Recent Legal Developments in Medical Malpractice

Recent decisions from Louisiana courts and legislative changes continue to shape the medical malpractice landscape.

Recent developments involving the Louisiana Medical Malpractice Act, the Louisiana Health Emergency Powers Act, medical review panels, prescription, summary judgment, and comparative fault may have important implications for healthcare providers and medical malpractice litigation.

This article, prepared by Chris LeBlanc of Watson, Blanche, Wilson, Posner, highlights key Louisiana medical malpractice cases and legislative developments from 2025 and early 2026.

The decisions address issues ranging from whether understaffing, equipment maintenance, and negligent credentialing claims fall within the Louisiana Medical Malpractice Act to the requirements for medical review panels, expert testimony, prescription, and liability protections under the Louisiana Health Emergency Powers Act.

For Louisiana healthcare providers, understanding these developments is important not only when responding to a medical malpractice claim, but also when evaluating potential liability, compliance, and risk management practices. The following cases and legislative updates provide insight into how Louisiana courts are interpreting the scope of medical malpractice claims and applying recent changes to healthcare liability law.

Claim of Understaffing Within Scope of Act In Broden v. Priority Management Group, LLC, 2026 WL 394655 (La. 2/12/2026), the Louisiana Supreme Court found a claim against a nursing home management company, Priority Management Group (PMG), alleging understaffing that allegedly led to inadequate care was within the scope of the Louisiana Medical Malpractice Act. PMG asserted that the plaintiff purposefully characterized the claims as “administrative negligence” to avoid the Act’s cap on damages. The Louisiana Supreme Court agreed. According to the Supreme Court, based on the definitions of “malpractice” and “health care” in the Act, the cause of action arose from acts PMG took or failed to take during the patient’s care. The Supreme Court also analyzed the allegations under the Coleman factors. The court said claims of understaffing and poor staffing directly relate to the degree of care that was, or should have been, provided to the patient.

Expert medical evidence will be required to establish both the standard of care for the sufficiency of nursing staff based on the patient’s needs, whether those medical needs were properly assessed, and whether PMG breached the standard of care by failing to ensure that the home has sufficient resources to care for the patient in accordance with his needs. The court also said that the failure to provide sufficient, competent staff to meet the patient’s needs would require an assessment of his condition and a plan of care during his stay at the home.

The Supreme Court said the following about the Billeaudeau decision related to negligent credentialing:

“This case is distinct from Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846 (La. 10/19/16), 218 So. 3d 513. Unlike the allegations in Billeaudeau, the allegations here do not involve PMG’s failure to follow its own bylaws or review compliance with the professional education requirements. As noted in Thomas v. Reg’l Health Sys. of Acadiana, LLC, 2019-00507 (La. 1/29/20), 347 So. 3d 595, 602, the Billeaudeau allegations could be asserted against any number of employers, not just in the realm of healthcare, for negligent hiring of an unqualified professional.’ Id.”

The Supreme Court also addressed the amendments to the definitions of “health care” and “malpractice” in Louisiana Revised Statutes 40:1231.1(A)(13) in Act 342 of the 2025 Regular Legislative Session that added the following: 

“This includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

Although the Supreme Court found the amendments did not impact its analysis since the claims were medical malpractice claims under either version of the law, the court said the amendments clarify the existing law, which could impact whether those amendments apply to claims existing before the effective date:

“The parties argue the effect of Act 342 of the 2025 Regular Session, effective August 1, 2025, which changed the language of La. R.S. § 40:1231.1 to amend the Act’s definitions of healthcare provider and malpractice to include certain additional types of negligence. Specifically, La. R.S. 40:1231.1(13) states that ‘malpractice’ includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in the administration or managerial capacity necessary for the delivery of such care.’ The amendment also changed the definition of ‘health care’ and ‘health care provider’ under La. R.S. 40: 1231.1(9) and (10). While the new amendments clarify the existing law, they do not impact our analysis here, which finds that these claims were – under either version of the law – medical malpractice claims.”

Claim for Failure to Stabilize Covered by Act – Not EMTALA

In Allen v. Lafayette General Medical Center, 2026 WL 943188 (La. App. 3rd Cir. 4/8/2026), the Louisiana Third Circuit Court of Appeal found a claim for failure to stabilize a patient was within the scope of the Louisiana Medical Malpractice Act despite the plaintiff’s assertions that the claim was purely an EMTALA claim not subject to the provisions of the Act. In this case, the patient was injured in a motor vehicle collision, and he sustained multiple injuries. He was treated in the ER, admitted to the hospital, and received treatment for three days before he was discharged. Upon returning home, the patient felt like he was going to die, and he was transported to another hospital where he had surgery for a VATS decortication procedure, a chest tube for a pneumothorax, and surgery for a distal radius fracture.

The patient filed a lawsuit against the hospital and asserted the hospital violated EMTALA by failing to stabilize his emergency medical condition, knowing he was uninsured. The hospital filed an Exception of Prematurity that was sustained by the trial court. According to the trial court, because the patient was admitted and received treatment for his condition for several days, his claims were covered by the Medical Malpractice Act rather than EMTALA. The trial court’s decision was affirmed by the Third Circuit.

The Third Circuit noted that there was no uniform consensus in the U.S. Circuit Courts regarding when a hospital’s stabilizing requirements under EMTALA end. The Fourth and Ninth Circuits hold that the duty to stabilize ends once the patient is admitted for inpatient care, while the Sixth Circuit holds that the duty requires stabilizing the patient’s emergency medical condition before discharge, however long that may take. The Third Circuit found that, based on the records in this case, the patient was stabilized regardless of whether the stabilizing duty ends upon inpatient admittance or when the emergency medical condition is stabilized. The court noted that the patient remained in the hospital for three days while receiving multiple imaging tests and physician visits. The court also found it significant that the patient’s planned discharge was delayed by a day to ensure he was stabilized.
 

