UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-3601

JOSE L. CASTILLO AND,

MARIA L. CASTILLO,

Plaintiffs-Appellees,

VERSUS

MONTELEPRE, INC., a/k/a

Montelepre Memorial Hospital,

LUIS R. OMS, M.D., ET AL.,

Defendants, 

LOUISIANA PATIENTS'

COMPENSATION FUND,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(August 23, 1993)

Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge: 

In this case we review, principally, the district court's

application of Louisiana's Medical Malpractice Act, La. Rev. Stat.

Ann. § 40:1299.41 - 1299.47 (West 1992) (the "Act" or "statute").
2

I. The Medical Malpractice Act

Louisiana has established a statutory scheme for the

prosecution of medical malpractice claims against qualified health

care providers. Health care providers who choose to comply with

certain of the statute's provisions become qualified under the

statute and subject to its procedures and protection. See Id §

40:1299.42 (A).

The protection afforded qualified providers is a limitation on

liability exposure to no more than $100,000, plus interest, on

malpractice claims. Id. § 40:1299.42 (B)(2). Any amount owing from

a judgement or settlement in excess of the total liability of all

qualified providers on a malpractice claim is to be paid from the

Patient's Compensation Fund (the "Fund"). Id. § 40:1299.42

(B)(3)(a). 

The statute also provides for limitation on the Fund's

exposure. The total amount recoverable from the Fund is limited to

$500,000, plus interest and cost, exclusive of damages for future

medical care and related benefits. Id. § 40:1299.42 (B)(1).

In the event a qualified provider settles for its $100,000

policy limits, its liability becomes "admitted and established" for

the purposes of any subsequent action by the malpractice victim

against the Fund for additional compensation. Id. § 40:1299.44

(C)(5). As a consequence, the statute precludes the Fund from

contesting the settling provider's liability in any such action.

Id.; Koslowski v. Sanchez, 576 So. 2d 470, 471 (La. 1991). The
 

1But See § 40:1299.44 (D)(2)(b)(x) & (xi).

3

only issue the Fund is allowed to litigate under the statute is the

quantum of the victim's damages.1 Koslowski, 576 So. 2d at 471.

In light of the forgoing, we review the facts material to our

decision today. 

II. Facts

Mrs. Castillo and her husband sued three Louisiana health care

providers for malpractice because of injuries she suffered while

receiving treatment for a liver condition. Two of the providers,

Dr. Oms and Montelepre Memorial Hospital, are qualified under the

Medical Malpractice Act. The other provider, Dr. Gordillo, is not.

The Castillos subsequently entered into settlements with all

three providers. In their settlement with Montelepre, Montelepre

agreed to pay its $100,000 statutory limits, and the Castillos

reserved their right to seek excess compensation from the Fund.

Pursuant to the statute, the Castillos requested the district court

to approve their settlement with Montelepre.

Before the court could give its approval, the Fund intervened.

It sought to challenge the settlement and prevent Montelepre from

paying its statutory limits, which would preclude the Fund from

raising the issue of Montelepre's liability in the Castillo's

forthcoming suit for additional compensation. The court denied the

Fund's challenge, concluding that the Fund had no right to

challenge a settlement between a qualified provider and a

malpractice victim. Having denied the Fund's challenge, the court

approved the Castillos/Montelepre settlement.
 

2As we read the these stipulations, the Fund admitted that

the Castillos' general damages were "at least the total sum of

$500,000." It also admitted that the expenses incurred by the

Castillos for past medical expenses were $280,000.

4

From this point forward, the Fund repeatedly and

unsuccessfully implored the district court to allow it to litigate

Montelpre's liability at the upcoming trial of the Castillos'

damages. Anticipating the Fund's trial strategy, the Castillos

filed a motion in limine seeking to exclude any evidence pertaining

to Montelpre's liability. The Fund opposed the motion, contending

that it had the right to prove the proportionate fault of the three

providers and reduce the Castillos' damages by whatever measure the

jury portioned out to Dr. Gordillo. The district court rejected

the Fund's contention and granted the Castillos' motion.

On the eve of trial, the Castillos filed a motion for summary

judgment. Both parties stipulated to facts material to the only

issue to be tried before the jury, the amount of the Castillos'

damages.2 Based on these stipulations, the court entered judgment

awarding the Castillos, inter alia, $500,000 in general damages,

plus interest, subject to a $200,000 credit in favor of the Fund

because of Dr. Oms and Montelepre's settlements, and $280,000 in

past medical expenses.

