by Mark Ackal
Introduction
The COVID-19 pandemic brought on events thought impossible. Stay-at-home orders, mask mandates, and other restrictions that seemed unimaginable became a part of everyday life for all Louisianians. Arguably, no other group was affected more than health care professionals, who saw a substantial increase in demand for their services coupled with a dramatic spike in hospitalizations.[1] With this increased pressure and workload came an increased chance of malpractice.[2] Given the particularly daunting battle medical professionals were fighting, Governor John Bel Edwards implemented emergency protocols which seemingly barred malpractice actions.[3]
Governor Edwards, in an effort to combat the pandemic, declared a public health emergency under the Louisiana Health Emergency Powers Act (LHEPA).[4] Under the LHEPA, when the governor declared a public health emergency, healthcare professionals were subject to significantly less malpractice scrutiny for as long as the emergency declaration remained in effect.[5] However, the Louisiana Medical Malpractice Act (LMMA) provides no guidance on how exactly this new standard should be implemented and how it interacted with the substance of the Louisiana Health Emergency Powers Act.[6] How and where the two laws intersect created consternation among malpractice litigants and legal scholars alike, and a split among the circuits emerged.[7] Consequently, the Louisiana Supreme Court resolved the issue in a recent decision.[8]
I. Background
The Louisiana legislature originally enacted the Louisiana Medical Malpractice Act in 1975.[9] Its primary purpose was to encourage settlement prior to trial and prevent frivolous litigation, enabling medical professionals to provide services free from fear of suit.[10] To that end, the LMMA provides that, prior to suit, a plaintiff must initiate a medical review panel consisting of three healthcare professionals and an attorney chairman.[11] The medical professionals on the panel analyze the facts presented to determine whether the defendant breached the appropriate standard of care.[12] The attorney chairman’s function is, in part, to “advise the panel relative to any legal question involved in the review proceeding.”[13] In other words, the attorney chairman must advise the other panel members concerning the relevant legal standard as it relates to the facts of the case.[14] Once the medical review panel has concluded its review, the LMMA specifically authorizes the panel to render one of the following conclusions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) When Paragraph (1) of this Subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.[15]
Importantly, the LMMA provides no language referencing public emergencies, despite the intersection with existing legislation pertaining to emergencies.[16] In 2003, the Louisiana legislature enacted a comprehensive revision to the Louisiana Emergency Assistance and Disaster Act of 1993.[17] The legislature intended this revision, entitled the Louisiana Health Emergency Powers Act (LHEPA), to ameliorate the effects of national or statewide emergencies.[18] With respect to medical professionals, in the event of a public health emergency, the Act modifies the malpractice standard for healthcare providers.[19] Specifically, Louisiana Revised § 29:771(B)(2)(c) provides: “[d]uring a state of public health emergency, any health care providers 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.”[20] On March 11, 2020, Governor John Bel Edwards declared a state of public emergency under the LHEPA, thereby making the modified malpractice standard applicable.[21]
In light of the Governor’s pronouncement, medical review panels evaluating claims that arose during the pandemic were uncertain whether to apply the typical negligence standard or the higher gross negligence standard.[22] As the attorney chairman’s responsibility is to advise the panel of the applicable legal standard, some defendants argued that the chairman must instruct the panels to apply the LHEPA gross negligence standard.[23] Panels that employed the LHEPA gross negligence standard adopted a two-part test.[24] First, the panel would evaluate the facts of the case under the normal, non-emergency negligence standard.[25] If the panel found there was no breach, then the inquiry would end.[26] If, however, the panel found that there was a breach, it moved to the second step to evaluate whether the breach arose to the level of gross negligence or willful misconduct.[27] This test, although not wholly unreasonable, was not based on legislative authority and became the subject of litigation, which would ultimately be resolved by the Louisiana Supreme Court.[28]
II. An Explanation of Estate of Brown v. St. Luke’s
In Sebble on Behalf of Estate of Brown v. St. Luke’s #2, LLC, the Louisiana Supreme Court addressed the question of how and where to apply the modified standard for medical malpractice.[29] The plaintiff, Sebble, brought suit on behalf of her grandmother’s estate alleging that her grandmother’s death was caused by substandard medical care performed by several defendants, all of whom provided different medical services.[30] However, Sebble’s grandmother died during the period of time when Louisiana was still in a public health emergency.[31] Pursuant to the mandates of the LMMA, Sebble sought review by a medical review panel.[32] Simultaneously, Sebble filed a petition for declaratory judgment in Orleans Civil District Court seeking a declaration that the gross negligence or willful misconduct standard contained within the LHEPA did not apply in medical review panels.[33]