Fall While Leaning on Bed Not Covered by Act
 

In Schettler-Diaz v. Ochsner Medical Center, 2025 WL 3645587 (La. App. 5th Cir. 12/16/2025),
the Louisiana Fifth Circuit Court of Appeal found a claim related to a fall caused by an ER bed
moving because its wheels were unlocked was not within the scope of the Act. In this case, the
plaintiff presented to the ER with high blood pressure and a possible stroke. After completing
some paperwork, she was directed to a treatment room where she was to sit down on the bed
to await further assistance.
According to the petition, as she attempted to sit on the bed, it moved on its wheels, causing
her to lose balance and fall, breaking her ankle. The petition asserted that the bed’s wheels had
not been properly locked, which caused the fall. In response to the petition, the hospital filed
an Exception of Prematurity and introduced the medical record that indicated the patient
reported to personnel she dropped paperwork on the floor, bent over to pick it up, and fell off
the bed.
The trial court denied the Exception of Prematurity, and the Fifth Circuit denied the hospital’s
Writ Application. The Fifth Circuit analyzed the case under the Coleman factors. The court said
the evidence did not show that only nurses could lock the bed’s wheels, nor that this act was
only done once a patient had been assessed as a fall risk. The court said the unsecured bed
posed a hazard to any person who might lean against it, for whatever reason, whether hospital
personnel, a patient who was not a fall risk, or anyone accompanying a patient, and was not
related to the treatment of the patient.
The court also said that the knowledge that a rolling bed may cause a person to lose balance if
it is leaned on, and that such an unsecured bed poses a potential hazard to many people who
may encounter it, is within the normal experience of lay people, and it does not require expert
testimony. The court concluded that the plaintiff’s claims did not fall within the provisions of
the Medical Malpractice Act.
Negligence Maintenance Within Scope of Act
In Armond v. West Jefferson Holdings, LLC, 2025 WL 2481131 (La. App. 5th Cir. 8/28/2025), the
Louisiana Fifth Circuit Court of Appeal found the alleged negligent maintenance of a Computed
Tomography Angiography scanner (CTA) was within the scope of the Louisiana Medical
Malpractice Act and reversed the denial of the hospital’s Exception of Prematurity.
In this case, the patient presented to the ED with chest pain and shortness of breath. The
cardiologist recommended a CTA scan. However, due to some mechanical issues with the
scanner, the hospital did not conduct the CTA scan. Instead, the hospital staff took repeated
EKGs and a nuclear stress test, which showed the patient had a low risk of cardiac events. The
patient was discharged.
Four days later, the patient suffered an aortic dissection with cardiac tamponade and died. The
patient’s family filed a lawsuit against the hospital, and in response, the hospital filed an
Exception of Prematurity. The trial court denied the Exception of Prematurity, but the Fifth
Circuit reversed, finding the claims sounded in malpractice. The Fifth Circuit utilized the
Coleman factors and concluded that the claim that the hospital failed to properly maintain the
CTA machine fell within the provisions of the Medical Malpractice Act. The court said the
inoperable equipment resulted in the inability to properly evaluate the patient’s condition and
properly diagnose him, and it was therefore “treatment related.”
The court also said expert testimony will be needed as to why the CTA scan was recommended,
indicated, and ordered, how critical it was to have the CTA imaging, as opposed to the tests that
were performed, and to determine causation. The purpose of the CTA was to assess the
patient’s condition, and the failure to maintain its testing equipment prevented the hospital
staff from properly evaluating and diagnosing the patient.
Maintenance of equipment involves standards related to patient care and adequate treatment
that a hospital is licensed to perform. The court also noted that if the equipment had been
properly maintained and the patient had been properly diagnosed after the CTA test, it is
possible the hospital would have been able to prevent his aortic dissection.
Accessing Protected Health Information Not Covered by Act
In J.L. V. Haymond, 2025 WL 2047904 (La. App. 4th Cir. 7/22/2025), the Louisiana Fourth Circuit
Court of Appeal reversed the granting of an Exception of Prematurity related to a claim that a
hospital employee accessed private and protected health information and posted it on social
media in violation of the Health Insurance Portability and Accountability Act and the hospital’s
Notice of Privacy Practices.
The petition further asserted that the employee continuously posted the medical information
on social media and sent harassing text messages to the patient. The petition asserted that the
hospital was liable for negligently hiring, training, and retaining the employee. The hospital
employee was a patient sitter and a certified nursing assistant. The employee used her
credentials to access the private and protected health information of the patient. The court said
there was no evidence to suggest that the events that led to the alleged access and posting on
social media were related to medical treatment. The employee did not treat or perform any
healthcare-related services for the patient in her capacity as a patient sitter or certified nursing
assistant.
The record demonstrated that the employee accessed the private and protected health
information in contravention of her employment duties. The court said the employee’s actions
were intentionally and maliciously done to bully and harass the plaintiff. The court also
addressed whether the amendments to the definition of “health care” and “malpractice” in the
2025 legislative session applied retroactively to the claims in this lawsuit.
The hospital argued the claims fell within the amended definitions of “health care” and
“malpractice.” The court noted that the effective date of the amendments was August 1, 2025,
and the allegations in this case occurred prior to the effective date. The court also noted that
the legislature did not express an intent as to whether the amendments applied retroactively or
prospectively.
The court said the amendments were substantive in nature as the law establishes new rules,
rights, and duties – or changes existing ones – regarding the services and care related to
administrative procedures and the staffing and licensing of certified staff. The court therefore
found that the amendments to Louisiana Revised Statutes 40:1231.1 cannot be applied
retroactively to the plaintiff’s claims.
Equipment Falling on Patient During Procedure Covered by Act
In Joseph v. West Jefferson Holdings, LLC, 412 So. 3d 1089 (La. App. 5th Cir. 4/2/2025), the
Louisiana Fifth Circuit Court of Appeal affirmed an Exception of Prematurity and found a claim
related to injuries suffered when a piece of medical equipment fell off and cut the patient’s
face was within the scope of the Medical Malpractice Act. In this case, the patient underwent a