Shortly thereafter, the Fund filed its notice of appeal. That

same day, the court signed an order, over the Castillos' objection,

exempting the Fund from posting a supersedeas bond during the

pendency of its appeal. The Castillos subsequently filed a cross

appeal challenging the court's stay of execution.
5

Against this factual backdrop, we address the issues raised by

the parties in this case.

III. Discussion

A. The Settlement Challenge

In its second point of error, the Fund argues that the

district court erred by not allowing it to challenge the settlement

between Montelepre and the Castillos and thereby force the

litigation of Montelepre's liability. At the heart of the matter,

the Fund contends, is its right to challenge a settlement between

a malpractice victim and a qualified provider in every instance

where the provider's insurer pays its $100,000 policy limits. It

tries to support this argument on two grounds: the language of

section 40:1299.44 (C)(3) and the duty imposed on the provider's

insurer under section 40:1299.44 (C)(7).

The relevant portion of section 40:1299.44 (C)(3) reads as

follows:

The board and the insurer of the health care provider ...

may agree to a settlement with the claimant from the

patient's compensation fund, or the board and the insurer

of the health care provider ... may file written

objections to the payment of the amount demanded.

Paragraph (C)(3) must be read in the complete context of

section 40:1299.44 (C). This section provides the procedure when

a qualified provider's insurer has agreed to settle its insured's

liability and the victim demands from the Fund, for a complete and

final release, amounts in excess of the settlement. Id. §

40:1299.44 (C). Assuming the settlement was for the provider's

$100,000 policy limits, the liability of the insured has already
6

become "admitted and established." Id. § 40:1299.44 (C)(5). The

only remaining issue, therefore, is whether the Fund will agree to

pay the excess amount the claimant is demanding for his damages.

The Fund has two choices: either agree to the amount demanded

or litigate the sole issue of the claimant's damages. Id. §

40:1299.44 (C)(3) & (5). If it chooses not to pay the demanded

amount, then subparagraph (C)(3) allows the Fund to file written

objections "to the amount demanded" and thereby force the

litigation of the claimant's damages. Stuka v. Fleming, 561 So. 2d

1371, 1373 (La. 1990). In the latter instance, the only issue to

be litigated is the quantum of the claimant's damages. Id. at 1374.

 Importantly, this inquiry has nothing to do with liability; that

issue was conclusively resolved between the provider's insurer and

the claimant when the insurer agreed to settle for its $100,000

policy limits. Id. The written objections, therefore, provide the

vehicle through which the Fund puts into issue, between itself and

the claimant, only the amount of the claimant's damages and not the

provider's liability.

We therefore hold that the district court was correct in

ruling that nothing in the language of section 1299.44 (C)(3)

allowed the Fund to challenge the settlement between Montelepre and

the Castillos.

The Fund next asserts that allowing it to challenge the

underlying settlement between a health care provider and a

malpractice victim affords it the opportunity to determine whether

the health care provider's insurer discharged its duty of good
 

3The Fund's position early in the life of this litigation

was that it was unfair for the Fund to be denied the opportunity

to contest liability simply because Montelepre's "insurer chose

to not defend the claim and run up litigation expenses in light

of the maximum exposure of $100,000." This representation was

consistent with its claim that "the malpractice alleged arises

from a single patient, being treated for a single condition." 

Indeed, the Fund managed to convince the district court that the

case involved only one instance of malpractice and that the

statute limited the Castillos' claim to only one $500,000 pot

rather than the two the Castillos were seeking.

Thereafter, the Fund represented to the court that because

Montelepre's insurer believed "that it was exposed to an amount

well in excess of $100,000," it "rash[ly] ... jumped at the

opportunity to wash its hands of the case and simply tendered

$100,000 without any thought that such an act would lock the Fund

into liability." This representation was in furtherance of the

position it presses before the court today, namely, that

Montelepre's "insurer considered itself to be settling two

separate claims, each of which for $50,000."

In response to this latest version of the facts, the

district court stated, "The settlement of this claim, however,

was consummated after the court's order of approval which

specifically stated that Montelepre's maximum exposure was

$100,000, and that the settlement for this amount locked the Fund

into liability for the excess. Thus, this Court is unclear how

the settlement could have been based on any misapprehension on

the part of Montelepre or its insurer."

Based on a thorough review of the record, we find the Fund's

"mistaken belief" claim to be disingenuous.

