Healthcare News: Recent Developments in Louisiana

Healthcare facilities are exposed to liability in a variety of ways; primarily from breaches in the appropriate standard of medical care (i.e. medical malpractice), but also for premises liability (e.g. slip and falls) and administrative negligence (e.g. credentialing decision). The attached paper from the Trust Fund’s defense counsel updates recent judicial developments in these areas.

COVID-19 Public Health Emergency Ends

On March 11, 2020, in Proclamation Number 25 JBE 2020, the Governor of the state of Louisiana declared a statewide public health emergency existed in the State of Louisiana because of COVID-19 pursuant to the Louisiana Health Emergency Powers Act. The COVID public health emergency order was renewed multiple times. The public health emergency expired on March 16, 2022, and the Governor decided not to renew it again.

According to the Louisiana Health Emergency Powers Act, Louisiana Revised Statutes 29:771 (2)(c), during a state of a public health emergency, any health care provider shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct. “Health care provider” is defined in the Act to include a clinic, person, corporation, facility, or institution which provides health care or professional services by a physician, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, psychologist, or psychiatrist, and any officer, employee, or agent thereof acting in the course and scope of his service or employment.

Instructing MRP on Gross Negligence Standard

In In re Medical Review Panel Proceeding of Welch, 2021 WL 5869131 (La. App. 5th Cir. 11/18/21), the Louisiana Fifth Circuit Court of Appeal considered whether the medical review panel should assess allegations of medical malpractice during a state of public health emergency under the “modified standard of care, gross negligence or willful misconduct,” established by the Louisiana Health Emergency Powers Act (LHEPA).

In this case, the patient filed a medical malpractice claim against Dr. Kenneth Williams in connection with the medical treatment he provided from April 16, 2020, through May 6, 2020. A chairperson was selected and prior to the panel considering the evidence, Dr. Williams filed a Motion to Enforce Compliance with the Louisiana Medical Malpractice Act and a Petition for Declaratory Judgment seeking a ruling that the chairperson must instruct the panel to consider the allegations under a modified standard of care, gross negligence or willful misconduct, under the LHEPA. The trial court denied the Petition for Declaratory Relief, but granted the Motion to Enforce Compliance with the Louisiana Medical Malpractice Act and said the attorney chairperson:

“[H]as the duty to provide legal advice to the panel and to advise them on what standards of care may be applied and is ordered to consider the governor’s order and any and all other case law that he or she may be instructive on what standard of care to apply in this case.”

The patient filed a Writ with the Louisiana Fifth Circuit Court of Appeal on the granting of the Motion to Enforce Compliance with the LMMA. The Fifth Circuit held that the granting of the physician’s Motion was warranted and denied the writ in a detailed opinion. The Fifth Circuit noted that the LMMA provides that the chairperson shall advise the panel relative to any legal question involved in the review proceeding. The Fifth Circuit said the trial court ordered the chairperson to perform his statutory duty to advise the panel concerning the law regarding what standard of care may be applied to the patient’s claims of medical malpractice considering the executive order declaring a state of public health emergency and other applicable case law. The Fifth Circuit found no error in that ruling and no reason to disturb the trial court’s determination.

Dr. Williams also sought writs on the denial of his Petition for Declaratory Judgment and the trial court failing to order the chairperson to instruct the medical review panel that a gross negligence standard should be applied to the medical malpractice claim. The Fifth Circuit denied the writ in In Re Welch, 2022 WL 242683 (La. App. 5th Cir. 1/26/2022) and said:

“If the trial court were to order [the chairperson] to instruct the panel that the heightened standard of care in LHEPA must be applied by the panel in considering the alleged malpractice of Dr. Williams, this would be tantamount to the trial court interjecting itself into a non-judicial proceeding and issuing a declaratory judgment, which we have already determined the trial court does not have the authority to do under the LMMA.”

The Fifth Circuit also found no reason to disturb this ruling time.

Dr. Williams filed a Writ Application with the Louisiana Supreme Court, which was also denied. Justices Weimer, Hughes, and Griffin would have granted the Writ Application. Justice Hughes said the following about his vote to grant the Writ Application in In Re: Medical Review Panel Proceeding of Welch, 336 So. 3d 451 (La. 4/20/2022):

“I would grant the writ to address the constitutionality of La. R.S. 29:771(B)(2)(c)(i), which the lower courts did not. It is absurd to change the standard of care for every medical malpractice case even though the case may have nothing to do with the reasons an emergency was declared. The statute may obviously be overbroad in its application.”