Urolift procedure at the hospital.
As part of the procedure, it was necessary to have a cysto-screen (monitor) in the proper
location. As the equipment was being positioned for the procedure, the boom attached collided
with the boom of the light, causing a piece of plastic covering to fall off and cut the patient’s
face above his left eyebrow. In response to the lawsuit, the hospital filed an Exception of
Prematurity, which the trial court granted. The trial court did not address a request that the
plaintiff be allowed to amend the petition to assert a claim under the LMMA.
The Fifth Circuit affirmed, but amended the judgment to allow the plaintiff the opportunity to
attempt to amend his petition to state a claim that does not fall within the ambit of the LMMA.
The court said the allegations were treatment-related because the doctor asked the CRNA to
adjust the equipment used for the medical procedure. The court also said expert medical
testimony may be required to understand how the cysto-screen is used during the Urolift
procedure and to determine whether the medical team’s actions were reasonable under the
circumstances, or whether the appropriate standard of care was breached.
The court said the claims sounded like medical malpractice and the patient should have first
submitted them to a medical review panel in accordance with the Medical Malpractice Act.
Negligent Credentialing
The Louisiana Third Circuit Court of Appeal in Soileau v. Khan, 2026 WL 380256 (La. App. 3rd
Cir. 2/11/2026), reversed the granting of an Exception of Prematurity and found a claim alleging
negligent credentialing fell outside the scope of the Medical Malpractice Act. In Soileau, the
plaintiff asserted that the hospital was negligent in credentialing two surgeons by failing to
adhere to its own bylaws, rules, and policies and procedures for credentialing of physicians to
practice surgery. The plaintiff purportedly linked her injuries to the administrative negligence of
the hospital in credentialing the surgeons. The Third Circuit found the plaintiff’s claim in this
case was like the claim in Billeaudeau v. Opelousas General Hospital Authority, 218 So. 3d 513
(2016), where the Louisiana Supreme Court found negligence in the initial credentialing was not
within the scope of the Act.
The Third Circuit acknowledged that the Louisiana Supreme Court in Thomas v. Regional Health
System of Acadiana, LLC, 347 So. 3d 595 (La. 2020), revisited the issue and found recredentialing
involving multiple re-credentialing reviews over the years was part of the
“training or supervision” of a physician, which is covered by the Act. However, in this case, the
Third Circuit said the hospital presented no evidence that the purported ongoing credentialing
reviews as part of continued appointment to the medical staff were a peer-reviewed process,
that the hospital made any re-credentialing decisions, or that any review ever took place. The
court said the evidence fell short of establishing the hospital’s efforts to train or supervise the
doctors.
In contrast, in Gregory Brooks v. LSU, 2025 WL 2986042 (La. App. 1st Cir. 10/23/2025), the
Louisiana First Circuit Court of Appeal sustained an Exception of Prematurity in a negligent
credentialing case and said:
“WRIT GRANTED. The district court’s June 12, 2025 judgment, which overruled the
Exception of Prematurity filed by defendant, Our Lady of the Lake Hospital, Inc.
(“OLOL”), is reversed. Although the plaintiff alleged a cause of action for negligent initial
credentialing herein, the evidence admitted by the district court showed that Dr. Gaynor
was re-credentialed by OLOL prior to the medical treatment at issue in this case, and as
such, re-credentialing involved ongoing review. Treatment-related medical decisions
and dereliction of skill for which a hospital can be held liable for ‘malpractice’ fall under
the ‘supervision and training’ of the providers once they enter the building and engage
in the practice of medicine therein. Thomas v. Reg’l Health Sys. of Acadiana, LLC, 2019-
00507 (La. 1/29/20), 347 So. 3d 595, 602.
Re-credentialing necessarily falls within the definition of ‘malpractice’ because it
constitutes an ‘unintentional tort’... based on health care or professional services
rendered, or which should have been rendered, by a health care provider, to a patient...
in the training or supervision of health care providers. Id. We find the negligent
credentialing, which necessarily involves the re-credentialing of Dr. Gaynor, which
occurred before the treatment at issue, is so intertwined with the malpractice claims as
to fall within the purview of the definition of ‘malpractice’, and therefore, within the
Medical Malpractice Act. Id. At 604. See also La. R.S. 40:1231.1(A)(13). The Exception of
Prematurity filed by defendant, Our Lady of the Lake Hospital, Inc., is granted and
plaintiff’s claims against Our Lady of the Lake Hospital, Inc. are dismissed, without
prejudice.”
Louisiana Health Emergency Powers Act
U.S. Supreme Court: LHEPA Immunity Does Not Apply to Federal Claims
In Doe v. Dynamic Physical Therapy, LLC, 146 S.Ct.431 (12/2/2025), the United States Supreme
Court found that under the Supremacy Clause, immunity under the Louisiana Health Emergency
Powers Act does not apply to federal claims. In this case, the plaintiff asserted a claim of
intentional discrimination in violation of the Americans with Disabilities Act (ADA) and the
Rehabilitation Act of 1973 for allegedly denying him aquatic physical therapy treatment based
on his HIV-positive status. The Louisiana First Circuit Court of Appeal found the allegations in
the petition did not rise to the level of gross negligence or willful misconduct. The First Circuit
sustained the defendant’s Peremptory Exception, objecting to no cause of action, and
dismissed all allegations made against the defendants.
In a Per Curiam Opinion, the U.S. Supreme Court said:
“Louisiana immunizes healthcare providers from civil liability during public health emergencies.
La. Rev. Stat. Ann. § 29:771(B)(2)(c)(1) (West 2022). Below, the Louisiana Court of Appeal held
that this state statute barred plaintiff’s federal claims. 2024-0723, pp. 11-12 (La. App. 1 Cir.
12/27/24), 404 So. 3d 1008, 1017-1018, writ denied, 2025-00105 (La. 4/29/25), 407 So. 3d 623.
That decision is incorrect. Defining the scope of liability under state law is the State’s
prerogative. But a State has no power to confer immunity from federal causes of action. See,
e.g., Howlett v. Rose, 496 U.S. 356, 383, 110 S.Ct. 2439, 110 L.Ed.2d 332 (1990); Haywood v.
Drown, 556 U.S. 729, 749, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009); Williams v. Reed, 604 U.S.
168, 174, 145 S.Ct. 465, 221 L.Ed.2d 44 (2025). “[T]he Judges in every State” are bound to
follow federal law, “any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.” U.S. Const., Art. VI, cl. 2. Plaintiff’s federal claims may well fail on other
federal grounds. Cf. Cummings v. Premier Rehab Keller, 596 U.S. 212, 222, 142 S.CT. 1562, 212
L.Ed.2d 552 (2022). But that is for the Louisiana courts to decide in the first instance. The
petition for certiorari is granted, the judgment of the Louisiana Court of Appeal is reversed, and