7

faith and reasonable care in evaluating and settling the victim's

claim. See Id. § 40:1299.44 (C)(7). It asserts that this

opportunity is particularly acute in this case because Montelepre's

insurer paid the $100,000 under a mistaken belief that it was

settling two $50,000 claims rather than one $100,000.3

The relevant part of paragraph (C)(7) reads as follows:

For the benefit of both the insured and the [Fund], the

insurer of the health care provider shall exercise good

faith and reasonable care both in evaluating the

plaintiff's claim and in considering and acting upon

settlement thereof. . . .
 

4We also agree with the district court's response to this

argument that even though the Fund is the beneficiary of an

insurer's duty of good faith and reasonable care, this does not

mean that the Fund has the right to litigate the discharge of

such duty in an action between a provider and a victim.

 

5After taking its appeal, the Fund filed a motion requesting

that we certify a question to the Louisiana Supreme Court on this

issue. We hereby deny the Fund's motion for certification in

light of conclusions reached in this opinion.

8

Rather than supporting Fund's argument, we believe the

imposition of this duty weighs against it. Why would the

legislature have imposed upon the insurer, for the benefit of the

Fund, a duty of good faith and reasonable care in its decision to

settle a claim if the Fund has the greater right to challenge any

settlement that would lock it into liability? In other words, with

what benefit does this duty provide the Fund that it would not

necessarily enjoy by having the right to challenge any settlement

that would lock it into liability? To read into the statute the

Fund's right to challenge any such settlement would be to render

the duty imposed under paragraph (C)(7) of no practical

significance.4

Consequently we hold that nothing in section 40:1299.44 (C) or

any other part of the statute allows the Fund to challenge a

proposed settlement between a malpractice victim and a health care

provider, and the district court correctly denied the Fund's

attempt to do so. The Fund's second point of error is overruled.

B. The Apportionment Issue5

The district court granted the Castillo's motion in limine

precluding the Fund from offering any evidence concerning the
9

liability or proportionate fault of Montelepre, Dr. Oms and Dr.

Gordillo at the trial of the Castillos' damages. The court

decided, based on Stuka v. Fleming, 561 So. 2d 1371 (La. 1990) and

Muphrey v. Gessner, 581 So. 2d 357 (La. App., 4th Cir., 1991),

cert. denied, 587 So. 2d 694 (La. 1991), that once the Fund's

liability was established by Montelepre's payment of $100,000, the

Fund did not have the right to litigate the liability of any

purported tortfeasor; the only triable issue was the quantum of the

Castillos' damages.

In its first point of error, the Fund contends this was error.

While admitting that the "issue of Montelepre Hospital's liability

is established by the settlement with Montelepre," the Fund

nevertheless contends that it has the right to prove the

proportionate fault of Dr. Gordillo, a non-qualified health care

provider, and to reduce its maximum statutory exposure in

proportion to the percentage of fault attributed to Dr. Gordillo.

In essence, the Fund contends that Montelpre's payment of $100,000

establishes only Montelepre's liability and not that of Dr.

Gordillo.

In support of this contention, the Fund argues that Stuka and

Muphrey are materially distinguishable from the case at bar.

Accordingly, we review the relevant portions of these decisions.

In Stuka, the court was faced with facts materially similar to

ours. A malpractice plaintiff sued four qualified health care

providers, their insurer, and the Fund. Before the case could be

brought to trial, the insurer paid $100,000 to settle the claim
10

against one of the providers and his employer. The plaintiff

agreed to release the insurer and the two defendants while

reserving its right to recover excess compensation from the Fund.

The plaintiff also agreed to dismiss with prejudice its claim

against the remaining two providers. The district court

subsequently entered a judgment approving the settlement.

Thereafter, the Fund filed an answer asserting its right to

litigate the issue of liability based on its contention that the

$100,000 payment did not constitute an admission of liability for

all four defendants. The plaintiff moved to strike the Fund's

opposition to the court's considering the settlement as an

admission of liability.

 The district court rendered a judgement in favor of the

plaintiff, ruling that the settlement constituted an admission of

liability as between the plaintiff and the Fund. The court of

appeal reversed, concluding that because the insurer had not paid

$100,000 on behalf of each of the four providers, the issue of

liability could be litigated by the Fund.

In reversing the court of appeal's decision, the supreme court

framed the issue and its holding as follows:

The issue in this case is whether ... (the Fund) ... may

contest its liability to a medical malpractice victim who

has compromised his claim against one health care

provider for $100,000, while voluntarily dismissing

others, and is seeking recovery against the Fund of

damages in excess of the settlement amount. We conclude

that payment of $100,000 to a medical malpractice victim

by one qualified health care provider (or the provider's

insurer) triggers the admission of the liability

provision of [section 40:1299.44 C(5)], and the only
11

contested issue remaining thereafter between the victim

and the Fund is the amount of the victim's damages in

excess of the amount already paid.

