.Code Ann. § 83-23-109(f) is not ambiguous. In its unambiguous and simplest terms, a “covered claim” is an unpaid claim, with a few restrictions, that is “issued by an insurer, if such insurer becomes an insolvent insurer and” meets condition (1) or (2) of the definition. The clear and unambiguous key to the definition is that a “covered claim,” under the Guaranty Act, relates to circumstances involving a once-solvent insurer that becomes insolvent.

¶ 22. In addition, we find that Miss.Code Ann. § 83-23-123(1) is not ambiguous. This Court applies “the statute according to its plain meaning and should not use principles of statutory construction.” Allred, 928 So.2d at 154. The clear and unambiguous reading of the exhaustion provision states that a person who has a covered claim against an insurer under any insurance policy provision must exhaust his other rights under the policy. In addition, any amount paid by MIGA on that covered claim has to be reduced by the amount of recovery from the insurance policy. MIGA and Dillon both cite to interpretations of this statute or similarly worded statutes from other jurisdictions, however, Miss.Code Ann. § 83-23-123 is clear and unambiguous on its face and requires no other interpretations.

¶ 23. In 2005, there was a proposed a legislative amendment to Miss.Code Ann. § 83-23-123(1). Dillon contends that this language now undermines MIGA’s position on appeal. Contrary to MIGA’s argument on appeal, the Legislature specifically rejected this interpretation of the statutory language of Miss.Code Ann. § 83-23-123(1). The proposed language to the 2005 Legislature for Miss.Code Ann. 83-23-123(1) provided:

Any person having a claim against an insurer under any provision in an insurance policy other than the policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under such policy regardless of the nature of the insurance coverage and regardless of whether the coverage is written as first party or third party coverage, including, but not limited to, coverages available to co-defendants or joint tortfeasors in any claim or action

S.B. 2353, 2005 Leg., 120th Sess. (Miss.2005). The Legislature did not adopt this proposed amendment language. Dillon asserts that the language of the statute in its present form, as opposed to the proposed amendment language above, demonstrates that a plain reading of the current language of the statute does not require exhaustion of the insurance coverage by co-defendants or joint tortfeasors.

¶ 24. Applying the statutes to the facts, Dillon’s claim against Sumrall and McComb OB-GYN clearly is not a covered claim as defined by Miss.Code Ann § 83-23-109(f). The statute states that a “covered claim” arises from an insurance policy issued from a later insolvent insurance carrier. Sumrall and McComb OB-GYN’s insurance carrier remained solvent at all times, therefore, these defendants never had an insolvent insurer and thus failed to satisfy meet the definition of “covered claim.”

¶ 25. In contrast, Dillon’s claim against SMRMC is a “covered claim.” Dillon sued SMRMC for actions of its employees. SMRMC’s insurance carrier, ROA, became insolvent. Therefore, Dillon had an unpaid claim, “which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and,” thus meeting condition (1) of the statute.

¶ 26. Logically, Sumrall and McComb OB-GYN’s failure to satisfy the definition of “covered claim” ensures their failure to meet the unambiguous terms of the non-duplicative or exhaustion provision of Miss. Code Ann. § 83-23-123 as well. Dillon’s claim against Sumrall and McComb OB-GYN is not a “covered claim,” therefore, she is not required to first exhaust her rights under such policy. Further, any recovery under such insurance policy is not reduced since the claim is not a “covered claim.” Therefore, MIGA cannot offset any of Dillon’s recovery from Sumrall and McComb OB-GYN’s insurance payments, since these recovery amounts are not part of a “covered claim” pursuant to the Guaranty Act. Accordingly, we find that the trial court did not err by denying MIGA’s and SMRMC’s motions for summary judgment.

II. Whether SMRMC, a community hospital, is entitled to immunity

¶ 27. SMRMC also petitioned this Court for interlocutory appeal to determine whether it was entitled to immunity. In its brief, SMRMC claimed that it purchased insurance up to the amount of the Mississippi Tort Claim Act statutory waiver. This cause of action arose in 2000. At the time, the MTCA imposed a maximum recovery amount of $250,000. The trial court acknowledged in the “FACTS” section of its order that “SMRMC enjoys limited immunity under the Mississippi Torts Claims Act. Accordingly the liability, if any, of SMRMC for the negligence complained of is capped at $250,000.”

¶ 28. In Issue I, this Court affirmed the trial court ruling which denied MIGA’s and SMRMC’s motions for summary judgment. The trial court found that Dillon’s claim against Sumrall and McComb OB-GYN was not a “covered claim” and there was no entitlement to offset amounts paid by or for the co-defendants in this case. Therefore, any liability award against MIGA and SMRMC has yet to be determined in the trial court.

CONCLUSION

¶ 29. For the above reasons, this Court affirms the Circuit Court of Pike County’s denial of summary judgment to MIGA and SMRMC and remands this case to the Circuit Court of Pike County, proceedings consistent with this opinion.

¶ 30. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., AND GRAVES, J., NOT PARTICIPATING.

      . The two plaintiffs in this case, Dillon and her child, Kyndall Cole, will be referred to as "Dillon” only, unless the discussion requires specific reference to Kyndall.

      . Defendants Sumrall and McComb OB-GYN will be referred to as “Sumrall.”

      . The trial court acknowledged in the "FACTS” section of its order that SMRMC enjoyed limited immunity pursuant to the MTCA. Therefore, the MTCA capped SMRMC's liability, if any, at $250,000.

      . Miss.Code Ann. § 11 — 46—15(l)(b)(l) (1999) states:
      In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
      (b) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00)