the case is remanded for further proceedings not inconsistent with this opinion.”
LA Supreme Court: LHEPA Constitutional
In Welch v. United Medical Healthwest-New Orleans, 403 So. 3d 554 (La. 3/21/2025), the
Louisiana Supreme Court upheld the constitutionality of the LHEPA. In this case, the plaintiff
filed a Motion to Declare Louisiana Revised Statutes 29:771 (2)(c)(i) unconstitutional, which was
denied by the trial court, and the Louisiana Fifth Circuit Court of Appeal denied the plaintiff’s
Writ Application.
In Welch, the plaintiff filed a petition for Damages and alleged that as a result of the
defendant’s negligence, the patient developed large, open pressure wounds to her back and
sacrum and suffered significant pain and suffering as a result. Defendant filed a Peremptory
Exception of No Cause of Action because of the immunity provided in the LHEPA that provides
health care providers shall not be civilly liable for causing injury to a person except in the event
of gross negligence or willful misconduct.
Plaintiff opposed the exception and argued, among other things, that Louisiana Revised
Statutes 29:771 (2)(c)(i) was unconstitutional. The trial court granted the exception of No
Cause of Action and dismissed the petition, which was upheld by the Louisiana Fifth Circuit
Court of Appeal. In that opinion, the Fifth Circuit found the constitutionality issue was not
properly before the court and remanded the matter to allow the plaintiff the opportunity to
properly challenge the constitutionality of the LHEPA.
On remand, the plaintiff amended the petition to assert a claim that Louisiana Revised Statutes
29:771 (2)(c)(i) was unconstitutional because it violates due process and the adequate remedy
provision, it is overbroad since it applies to health care providers who may be rendering care
unrelated to the public health emergency, and it is a prohibited special law. The plaintiff filed a
Motion to Declare the LHEPA Unconstitutional, which the trial court denied, and the Fifth
Circuit denied the plaintiff’s Writ Application.
The Louisiana Supreme Court granted the plaintiff’s Writ Application. The Supreme Court
found the statute was rationally related to a legitimate government interest and it was
constitutional. The court rejected the argument that the statute should only apply to COVID-
19-related healthcare. The court said LHEPA’s liability provision rationally relates to its goal to
protect the availability of medical services during an emergency. The opinion was written by
Justice Crain. Justice McCallum concurred in the result. Justices Hughes, Griffin, and Knoll
(sitting ad hoc for Justice Cole) dissented.
Summary Judgment and LHEPA Immunity
In Stevens v. Oakdale Community Hospital, 2025 WL 308533 (La. App. 3rd Cir. 11/5/2025), the
Louisiana Third Circuit Court of Appeal affirmed the granting of summary judgment based on
the plaintiff’s failure to establish gross negligence or willful misconduct in connection with
treatment that occurred during the public health emergency.
In this case, the plaintiff opposed the Motion for Summary Judgment with the testimony of her
expert, who found several deviations from the standard of care that he said rose to the level of
gross negligence. In his deposition testimony, the expert agreed that gross negligence was a
legal term, and he included it in his affidavit at the request of the plaintiff’s law firm. The expert
admitted he did not know the definition of gross negligence. The Third Circuit said the expert
affidavit fell short, and the plaintiff had not shown with any of their evidence that the physician
“consciously desired the physical result of his act or knew that such result was substantially
certain to follow from his conduct.
The court said the evidence was insufficient to support the plaintiff’s burden of establishing
gross negligence or willful misconduct as required by the LHEPA. The court also said the expert
affidavit was conclusory and lacked facts to support the claim. In Thompson v. Occupational
Health Centers of Louisiana, 2026 WL 817954 (La. App. 5th Cir. 3/25/2026), the Louisiana Fifth
Circuit Court of Appeal also affirmed summary judgment when the plaintiff’s expert affidavits
failed to mention gross negligence or willful misconduct. In this case, the plaintiff complained of
treatment in July and August 2021 for an injury to his ankle, which was during the public health
emergency. The plaintiff was allegedly told there was no dislocation or fracture, but after
seeking a second opinion, an MRI indicated a fractured ankle.
The plaintiff asserted that the health care provider was negligent in failing to perform proper
diagnostic tests to diagnose his condition. The court recognized that to prevail, the plaintiff
must present evidence that the health care provider was grossly negligent or committed willful
misconduct pursuant to the LHEPA since the alleged medical malpractice occurred during a
public health emergency. In response to the defendant’s Motion for Summary Judgment, the
plaintiff submitted an affidavit of an expert that stated the failure to diagnose the fracture in
the right foot was medical malpractice. The expert affidavit did not mention gross negligence or
willful misconduct. The Fifth Circuit found that the evidence submitted in opposition to the
Motion for Summary Judgment did not meet the burden of proof required to establish gross
negligence or willful misconduct.
No Cause of Action and LHEPA Immunity
In Cortes v. University Healthcare System, 411 So. 3d 1082 (La. App. 5th Cir. 4/2/2025), the
Louisiana Fifth Circuit Court of Appeals sustained defendants’ Exceptions of No Cause of Action,
finding that the allegations in the petition related to treatment during the public health
emergency failed to describe acts of gross negligence or willful misconduct. However, the court
remanded the case with instructions to allow the plaintiff the opportunity to amend her
petition, should she choose to do so. In this case, the medical review panel found that no
defendant deviated from the standard of care in the treatment of the plaintiff. The post-panel
petition asserted that the defendants committed medical malpractice in their treatment of her
nonviable pregnancy that resulted in the removal of her fallopian tube.
The treatment occurred from July 21 through August 5, 2021, during the public health
emergency. In response, the defendants filed Exceptions of No Cause of Action. The plaintiff
filed a supplemental and amending petition to include an allegation of “gross negligence.” The
trial court granted the Exceptions of No Cause of Action and dismissed the lawsuit without
prejudice. The plaintiff appealed. The court initially noted that the question of immunity under
Louisiana Revised Statutes 29:771(B)(2)(c)(1) is an affirmative defense not correctly raised as a
Peremptory Exception of No Cause of Action. The court also noted that under the Louisiana
Code of Civil Procedure Article 1005, if a party mistakenly designates an affirmative defense as
a Peremptory Exception, and if justice so requires, the court shall treat the pleading as if there
had been a proper designation.
The court found no error in the trial court considering the immunity claims in an Exception of