Stuka, 561 So. 2d at 1371.

In reaching this conclusion, the court reasoned as follows:

The statute does not make any express provisions for a

case in which multiple health care providers have been

joined as defendants and only one pays $100,000 in

settlement. We interpret the overall statute as

dispensing with the litigation of liability between the

victim and the Fund after one health care provider has

paid $100,000 in settlement.

A suit under the Medical Malpractice Act is against the

health care provider only and not against the Fund. The

health care provider is the only party defendant

contemplated by the Act. (citation omitted) Indeed, the

statute does not require joining the Fund as a defendant,

but only requires serving the administrator of the Fund

with the petition for approval of the settlement when a

health care provider has agreed to settle its liability

to the malpractice victim.

The status of the Fund, after a settlement between the

malpractice victim and a health care provider for

$100,000, is more in the nature of a statutory intervenor

than a party defendant. . . .

The Medical Malpractice Act therefore contemplates that

the issue of liability is generally to be determined

between the malpractice victim and the health care

provider, either by settlement or by trial, and that the

Fund is primarily concerned with the issue of the amount

of damages. Payment by one health care provider of the

maximum amount of his liability statutorily establishes

that the plaintiff is a victim of that health care

provider's malpractice. Once payment by one health care

provider has triggered the statutory admission of

liability, the Fund cannot contest that admission. The

only issue between the victim and the Fund thereafter is

the amount of damages sustained by the victim as a result

of the admitted malpractice.

We recognize that this literal interpretation of the

statute affords less rights to the Fund when claims

against multiple health care providers are settled than

when such claims are tried. In the case of a trial the

Fund has the opportunity for reduced exposure when more

than one health care provider is determined to be liable.
12

But in the case of a settlement with one [qualified]

health care provider for $100,000 the Fund does not have

this opportunity in the subsequent litigation with the

victim. However, the Legislature chose in cases of

settlement simply to declare the admission of liability

by the $100,000 payment of one health care provider and

did not provide for the Fund's affirmative right to

litigate liability on the part of any other named or

unnamed health care providers. 

We accordingly conclude that, because of the payment of

$100,000 by Dr. Jones' insurer in this case, the only

issue to be litigated between plaintiffs and the Fund is

the quantum of damages.

Stuka, 561 So. 2d at 1373-74 (emphasis added).

In Muphrey v. Gessner, 581 So. 2d 357 (La. App. 4th Cir.

1991), a malpractice plaintiff sued two qualified providers, their

insurer, and two other qualified providers. Before the case was

brought to trial, one of the providers paid its statutory limits of

$100,000 in exchange for a release from the plaintiff. The court

approved the settlement. The plaintiff also dismissed without

prejudice the remaining defendants and sought recovery from the

Fund for excess damages.

The Fund filed a third party action against two of the

dismissed providers, seeking contribution and a credit against the

plaintiff's recovery. The Fund argued that it was entitled to a

credit to the full extent of the statutory limits of liability of

the two providers, due to their alleged negligence.

Thereafter, the plaintiff sought and received a summary

judgement concluding that the $100,000 payment by the one provider

constituted a statutory admission of liability, thereby making the

only issue between the Fund and the plaintiff one of damages. The
13

trial court also severed the plaintiff's claim for damages from the

Fund's contribution and credit action.

Subsequently, the plaintiff and Fund settled the damage claim,

leaving the Fund's action against the other providers as the sole

surviving claim from the original action. Thereafter, one of the

providers moved for summary judgement, asserting that the Fund had

no right to seek contribution. The trial court granted the motion

and dismissed the Fund's action against the provider. The Fund

appealed.

The Fund asserted its right to contribution on two grounds:

(1) as an obligor which has paid a debt owed by the provider, the

Fund is subrogated to the rights of the plaintiff against the

provider under La. Civil Code art. 1829; and (2) public policy

mandates that the Fund have the right to recover $100,000 from both

of the allegedly negligent providers in order to protect the fiscal

integrity of the Fund. The fourth circuit disagreed.