Sebble argued that the pertinent provision in the LHEPA was an immunity statute and could therefore only be raised as an affirmative defense in court.[34] One defendant, Bridgepoint, argued that the medical review panel must apply the modified malpractice standard imposed by the LHEPA as it was the legal standard for medical malpractice at the time the claim arose.[35] The district court ruled in favor of Sebble and held that the medical review panel must not consider the heightened burden imposed by the LHEPA.[36] Bridgepoint timely appealed to the Louisiana Court of Appeal for the Fourth Circuit.[37] The appellate court affirmed the district court’s ruling and Bridgepoint then applied for a writ of certiorari to the Louisiana Supreme Court, which granted the writ.[38]
Justice Genovese, writing for the majority, began the analysis with recognition of the strict application of the LMMA.[39] That is, because the LMMA is a law which limits a tort victim’s right to recovery, the text of the law must be strictly and conservatively construed.[40] From there, the Court distinguished between a “medical standard of care” and a “legal standard of care.”[41] The Court held that it is the job of the medical review panel only to evaluate whether the defendant breached a medical standard of care and that application of the relevant legal standard is a task reserved for the judiciary.[42] The Court reasoned that a medical review panel is a panel of medical experts, not legal experts, and that therefore “a finding by a medical review panel that there was a breach in the standard of care is a ‘baseline’ determination; the degree of that breach is a judicial determination by the trier of fact.”[43] The Court further relied on the structure of the LMMA statute itself.
In distinguishing between a medical and legal standard of care, the Court relied on Louisiana Revised § 40:1238.8(C)(3)(j), which mandates that the healthcare professionals on the medical review panel must be of “the same class and specialty of practice” as the defendant provider.[44] The Court reasoned that this requirement means that the professionals on the panel are only there to evaluate whether the defendant breached the medical standard of care, and any evaluation of the legal standard is beyond the scope of the panel’s statutory authority.[45] The Court acknowledged that although it is the attorney chairman’s responsibility to advise the panel on the legal standard of care, the chairman may only do so within the confines of the statute. As the LMMA makes no mention of the LHEPA, the Court held that application of the LHEPA’s gross negligence or willful misconduct standard was outside of a medical review panel’s statutory authority.[47] Moreover, the two-step test urged by the defendant was, according to the Court, wholly without legislative authority.[48] The distinction between a medical and legal standard was the primary rationale of the majority’s opinion, but the Court considered other rationales in the plaintiff’s favor.[49]
The Court additionally determined that the “LHEPA is a statute that, by its clear terms, applies in civil proceedings seeking to impose civil liability.”[50] The Court opined that, because medical review panels serve a preliminary review function and are not empowered to impose civil liability, they fall outside the ambit of the LHEPA.[51] For these reasons, the Court determined that the LHEPA acts as an immunity statute that can be invoked only as an affirmative defense in a court proceeding, not as a standard by which a medical review panel evaluates a defendant’s conduct.[52] Thus, the Court affirmed the lower court’s decision, although not without dissent.[53]
Justice Weimer dissented, arguing that the majority’s position was textually incorrect and subversive of the LHEPA’s overarching policy goals.[54] Specifically, Justice Weimer suggests that the fact that the LMMA makes no mention of the LHEPA is of no consequence. Rather, the LHEPA should be read in pari materia with the LMMA.[56] This, according to the Weimer dissent, would harmonize the two laws.[57] Moreover, reading the statutes together would enable the attorney chairman to effectively perform his or her role on the medical review panel.[58] That is, the LMMA provides that the attorney chairman should advise the panel on the applicable legal standard, which, for cases arising during the COVID-19 public health emergency, is gross negligence or willful misconduct.[59] Most importantly, the distinction the majority makes between the medical standard of care and the legal standard of care is, according to the dissent, a complete fiction.[60]
Justice Weimer reasoned that a medical review panel evaluating whether a healthcare professional breached the standard of care is the exact same inquiry that a court would make in applying a typical negligence standard, and there is no material difference between the legal and medical standards.[61] Moreover, to say otherwise would severely handicap the role of the attorney chairman, whose function is to advise the medical review panel of the applicable legal standard.[62] Thus, Justice Weimer suggested that the two-step test, although not born of legislation, would make practical sense and should be adopted.[63] Justice Weimer likewise disagreed with the majority’s characterization of medical review panels as something other than an adjudicatory body able to impose civil liability.[64] Rather, Justice Weimer relied on the Louisiana Code of Civil Procedure, which defines civil actions as “demand[s] for the enforcement of [] legal right[s].”[65] Therefore, according to Justice Weimer, it is immaterial that a medical review panel cannot impose civil liability, and medical review panels fall within the purview of the LHEPA’s authority.[66]