No Cause of Action. The Fifth Circuit found the petition, as amended, did not allege defendants
committed acts of willful misconduct during the plaintiff’s treatment. The petition asserted
alleged failure to timely diagnose and treat an ectopic pregnancy, untimely initiate
Methotrexate therapy, and provide inadequate care once Methotrexate therapy had begun.
The court found these allegations are for “ordinary negligence”. Although the amended petition
included the term “gross negligence” that was not in the original petition, the court found the
allegations did not rise to the level of “extreme departure from ordinary care or the want of
even scant care” or an “entire absence of care.”
The court said the assertions describe “negligent acts.” The court found no error in the trial
court’s determination that the allegations describe ordinary negligence. The court further
found the plaintiff should be allowed the opportunity to amend the petition to state a cause of
action against defendants in conformity with the LHEPA, and the court remanded the matter
with instructions to allow the plaintiff the opportunity to amend her petition, should she
choose to do so. In Ellis v. Mai, 408 So. 3d 416 (La. App. 2nd Cir. 2/26/2025), the Louisiana
Second Circuit Court of Appeal also affirmed the granting of an Exception of No Cause of Action
in a case related to medical treatment during the public health emergency, but also remanded
the case to allow the plaintiff to amend the petition to state a cause of action.
The court in this case also acknowledged that the immunity in the LHEPA is an affirmative
defense, but cited Louisiana Code of Civil Procedure Article 1005 that permitted the court to
treat the pleading as if there had been a proper designation when a party mistakenly
designated an affirmative defense as a Peremptory Exception.
The Second Circuit said the following:
“Ellis alleged that the treatment by Dr. Mai occurred in June of 2021. Ellis concedes in
her appellate brief that the declaration of a public health emergency was in effect at the
time. This would have triggered the immunity provision of La. R.S. 29:771 (B)(2)(c)(i).
Furthermore, Ellis concedes in her appellate brief that there was no allegation of gross
negligence or willful misconduct in the petition. Under these circumstances, we
conclude that the trial court did not err in sustaining the Exception of No Cause of
Action.”
In Dorsey v. Rayville Nursing and Rehabilitation Center, Inc., 407 So. 3d 873 (La. App. 2nd Cir.
2/26/2025), the Louisiana Second Circuit Court of Appeal reversed the granting of an Exception
of No Cause of Action. In this case, the Second Circuit found that a delay of three days before
providing any attention to a patient with a broken leg, despite a nurse assistant hearing and
reporting a popping sound coming from the plaintiff’s leg, constituted prima facie evidence of
gross negligence. The court based its decision on the allegations in the petition since it was
reviewing an Exception of No Cause of Action, even though evidence had been attached to the
exception and opposition. The court conducted a de novo review, assumed the well-pled
allegations in the petition as true, and construed those allegations in the light most favorable to
the plaintiff.
Panel Opinion
Mandatory Admission
In a Per Curiam Opinion, the Louisiana Supreme Court reversed the trial court’s granting of
plaintiff’s Motion in Limine regarding the panel opinion. The court said:
“Granted. A medical review panel opinion is subject to mandatory admission unless the
panel exceeded its statutory authority. La. R. S. 40:1231.8(H); Valenzuela v. Danj, 2023-
00198 (La. 5/16/23), 360 So. 3d 473; Sanderson v. Tulane University Hospital and Clinic,
18-0588 (La. 6/15/18), 245 So. 3d 1043. Unlike the situation in McGlothlin v. Christus St.
Patrick Hospital, 10-2775 (La. 7/1/11), 65 So. 3d 1218, there is no indication the medical
review panel in the instant case found any inconsistencies in the evidence or made any
credibility determinations. See Keller v. Touro Infirmary, 2023-00830 (La. 6/17/23), 362
So. 3d 403.
Instead, the medical review panel relied on undisputed facts contained in the medical
records and other evidence in reaching its opinion. Therefore, we find the entire
medical review panel opinion is admissible. Of course, as with any expert testimony or
evidence, the medical review panel opinion is subject to review and contestation by the
opposing party, and the trier of fact is free to accept or reject any portion or all of the
opinion. McGlothlin, 65 So. 3d at 1227.”
No Restrictions on Panel Member’s Testimony
In a Per Curiam Opinion, the Louisiana Supreme Court in Turner v. Woman’s Hospital
Foundation, 2026-00282 (La. 3/31/2026) reversed the district court’s limiting of the testimony
of the medical review panel doctors to those opinions expressed in the medical review panel
opinion. The court said Louisiana Revised Statutes 40:1231.8(H), which provides “either party
shall have the right to call, at his cost, any member of the medical review panel as a witness,” is
mandatory in nature. According to the Supreme Court, nothing in the statute places any
restrictions on the scope of the panel members’ testimony.
Medical Malpractice Act: Bond
S. Ct. Affirms Dismissal for Failure to Post MMA Bond
In Cantrelle v. Sargent, 404 So. 3d 642 (La. 4/8/2025), the Louisiana Supreme Court sustained a
Motion to Dismiss a lawsuit for failure to post a bond required by the Louisiana Medical
Malpractice Act by the agreed-upon deadline. In this case, the plaintiff filed a post-panel lawsuit
following a panel opinion that the defendant did not breach the applicable standard of care.
The defendant filed a Motion for Bond for Medical Review Panel Costs. The plaintiff and
defendant agreed to a consent judgment that required the plaintiff to post a cash or surety
bond for the costs of the medical review panel on or before August 9, 2024. The consent
judgment further provided that “no further action will be taken in this matter until such bond is
posted with the exception that if the deadline above lapses without filing of a cash or surety
bond referenced above, then defendant may file an ex parte Motion to Dismiss the suit, which
shall be granted without the need for a hearing.” The plaintiff failed to post the bond on or
before August 9, 2024. The defendant filed a Motion to Dismiss, and on August 26, 2024, the
plaintiff filed an opposition to the motion and posted the bond the same day. The trial court
denied the defendant’s motion, and the Court of Appeal denied the defendant’s Writ
Application.
In a Per Curiam Opinion, the Louisiana Supreme Court granted the defendant’s Writ
Application, reversed the district court, granted the Motion to Dismiss, and rendered judgment
dismissing the lawsuit without prejudice and made its ruling peremptory. The court focused on
the consent judgment between the parties and noted that the court must give effect to the
consent judgment and grant the defendant’s ex parte Motion to Dismiss the lawsuit.
Peer Review Privilege
In Re: Porche, 414 So. 3d 1210 (La. App. 4th Cir. 6/2/2025), the Louisiana Fourth Circuit Court of