The court concluded that the Louisiana Supreme Court's

decision in Stuka was dispositive. Muphrey, 581 So. 2d at 360. It

paraphrased the holding in Stuka for the proposition that the Fund

cannot litigate the issue of liability in order to receive

contribution from other health care providers. In reviewing the

basis for this holding, the court stated that after a qualified

health care provider settles with the malpractice victim for its

statutory limits, "the status of the Fund is more in the nature of

a statutory intervenor than a party defendant." Id. (citation

omitted) So at that point, the only issue between the Fund and the
14

victim is the quantum of the victim's damages. Id. The court went

on to quote key portions of the Stuka opinion, including the

following: "However, the Legislature chose in cases of settlement

simply to declare the admission of liability by the $100,000

payment of one health care provider and did not provide for the

Fund's affirmative right to litigate liability on the part of any

other named or unnamed health care providers." Id. (emphasis in

original)

The Fund argued that Stuka was distinguishable because in the

case before the fourth circuit there was no longer any litigation

between the Fund and the victim; the victim had received $200,000

in settlement with the Fund. The court found the distinction to be

immaterial in light of the Stuka court's declaration that "the

statute does `not provide for the Fund's affirmative right to

litigate liability on the part of any named or unnamed health care

providers.'" Id. Even though the victim is no longer involved in

the suit, the liability of the provider to the victim would still

have to be litigated, the court reasoned. Therefore, it concluded

that the Fund was precluded from litigating the issue of the

liability of a non-contributing health care provider once there has

been a settlement for $100,000. Id.

The court proceeded to reject the Fund's subrogation argument,

concluding that the Fund is not a co-obligor with liable health

care providers. Id. It noted that case law interpreting the

Medical Malpractice Act has found that "the position of the [Fund]

is sui generis; it is a creature of statute and has only those
15

rights expressly given to it be the legislature." Id. Accordingly,

the court noted that the Louisiana Supreme Court had already

declared that the Fund is not a negligent party and does not have

the status of an Article 2315 defendant. See Williams v. Kushner,

449 So. 2d 455, 458 (La. 1989). Furthermore, the court recalled

how it had earlier decided that the Fund did not have the right

enjoyed by party defendants to urge the defense of prescription.

See Kelty v. Brumfield, 534 So. 2d 1331, 1334 (La. App. 4th Cir.

1988). In articulating the rational for its decision, the court

again reiterated that the legislature has reserved to the Fund only

the right to contest the amount of a victim's damages and nothing

more.

Finally the court addressed the Fund's policy argument. The

court concluded that the fiscal integrity of the Fund is adequately

protected by the statute which created it, without having to grant

the Fund a right to contribution not contemplated by that statute.

Muphrey, 581 So. 2d at 361.

Applying Stuka and Muphrey to the case at bar, we are left

with the following conclusions. Once Montelepre settled with the

Castillos for $100,000, its liability to the Castillos became

statutorily established such that the Fund was precluded from

contesting Montelpre's liability. More importantly, Montelepre's

payment of its statutory limits also precluded the Fund from

litigating the liability of Dr. Gordillo. Consequently, the Fund

lacks the authority to apportion fault amongst the defendants and

reduce its liability to the Castillos by Dr. Gordillo's share. The
16

only issue the Fund is permitted to litigate in the Castillos'

action for damages is the amount of damages the Castillos have

suffered.

The Fund argues that Stuka and Muphrey are distinguishable

because here, the Fund would be held liable for the acts a of nonqualified provider. The Fund points out that a non-qualified

provider is not protected by the Act, and concomitantly, that the

Fund is not responsible for his conduct. From this the Fund

reasons that it must necessarily have the right to determine a nonqualified provider's percentage of fault and reduce its exposure by

that amount. This right, the Fund argues, enables it to protect

its fiscal integrity.

We agree that Stuka and Muphrey are distinguishable from the

case at bar. However, a careful analysis of these cases reveals

the distinction to be immaterial. The courts in Stuka and Muphrey

arrived at their holdings by analyzing the statute to determine the

rights of the Fund as a creature of the legislature. In both

cases, the courts determined that the status of the Fund was such

that it lacked the statutory authority to litigate liability

issues. The analytical approach taken by the courts in these cases

properly focused on the status of the Fund. In point of fact, it

is the status of the Fund that was determinative in both cases.

Taking this same analytical approach, we also consider the

status of the Fund to be determinative. The status of the Fund as

a defined creature of the legislature is such that it lacks the

authority under the statute to apportion fault amongst providers
 

6The Fund raises several additional arguments that we find

to be insupportable. One such argument relies upon articles 1803

and 1804 of the Louisiana Civil Code which address the rights and

benefits afforded remaining solidary obligors when a co-obligor

is released from liability to an obligee. However, the status of

the Fund is such that it is not a co-obligor with liable health

care providers. Muphrey, 581 So. 2d at 360. 

