The issue in this medical malpractice action is whether a claimant who has agreed with the defendant doctor to a settlement for the limit of his liability ($100,000) is
Prince A. Williams, on behalf of his minor son Mark L. Williams, instituted this proceeding in the district court against Dr. Jack Kushner and others. He alleged that Dr. Kushner committed acts of medical malpractice in the delivery of his son, causing the permanent and total loss of use of Mark's right arm. Trial by jury was demanded. Prior to trial, Mr. Williams settled with Dr. Kushner for $100,000, his maximum statutory liability, with full reservation of rights to obtain excess damages from the Patient's Compensation Fund. The commissioner of insurance in his capacity as administrator of the Fund moved to strike the demand for a jury trial. Finding that La.R.S. 40:1299.44(C)(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732 prohibit a jury trial against the Fund, the trial judge declared these statutes unconstitutional on equal protection grounds and, accordingly, denied the motion to strike.
PATIENT'S COMPENSATION FUND
The Patient's Compensation Fund is established and regulated by La.R.S. 40:1299.44 as a special fund for the benefit of successful medical malpractice claimants who are entitled to damages in excess of the health care provider's
There are three types of qualified claims against the Fund: (1) a final judgment in excess of one hundred thousand dollars against a health care provider; (2) a court approved settlement in excess of one hundred thousand dollars against a health care provider; or (3) a final award in excess of one hundred thousand dollars in an arbitration proceeding against a health care provider. Upon submission of a certified copy of one of the above to the insurance commissioner, he files a request with the state treasurer who issues a warrant in the amount of the claim.
If the insurer of a health care provider or a self-insured health care provider (hereinafter insurer) agrees to settle its liability and the claimant is demanding an excess amount from the Fund, the claimant files a petition with the court in which the action is pending against the health care provider seeking approval of the settlement and/or demanding payment of damages from the Fund.
STATUTORY RIGHT TO TRIAL BY JURY
La.Code Civ.P. arts. 1731 and 1732 deal with the right to trial by jury in all civil cases and the limitations on that right. In pertinent part, these articles provide:
We have held that, under this statutory scheme, there is a right to trial by jury in all civil cases unless this right has been expressly denied by law. Jones v. City of Kenner, 338 So.2d 606 (La.1976); Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974). Hence, the initial inquiry is whether a law specifically denies a medical malpractice claimant who has settled with the insurer the right to trial by jury on the amount of damages recoverable from the Fund.
There is no such prohibition in the medical malpractice act. The section dealing with settlement mechanics, La.R.S. 40:1299.44(C), does not specify whether a judge or jury shall determine the amount of post-settlement damages. It provides merely that "the court" shall set the amount of damages in excess of the amount already paid by the insurer. Nowhere in the act is there a directive that this reference to "the court" should mean either a judge or jury. It could be that "the court" is synonymous with the trier of fact. Clearly, the ambiguous reference to "the court" in the medical malpractice act is insufficient to deprive a claimant of a jury trial.
As there are no laws that expressly deny a medical malpractice claimant a jury trial on the amount of post-settlement damages recoverable from the Patient's Compensation Fund, the claimant is statutorily entitled to trial by jury. Because of this ruling, we do not reach the constitutionality of La.R.S. 40:1299.44(C)(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732.
For the reasons assigned, the ruling of the trial judge declaring La.R.S. 40:1299.44(C)(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732 unconstitutional is vacated and the judgment denying the motion to strike the demand for a jury trial is affirmed. The case is remanded to the district court for further proceedings in accordance with law.
DIXON, C.J., concurs with reasons.
LEMMON, J., concurs for reasons assigned by DIXON, C.J.
I respectfully concur.
The denial of a request to strike a demand for a trial by jury is an interlocutory judgment. Interlocutory judgments may be appealed only upon a showing of irreparable harm. C.C.P. 2083. Irreparable harm in such cases occurs whenever the error of a ruling by a trial court cannot, as a practical matter, be corrected on an appeal of a final judgment. Herlitz Construction Co. v. Hotel Investors of New Iberia, 396 So.2d 878 n. 1 (La.1981) (per curiam). An appeal of a final judgment cannot cure the defect of forcing a party to conduct his trial before a jury when that party has a right to be free from a jury trial. Conversely, an appellate court cannot cure the error of denying a party his right to a jury, since an appellate court, although it can decide the case, cannot sit as a jury and respond as a jury would. The court of appeal could only order a new trial, which would be a tremendous waste of judicial resources. There is a statutory right to appeal such irreparable errors. C.C.P. 2083.
For these reasons, the appeal of the interlocutory judgment which declared the statutes in question to be unconstitutional and ordered the trial to proceed before a jury is properly before this court.