Justice McCallum submitted a separate dissenting opinion, focusing on a slightly different textual analysis.[67] Specifically, Justice McCallum argued that Louisiana Revised § 40:1231.8(G) references the “appropriate” or “applicable” standard of care.[68] Joining Justice Weimer’s view that the LMMA and the LHEPA have to be read in pari materia, Justice McCallum opined that the applicable standard of care during the public health emergency was the modified standard provided by the LHEPA.[69] Therefore, according to Justice McCallum, a medical review panel evaluating a claim that arose during the public health emergency should apply a gross negligence or willful misconduct standard.[70]
III. The Narrow Effect of Estate of Brown
In Estate of Brown, the Court only resolved the question of what standard a medical review panel should apply, but policy issues remain as to the scope of the immunity granted by the LHEPA and its application in court proceedings.[71] Even in a medical malpractice case where the facts are totally divorced from the public health emergency, plaintiffs are still rendered without ability to seek redress as the gross negligence standard effectively serves as a blanket immunity.[72] Jurisprudential interpretations, rendered during the public emergency declared in the wake of Hurricane Katrina, indicate that the applicability of the LHEPA’s gross negligence standard in a court does not depend on whether the malpractice relates to the public health emergency.[73] If a court were to apply the Katrina era caselaw to COVID-19 era malpractice claims, it will not matter whether the claim is in any way related to the pandemic.[74] Rather, all that matters is whether the alleged tort occurred during a time when Louisiana was in a declared state of public emergency, in which case the gross negligence standard will apply in all civil proceedings.[75] Whether the legislature intended for the LHEPA to confer such a sweeping immunity is unclear, and while scholarly solutions remain sparse, they are not nonexistent.[76]
One legal scholar suggested that the LHEPA should be amended to apply the immunity only to cases “related to or part of” the public health emergency.[77] This approach may present separate issues. For instance, the legislature may have intended for the immunity to be broad to cover not only malpractice cases directly related to an ongoing emergency, but also any ancillary malpractice not directly related to or part of the emergency. Consider, for example, the facts of Estate of Brown wherein one defendant, a nursing home, was alleged to have neglected Sebble’s grandmother, causing her to develop extreme bed sores.[78] The parties in Estate of Brown never alleged that COVID-19 directly caused the bed sores.[79] Still, nursing homes were impacted by COVID-19 and the indirect, seemingly unrelated consequences of the emergency may have still played a role.[80]
While the virus itself may not have caused the bedsores, inadequate staffing, low morale, or increased illness among other patients, which were caused by COVID-19, may have ultimately set in motion the causal chain which ended with Brown’s bed sores.[81] It stands to reason that the legislature may have indeed intended for the LHEPA standard to apply in this circumstance, regardless of whether it relates to the public health emergency. The unforeseeable and disastrous nature of an emergency arguably requires that the law provide for broad immunity, so that critical and immediate responses may be effectuated. Thus, perhaps the legislature intended for the LHEPA to enable healthcare professionals to continue providing care in the midst of an unprecedented pandemic free from fear of suit. Regardless of the actual legislative intent or scholarly opinion, the text of the LHEPA is written broadly.[82] Unless the Louisiana Legislature changes the language, healthcare providers are still entitled to the blanket immunity for claims arising during the public health emergency, regardless of whether COVID-19 played any role in the malpractice.[83]
Conclusion
Governmental and legal responses to the COVID-19 pandemic continue to be a source of litigation and, unsurprisingly, medical malpractice is no exception. The unprecedented societal and economic impacts of the crisis created new and uncertain challenges that were difficult to navigate. Ultimately, the policy concerns implicated by medical malpractice carried the day, and the Court determined that the balance struck by the LMMA would remain intact, at least at the medical review panel stage. The balance between a tort victim’s right to recover with a healthcare professional’s ability to perform services free from fear of frivolous lawsuits is indeed a delicate one, and the Louisiana Supreme Court has determined that COVID-19’s impact on this balance is of no consequence to medical review panels. However, ongoing issues remain as to the scope of the LHEPA’s malpractice immunity. Just as immunizations for COVID-19 had a lasting effect on the public, so too did the legal immunizations granted to healthcare providers.