Another argument asserts that the Louisiana legislature has

"confirmed" that the Fund is only responsible for the damages

caused by a qualified health care provider by adding items (x)

and (xi) to section 40:1299.44 (D)(2)(b). Item (x) provides the

Fund with the right to defend itself from malpractice claims for

which a non-qualified provider may be partially liable. Item

(xi) allows the Fund to obtain indemnity and reimbursement of all

amounts for which the non-qualified provider may be liable.

17

and reduce its liability by the non-qualified provider's share. We

find nothing in the statute or interpretive case law to indicate

that the status of a provider as unqualified under the statute

should affect this conclusion. More specifically, the fact that

one provider is not qualified does not expand the Fund's authority

beyond that which is expressly stated in or honestly implied from

the language of the statute. Consequently, we consider that fact

to be immaterial.

Examining the Fund's argument from this perspective reveals it

to be basically the same public policy argument it pressed in

Muphrey: allowing the Fund to litigate the fault of a provider and

thereby reduce the Fund's exposure protects the fiscal integrity of

the Fund. And although the statute and case law make clear that a

provider must be qualified under the Act to be subject to its

protection, we are unwilling to read into the statute the Fund's

affirmative right to litigate liability issues once a qualified

provider pays its statutory limits. Thus, the Fund's first point

of error is overruled.6
We note that the Fund became statutorily liable for the

Castillos' excess damages on March 27, 1991, the day the district

court approved the Castillo/Montelepre settlement. The effective

date of the amendment at issue is September 6, 1991.

Furthermore, we do not consider this amendment to constitute

a confirmation of any rights the Fund possessed at the time it

became liable. Rather, we view the inclusion of these provisions

to create in the Fund rights that are substantive in nature and

effect and additional to those rights that were expressly and

impliedly contained in the statute at the time of the Fund's

liability.

Finally, the Fund asserts that the right of apportionment

only comprehends apportioning damages and not liability. Thus,

the Fund argues that if allowed to apportion damages, it would

not be litigating liability issues. This argument is completely

fatuous. Dr. Gordillo's portion of damages would necessarily be

proportionate to his share of fault. La. Civ. Code. art. 1804. 

And determining his proportionate share of fault would

necessarily require determination of both Dr. Oms and

Montelepre's fault. See Muphrey, 581 So. 2d at 361. Thus, not

only would liability issues be litigated, Montelepre's liability

would have to be litigated. And the latter proposition is

precisely what the statute forbids.

18

C. Interest on the Credit

As indicated above, the district court awarded the Castillos

legal interest on their entire $500,000 general damage award even

though it credited the Fund $200,000 because of Dr. Oms and

Montelepre's settlements. In its third point of error, the Fund

challenges the court's interest award by arguing that the court

improperly held the Fund liable for interest on the $200,000

credit. Its first argument in support of this position relies on

the terms of the statute.

Section 40:1299.42 (B)(1) indicates that the total amount a

malpractice victim can recover from the Fund, exclusive of future

medical care and related benefits, "shall not exceed Five Hundred

Thousand Dollars plus interests and cost." (emphasis added).

Section 40:1299.42 (D)(5) provides for the Fund to receive a credit
19

"in the amount of malpractice liability insurance in force as

provided for in La. R.S. 40:1299.42(B)(2)" once a victim settles

with a provider and continues its action against the Fund.

(footnote omitted). Section 40:1299.42 (B)(2) indicates that a

qualified provider "is not liable for an amount in excess of One

Hundred Thousand Dollars plus interest thereon accruing after April

1, 1991, for all malpractice claims ..." (emphasis added).

Whether the Fund may properly be held liable for interest

accruing on the entire $500,000 depends upon the interpretation

applied to subsections (D)(5) and (B)(2). There are at least two

possible interpretations of these subsections. Under the first,

(D)(5)'s reference to "the amount of malpractice liability

insurance in force as provided for in [(B)(2)]" could be read to

mean that the Fund receives a credit in an amount equal to only the

$100,000 liability insurance limits which providers are required to

maintain under the act. Under this interpretation, the Fund would

not receive credit for any interest on the $100,000 as provided in

subsection (B)(2). Thus, the Fund would be liable for interest on

the total $500,000 award.