Appeal analyzed the peer review privilege in Louisiana Revised Statutes 13:3715.3. In this case,
the plaintiff in a medical malpractice case involving a nurse practitioner and physician sought
documents that pertained to internal investigation or review of the NP or physician as to the
patient and his treatment, written or recorded statements obtained with respect to the
treatment provided by the NP and physician to the patient, disciplinary records, complaints and
internal reviews associated with the NP and physician and the entire personnel file of the NP
and physician.
After an in-camera inspection, the court ordered production of the narrative summary of the
NP only and found the remaining documents were protected under the peer review statute.
The plaintiff sought review of the ruling from the Fourth Circuit. The court found some of the
documents were purely personnel documents. The court said that, as discussed in Smith v.
Lincoln General Hospital, 605 So. 2d 1347 (La. 1992), these types of documents containing
otherwise discoverable facts are not protected from disclosure under the peer review statute.
The court granted the Writ Application as to those personnel documents and ordered
production of those documents with redaction of strictly personal and confidential information
of the NP and physician, such as social security numbers and bank account numbers that are
not relevant to the proceedings and do not require disclosure.
However, the court denied the Writ Application as it related to all documents about
information regarding the action taken by the hospital’s peer review committee or its exchange
of honest self-critical study. The court said those documents encapsulated more than just
merely factual accountings of otherwise discoverable facts and came within the scope of the
peer review privilege in Louisiana Revised Statutes 13:3715.3.
JNOV: Expert Testimony
In Rayborn v. Albea, 416 So. 3d 854 (La. App. 1st Cir. 7/11/2025), the Louisiana First Circuit
Court of Appeal reversed the trial court’s denial of a JNOV when the plaintiff failed to present
any expert testimony at trial to establish a breach of the standard of care or causation. In this
case, The NeuroMedical Center appealed both a judgment rendered against it after a jury trial
and a judgment denying its Motion for JNOV. This case involved neurosurgery and postoperative
care of a patient at The NeuroMedical Center. The jury found no negligence by the
neurosurgeon who performed surgery on the plaintiff, but found The NeuroMedical Center
liable to the plaintiff for general damages.
The plaintiff did not present any expert testimony regarding his claims against The
NeuroMedical Center. The focus of the trial was the neurosurgeon’s alleged “failed” spinal
fusion surgery and whether the continued medical issues the patient suffered after the surgery
were causally related to the neurosurgeon’s negligence. The experts only tangentially
addressed conduct by The NeuroMedical Center in the patient’s care. The court said the
assertions did not describe negligence that was so obvious that a layperson could infer
negligence without the guidance of expert testimony. The court said the requisite amount of
care The NeuroMedical Center owed the patient postoperatively would require expert
testimony regarding the details of the patient’s post-operative condition and the standard of
care owed by a neuromedical facility to a patient recovering from spinal fusion surgery. The
court noted that the only testimony regarding The NeuroMedical Center’s actions was elicited
from defense counsel.
The defense elicited testimony that the care of the patient by The NeuroMedical Center was
appropriate and within the standard of care. The court said the evidence pointed so strongly in
The NeuroMedical Center’s favor that reasonable jurors could not have arrived at a contrary
verdict. The court said without supporting expert testimony, reasonable jurors could not have
found that The NeuroMedical Center failed to exercise the requisite amount of care toward the
patient that his post-operative condition required, nor could they have found that the
NeuroMedical Center’s negligence caused the patient to experience past mental anguish.
Four-Member Medical Review Panel Not Allowed
In Re: Medical Review Panel Proceeding of Vionne Walker, 2025 WL 3539126 (La. App. 5th Cir.
12/10/2025), the Louisiana Fifth Circuit Court of Appeal reversed the granting of a Motion to
Appoint Four-Member Medical Review Panel. In this case, the plaintiff filed a medical review
panel request against four physicians who practiced in four different medical specialties:
internal medicine, emergency medicine, psychiatry, and radiology.
A medical review panel of three physicians, consisting of specialties in internal medicine,
emergency medicine, and psychiatry, was formed. Defendants filed a Motion to Appoint Four-
Member Medical Review Panel, arguing that an additional panelist was needed to represent
each of the defendant/physician specialties. The trial court granted the Motion, but the Fifth
Circuit reversed. The Fifth Circuit said Louisiana Revised Statutes 40:1231.8 (C) specifically
states that the medical review panel shall consist of three health care providers. The court also
noted that the legislature considered the formation of a medical review panel where there
were multiple defendants in Louisiana Revised Statutes 40:1231.8 (C)(3)(h) when it referenced
the number of health care providers each side may select.
Prescription
Equitable Considerations and Contra Non Valentum
In Re: Medical Review Panel Proceedings of Poree, 406 So. 3d 1159 (La. 4/23/2025), the
Louisiana Supreme Court applied equitable considerations to support the application of contra
non valentum to suspend prescription. The court said in a Per Curiam Opinion: “Respondents
failed to comply with statutory time delays, negotiated in bad faith, abused professional
courtesies extended to them in good faith, and requested extensions they did not need and
never intended to honor.
Rather, although the applicant filed her lawsuit in September, well ahead of the February
prescription date, respondents obtained extensions as a delay tactic to mislead the applicant
and lull her into inaction to prevent the filing of a default judgment or request for review by a
medical review panel. It appears respondents’ intent was to conceal their status as qualified
healthcare providers until after the prescription had run on the applicant’s claims against them,
as shown by the fact that respondents filed the exception immediately after the prescription
had run.
The respondents took calculated actions to lull the applicant into inaction to escape liability and
deprive her of her day in court. The facts and equitable considerations in this case, therefore,
support the application of contra non valentum to suspend the prescriptive period.
Consequently, the applicant’s request for a medical review panel was timely, and the lower
courts erred in sustaining the Exception of Prescription. As such, the Exception of Prescription
filed by respondents is overruled, and this matter is remanded to the district court for further
proceedings.”
