In Abate v. Healthcare International, Inc., 560 So. 2d 812 (La. 1990), the supreme court addressed a situation where the defendant health care providers were not enrolled in the PCF at the time of the alleged malpractice. Before suit was filed, defendants qualified under the Act.
The insurance policies the defendants filed to establish their financial responsibility were claims-made policies with retroactive coverage encompassing the dates of defendants' alleged malpractice.
Although the policies were retroactive, the surcharges paid to the PCF did not cover the same retroactive period as the policy, thus the court found the requirements of LSA-R.S. 40:1299.42 were not met to qualify the defendants under the Act at the time of the alleged malpractice.