A second interpretation could read (D)(5)'s reference to

(B)(2) to mean that the Fund should receive a credit in an amount

equal to not only the $100,000 insurance limits, but also the

"interest thereon accruing after April 1, 1991." However, applying

this interpretation to the facts here would not change the result

reached by the first interpretation. Dr. Oms and Montelepre

settled with the Castillos on March 27, 1991, five days before the
20

April 1st date upon which interest would have begun to accrue.

Thus, there was no interest in existence for which the Fund could

have received a credit.

Because we find under either interpretation of the statute

that the district court's award of interest on the entire $500,000

was not error, we will not decide which interpretation more

accurately reflects the will of the Louisiana legislature. 

In its second argument challenging the interest award, the

Fund relies on the releases executed by Dr. Oms and Montelepre in

their settlements with the Castillos. The Fund asserts that by

releasing Dr. Oms and Montelepre from any claim to legal interest

arising from their malpractice action, the Castillos necessarily

released the Fund from liability for legal interest under the

statute. The Fund offers no authority for its position.

The fundamental defect in the Fund's argument is that it

overlooks the fact that the Castillos' had two independent claims

for interest on two different sums. The Castillos' civil action

against Dr. Oms and Montelepre gave rise to a claim for legal

interest on any amount of damages they might recover in judgment

against the providers. La. Rev. Stat. § 4203 (West 1993); La. Code

Civ. Proc. art. 1921. The Castillos' action against the Fund gave

rise to a right under the statute to receive legal interest against

the Fund on any damage award up to the $500,000 cap. La. Rev. Stat.

§ 40:1299.47 (M). Thus, when the Castillos' compromised their

action against Oms and Montelepre, they compromised their right to

receive legal interest arising from only that action. Their action
 

7As an alternative position, the Fund asserts that it is

only liable for interest accruing on the $500,000 from "the date

of judicial demand" up to the date the Castillos settled with Dr.

Oms and Montelepre. The plain language of the statute forecloses

this argument. Section 40:1299.47 M clearly states that interest

shall accrue on "a judgment." At the time of the Castillos

settlement with Dr. Oms and Montelepre, there was no judgment. 

Consequently, the district court properly determined the time of

accrual.

21

against the Fund and concomitant right to legal interest under the

statute was unaffected by the settlements.

The Fund's third point of error is overruled.7

D. Medical Expenses 

In its final point of error, the Fund contends that the court

erroneously awarded the Castillos $280,000 in medical expenses on

top of their $500,000 general damage award. The Fund maintains

that the $500,000 general damage award is inclusive of any award

for past medical expenses.

This argument is contrary to the plain language of the

statute. Section 40:1299.42 (B)(1) clearly states that the

$500,000 general damage award is "exclusive of future medical care

and related benefits as provided in R.S. 40:1299.43." Section

40:1299.43 (B)(1) states that "`Future medical care and related

benefits' ... means all reasonable medical, surgical,

hospitalization, physical rehabilitation, and custodial services

and includes drugs, prosthetic devices, and other similar materials

reasonably necessary in the provision of such services, after the

date of the injury." (emphasis added). Thus, the district court

correctly awarded the $280,000 in past medical expenses as an

amount additional to it general damage award. Maxwell v. Soileau,
 

8We note that the Fund also challenges the court's general

and medical expense damages awards as lacking any evidentiary

support. These arguments, however, are foreclosed by admissions

contained in the Fund's response to the Castillos' motion for

summary judgment.

22

561 So. 2d 1378, 1390 (La. App. 2d Cir. 1990) ("Additionally, it is

well-established that the term `future medical care and related

benefits' includes not only those expenses incurred after the date

of trial but also those medical expenses incurred after the date of

injury but before the date of trial. [numerous citations omitted]

Therefore, under appropriate circumstances the court may award

$500,000 plus all medical expenses incurred from the date of

malpractice without exceeding the limit of recovery set forth in

La. R.S. 40:1299.42.")

The Fund's fourth and final point of error is overruled.8

E. The Bond

The district court found that under F.R.C.P. 62(f) the Fund

was entitled to a stay of judgment without having to post a bond.

The court concluded that the Louisiana legislature intended the

Fund to be exempt from having to post a bond pursuant to the terms

of La. Rev. Stat. § 13:4581. It also reasoned that the provisions

under the Medical Malpractice Act by which judgments are paid

provide sufficient security to protect the Castillos' right to

recover on their judgment. On their cross-appeal, the Castillos

assert that the district court erred by allowing the Fund to stay

execution without posting a bond.