Request for Medical Records Factor in Prescription
In Raman v. Newsome, 2025 WL 1433376 (La. App. 1st Cir. 5/19/2025), the Louisiana First
Circuit Court of Appeal reversed the denial of an Exception of Prescription in a claim filed on
August 24, 2023, related to the treatment of a patient who died on April 10, 2021. The court
said: “We find that plaintiffs had constructive knowledge of an alleged malpractice claim
against the defendant insofar as they had specifically inquired about the deceased's medical
records on September 30, 2021, and subsequently filed two separate malpractice claims against
several health care providers on December 2, 2021.
At a minimum, based on the evidence presented, the certified medical records are dated
January 5, 2022, but plaintiffs did not file the malpractice claim against Dr. Robert R. Newsome,
Sr., until August 24, 2023, more than one year later. Accordingly, the Exception of Prescription
filed by defendant, Robert R. Newsome, Sr., M.D., is granted and plaintiffs’ claims against
defendant, Robert R. Newsome, Sr., M.D., are dismissed.”
Failing to Introduce Evidence: Exception of Prescription
In Re: Mitchell, 2025 WL 1024014 (La. App. 1st Cir. 4/7/2025), the Louisiana First Circuit Court
of Appeal reversed the granting of an Exception of Prescription based on the failure to
introduce evidence at the hearing. In this case, the court noted that in support of the exception,
the defendant attached the medical review panel request and correspondence sent to the
claimant. However, none of these documents or any evidence was introduced at the hearing
on the exception. The court said that because these documents were only attached to the
memorandum in support of the exception and were not introduced at the hearing, none of the
evidence relied upon by the defendant was properly before the trial court at the time of the
hearing.
The court said it had no petition or evidence to consider and could not determine the merits of
the exception. Accordingly, the court found the trial court erred in granting the Exception of
Prescription in the absence of properly admitted evidence.
Summary Judgment
Motion for Summary Judgment: Causation
In Pullman v. Curahealth New Orleans, LLC, 2025 WL 3469649 (La. App. 4th Cir. 12/3/2025), the
Louisiana Fourth Circuit Court of Appeal sustained summary judgment, finding that the
“common knowledge’ exception to the general requirement of expert testimony to support the
causation element of a medical malpractice claim did not apply.
In this case, Vinson Pullman, Sr. underwent three surgeries, including one under his left
kneecap to drain infectious fluid. Following the surgeries, Mr. Pullman was transferred to
Curahealth for physical therapy and antibiotics. On the evening of the transfer, while a
registered nurse was lifting him to assist him from his bed to a wheelchair, the nurse dropped
him on the leg he had just had the surgery.
Allegedly, the day following the fall, Mr. Pullman had severe pain in his left knee. The petition
asserted that Mr. Pullman reinjured his left leg and knee as a result of the fall. Curahealth filed
a Motion for Summary Judgment on the basis that the plaintiff could not prove the nurse’s
conduct fell below the standard of care, and the plaintiff could not establish causation between
the alleged malpractice and Mr. Pullman’s damages. In response to the motion, the plaintiff
offered the affidavit of a nurse expert who opined that, knowing that Mr. Pullman was very
obese and extremely heavy, the nurse should have requested additional assistance in
transferring Mr. Pullman, and such failure was a cause of his fall and fell below the standard of
nursing care.
Curahealth objected to the nurse expert’s causation statement because, as a nurse, she was not
qualified to offer an opinion as to causation. The trial court granted summary judgment, finding
that there was an absence of anything with respect to medical causation that requires expert
opinion. On appeal, the plaintiff argued that expert testimony was not required to prove
causation as the facts of this case were within the common knowledge exception to the
requirement of an expert opinion. The Fifth Circuit did not agree.
The court said without expert testimony, a lay person could not ascertain whether the pain Mr.
Pullman experienced after the fall was the result of the surgery he had recently undergone, the
fall, or a mix of both. The court said Mr. Pullman had a complex medical history insofar as his
left knee had been recently operated upon and had been causing him pain and other problems,
such that the causation connection between the pain he experienced after the fall and the
alleged negligence of Curahealth was beyond the province of lay persons to assess. The Fifth
Circuit found the trial court correctly granted summary judgment because Curahealth pointed
to the absence of factual support for the causation element of the medical malpractice claim.
Motion in Limine and Motion for Summary Judgment
In Crawford v. Ordoyne, 410 So. 3d 994 (La. App. 1st Cir. 3/20/2025), the Louisiana First Circuit
Court of Appeal reversed the granting of a Motion in Limine that excluded the testimony of the
plaintiff’s expert and reversed the granting of defendant’s Motion for Summary Judgment
based on the lack of expert testimony to prove a deviation from the standard of care. This case
involved hernia surgery and the placement of tacks. The plaintiff’s expert opinion was that
there was a deviation from the standard of care because surgical tacks were placed too
laterally, causing injury to the nerves in this region.
The plaintiff’s expert had reviewed radiology reports of CT imaging, but not the actual imaging.
Defendants filed a Motion in Limine to exclude the testimony of the plaintiff’s expert because
the expert never looked at the imaging to see where the tacks were located. The trial court
granted the Motion in Limine and excluded the expert testimony. The trial court then granted
the defendant’s Motion for Summary Judgment since the plaintiff no longer had an expert
opinion to support her claim.
The First Circuit reversed. The First Circuit found the trial court abused its discretion in
excluding the plaintiff’s expert at this stage in the litigation. The court did not agree that the
plaintiff’s expert opinion should be disregarded and inadmissible due to his failure to personally
review the actual CT imaging since his opinion was based on his review of the medical records,
which included the CT reports at issue. The court further said excluding the plaintiff’s expert at
the summary judgment stage would improperly usurp the function of the factfinder at trial,
which is to weigh the evidence and expert opinions in order to determine whether the plaintiff
has met her burden of proof.
Lawsuit Pending Over 3 Years, More than Adequate Time for Discovery
In Smith v. Devenport, 412 So. 3d 1094 (La. App. 5th Cir. 4/2/2025), the Louisiana Fifth Circuit
Court of Appeal affirmed summary judgment in a case where the plaintiff failed to produce
expert testimony to prove a breach of the standard of care in a lawsuit pending over three
years. The court said the following:
“In the instant matter, defendants satisfied their burden by pointing out the absence of
proof for an essential element of Ms. Smith’s claim, specifically a lack of expert medical
evidence. Defendants also pointed out that the medical review panel unanimously
found that Dr. Devenport did not breach the applicable standard of care. The burden
then shifted to Ms. Smith to produce evidence sufficient to establish a genuine issue of
material fact. Ms. Smith complains that discovery was incomplete, but fails to explain
what additional discovery she required to obtain a medical expert.
In addition, at the time defendants filed their summary judgment motion, this lawsuit
had been pending for over three years. Ms. Smith had more than adequate time to
conduct discovery. Because Ms. Smith failed to produce expert medical testimony that
defendants breached the applicable standard of care, or any other admissible evidence
to satisfy the requirements of La. R.S. 9:2794, no genuine issue of material fact exists,
and defendants are entitled to judgment as a matter of law.”
Louisiana Legislature 2025 Highlights
Modified Comparative Fault
In 2025, the Louisiana legislature enacted legislation in House Bill 431 that changes Louisiana’s
pure comparative fault statute to modified comparative fault. Under pure comparative fault, a
plaintiff’s recovery is reduced by the plaintiff’s percentage of fault regardless of the amount of
fault attributed to the plaintiff. A plaintiff 99% at fault could still recover damages under pure
comparative fault.
In the 2025 legislative session, the Louisiana legislature revised Louisiana Code of Civil
Procedure Article 2323 to transition to a modified comparative fault system effective January 1,
2026.
According to the changes:
If a person suffers injury, death, or loss partly as the result of his own negligence and
partly as a result of the fault of another person or persons, the following shall apply: (a)
If the degree or percentage of negligence attributed to the person suffering injury,
death, or loss is equal to or greater than 51%, then the person suffering injury, death, or
loss shall not be entitled to recover damages. (b) If the degree or percentage of
negligence attributed to the person suffering injury, death, or loss is less than 51%, then
the amount of damages recoverable shall be reduced in proportion to the degree or
percentage of negligence attributed to the person suffering the injury, death, or loss.
The Act also provides that where the issue of comparative fault is submitted to the jury, the
jury shall be instructed on the effect of this Article. This new law will only apply to accidents
that occur on or after January 1, 2026. This new law bars recovery when the degree or
percentage of negligence attributed to the plaintiff is equal to or greater than 51%. If the
plaintiff’s fault is less than 51%, the damages will be reduced proportionally based on the
plaintiff’s percentage of fault.
Administrative Claims
The Louisiana legislature also amended several definitions in the Medical Malpractice Act that
would potentially expand coverage under the Act. Senate Bill 134 amended the definitions of
“health care,” “health care provider,” and “malpractice.” The amendment to the definition of
“health care” expands the definition to include: “administration, service, or care related to
policies and procedures and the administration thereof, staffing, custodial services by licensed
or certified staff.” In addition, the definition provides: “This includes all acts associated with the
medical treatment of an individual, whether directly related to clinical care or performed in an
administrative or managerial capacity necessary for the delivery of such care.” The amendment
to the definition of “health care provider” expands the definition to include: “corporation which
may provide any kind of health care whatsoever.”
The definition of “malpractice” was also amended to broaden the list of specific acts in the
definition by using the term “including but not limited to,” and to also specifically include
“staffing” in the definition. In addition, like the definition of “health care,” the definition of
“malpractice” also provides: “This includes all acts associated with the medical treatment of an
individual, whether directly related to clinical care or performed in an administrative or
managerial capacity necessary for the delivery of such care.” The amendments will become law
on August 1, 2025.
The primary purpose of the amendments was to include management companies that operate
nursing homes within the Act's definitions. However, the broad definitions will also likely
expand the protections of the Medical Malpractice Act to various administrative claims that
have been asserted against hospitals that some courts have found were outside the scope of
the Act.
Collateral Source
In the 2025 session, the Louisiana legislature again made changes to medical expenses
recoverable by a plaintiff. The current law limits medical expenses recoverable to the amount
actually paid to the health care provider by a health insurer, Medicare, or Medicaid, but also
provides that the court shall award 40% of the difference between the amount billed and the
amount actually paid by health insurers or Medicare.
The 2025 amendment removes the language about awarding 40% of the difference between
the amount billed and the amount actually paid by health insurers and Medicare, removing the
cost of procurement provision. Under the amendment, the claimant may only recover the
amount of medical expenses paid by a health insurer or Medicare to a health care provider. The
amendment also provides that in a trial to recover past medical expenses paid by health
insurers and Medicare under this section, the trier of fact shall be informed of the amounts
billed and amounts actually paid for medical expenses incurred by the claimant.
According to the amendment, recovery of past medical expenses other than under this section
shall include the amounts paid to a medical provider by or on behalf of the claimant, and the
amounts remaining owed to a medical provider, including medical expenses secured by a
contract or statutory privilege, lien, or guarantee. The Act also provides that where the
attorney for the claimant has entered into a pre-negotiated agreement with a medical provider
of the claimant where the medical provider has agreed to accept as full compensation and
amount less than the amount billed, the claimant’s recovery of medical expenses shall be
limited to the amount actually paid pursuant to the pre-negotiated agreement, and any
applicable cost sharing amounts paid or owed by the claimant.
The statute still provides that it does not apply to cases brought pursuant to Louisiana Revised
Statutes 40:1231.1, et seq (Medical Malpractice Act), and the amendment adds that it also does
not apply to any benefits received by a party through a policy of automobile liability insurance
that provides for medical payments coverage. The Act would apply to plaintiffs in GL claims. The
Act specifically provides that it shall have prospective application only and shall not apply to
causes of action filed prior to its effective date of January 1, 2026.