F.R.C.P. 62(f) provides:
23

In any state in which a judgment is a lien upon the

property of the judgment debtor and in which the judgment

debtor is entitled to a stay of execution, a judgment

debtor is entitled, in the district court held therein,

to a stay as would be available to the judgment debtor

had the action been maintained in the courts of the

state.

F.R.C.P. 62(f). The obvious purpose behind this rule is to allow

appealing judgment debtors to receive in the federal forum what

they would otherwise receive in their state forum. This purpose,

however, is qualified by the requirement that the state forum treat

judgments as a lien, or encumbrance, on the property of judgment

debtors. The purpose behind this requirement is also plain:

judgment creditors must be afforded security while judgment debtors

appeal.

There is no question that the Fund is entitled to stay

judgment without a bond under Louisiana law by virtue of the very

recent amendment to section 13:4581. The amended section provides:

§ 4581. Public boards and commissions not required to

furnish bond

State, parish and municipal boards or commissions

exercising public power and functions, sheriffs,

sheriffs' departments, and law enforcement districts, and

the Patients Compensation Fund, or any officer or

employee thereof, shall not be required to furnish any

appeal bond, or any other bond whatsoever in any judicial

proceedings instituted by or brought against them, that

arise from activities within the scope and course of

their duties and employment.

The amended version was signed by the governor on June 10, 1993 and

became effective August 15, 1993. Thus, applying the amended
 

9We find that section 13:4581's exemption of the Fund from

having to post a supersedeas bond is procedural in nature and

effect and therefore should be applied retroactively to this

litigation. Op. La. Att'y Gen. 93-486 (1993); Cf Southern

Construction Co. v. Housing Authority of the City of Opelousas,

189 So. 2d 454, 458 (La. App. 3rd Cir. 1966) (holding that the

provision of section 13:4581 relating to the furnishing of an

appeal bond is purely procedural and therefore will be applied

retroactively).

 

10In Louisiana, the filing of a judgment with the recorder

of mortgages creates a "judicial mortgage." La. Civ. Code art.

3300. A judicial mortgage is established by law to secure a

24

provision retroactively, we find the Fund to be entitled to a stay

without bond under Louisiana law.9

We believe that the Fund was entitled to a stay of execution

without having to post a bond in federal forum as well. In this

diversity action, great deference must be given to the manifest

desire of the Louisiana legislature to allow the Fund to appeal

without bond. We note that on May 24, 1993, the Louisiana Supreme

Court declared that the Fund was not exempt from posting a bond

under the then unamended section 4581. Rodriguez v. Louisiana

Medical Mutual Insurance Co., 618 So. 2d 390, 394 (La. 1993).

However, on June 10, 1993, the Governor approved the amended

version of section 4581 that effectively overruled this decision by

specifically exempting the Fund from having to "furnish any appeal

bond, or any other bond whatsoever in any judicial proceedings."

Although we are convinced that the judgment against the Fund

is not a lien on the monies contained in the Patient's Compensation

Fund, we believe that the Medical Malpractice Act provides

sufficient security to judgment creditors so as to satisfy the

purpose behind the Rule 62(f) judgment as a lien requirement.10 The
judgment. Id. art. 3284. A judicial mortgage secures a judgment

for the payment of money. Id. art. 3299. Once filed, the

judicial mortgage "burdens" all property of the judgment debtor

that is susceptible of mortgage by paragraphs (1) through (4) of

Louisiana Civil Code Article 3286. Id. art. 3302. The property

interests referenced in those paragraphs deal strictly with

immovable or real property type interests. See Id. art. 3286. 

Thus, movable or personal property interests, including monies,

are not subject to a judicial mortgage. See Id.; Succession of

Macheca, 147 La. 164 84 So. 574 (1929). Consequently, the monies

contained in the Patient's Compensation Fund are not subject to a

judicial mortgage.

c:br:opin:92-3601:cf 25

Act provides for the satisfaction of judgments out of the Patient's

Compensation Fund on a semi-annual basis. La. Rev. Stat. 40:1299.42

(B)(3)(a). In the event that the fund would be depleted by the

satisfaction in full of all such judgments, then the amount paid to

each judgment creditor is to be prorated. Id. § 40:1299.44

(A)(7)(c). Any amounts left unpaid are to be paid in the following

semi-annual periods. Id. § 40:1299.44 (A)(7)(d) & (e). Thus

judgment creditors are able to recover on their judgments.

The Castillos' point of error on cross appeal is overruled.

IV. Conclusion

The district court's judgment is AFFIRMED in all respects.