[1] Trends in United States COVID-19 Hospitalizations, Deaths, Emergency Department (ED) Visits, and Test Positivity by Geographic Area, Ctr. for Disease Control, https://covid.cdc.gov/covid-data-tracker/#trends_weeklyhospitaladmissions_select_00 [https://perma.cc/J2SX-J9VN].
[2] Tara Bannow, Medical malpractice lawsuits, delayed by the pandemic, are hitting hospitals harder than expected, STAT News (Dec. 5, 2022), https://www.statnews.com/2022/12/05/medical-malpractice-hospitals-covid-pandemic-insurance/ [https://perma.cc/VZU9-TUBB].
[3] Public Health Emergency – Covid-19, Proclamation Number 25 JBE 2020, State of La., Dep’t of the Exec., available at: https://gov.louisiana.gov/assets/ExecutiveOrders/25-JBE-2020-COVID-19.pdf [https://perma.cc/82UU-C2M4]. See La. Rev. Stat. § 29:771(B)(2)(c) (2024).
[4] Id.
[5] La. Rev. Stat. § 29:771(B)(2)(c) (“During a state of public health emergency, no health care provider shall 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.”).
[6] Id. § 40:1231.1 et seq.
[7] See Baylee M. Smith, Putting the LHEPA Under the Knife: The Implications of the Gross Negligence Standard of Care for Medical Malpractice Actions During COVID-19’s Public Health Emergency, 83 La. L. Rev. 1136, 1146–52 (2023) (describing medical malpractice cases arising during declared public health emergencies).
[8] Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, No. 2023-C-00483, 2023 WL 6937352 (La. Oct. 20, 2023).
[9] Allison B. Lewis, Unreasonable and Imperfect: Constitutionality of the Louisiana Medical Malpractice Act’s Limit on Recovery, 69 La. L. Rev. 417, 419 (2009).
[10] Russ M. Herman, Medical Malpractice Act § 4:293, in 1 Louisiana Practice Series § 4:293 (2023) (citing Beaucoudray v. Walsh, 9 So. 3d 916 (La. Ct. App. 4th Cir. 2009)).
[11] La. Rev. Stat. § 40:1231.8(C).
[12] Id. § 40:1231.8(G).
[13] Id. § 40:1231.8(C)(5)(b).
[14] Id. Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, No. 2023-C-00483, 2023 WL 6937352 (La. Oct. 20, 2023) (“[T]he attorney chairman has the responsibility to advise the panel members concerning matters of law.”).
[15] La. Rev. Stat. § 40:1231.8(G).
[16] See id. § 40:1231.1 et seq.
[17] Id. § 29:760 et seq.
[18] L. Christine Tillman, Emergency Powers Act: What Would the Louisiana Supreme Court Say?, 49 S. U. L. Rev. 303, 308 (2022).
[19] La. Rev. Stat. § (B)(2)(c).
[20] Id. (emphasis added).
[21] See Tillman, supra note 18, at 308.
[22] See generally Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, No. 2023-C-00483, 2023 WL 6937352 (La. Oct. 20, 2023).
[23] Id.
[24] Id. at *6.
[25] Id.
[26] Id.
[27] Id.
[28] See generally id.
[29] See generally id.
[30] Id. at *1.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id. at *2.
[36] Id.
[37] Id.
[38] Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, 358 So. 3d 1030 (La. Ct. App. 4th Cir. 2023); Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, 362 So. 3d 413 (La. 2023).
[39] Sebble ex rel. Est. of Brown v. St. Luke’s #2, LLC, No. 2023-C-00483, 2023 WL 6937352, at *4 (La. Oct. 20, 2023).
[40] Id.
[41] Id. at *5.
[42] Id.
[43] Id.
[44] Id. at *6; La. Rev. Stat. § 40:1238.8(C)(3)(j) (2024).
[45] Sebble, 2023 WL 6937352, at *6.
[46] Id.
[47] Id.
[48] Id.
[49] Id. at *6–7.
[50] Id. at *6 (internal quotations omitted).
[51] Id. at *6–7.
[52] Id. at *7.
[53] Id. at *8.
[54] Id. at *8–12.
[55] Id. at *9–10.
[56] Id. at *9.
[57] Id. at *9–10.
[58] Id. at *10.
[59] Id.
[60] Id. (“While the majority distinguishes between the ‘medical standard of care’ and the ‘legal standard of care,’ these concepts are essentially inseparable in medical review panel proceedings.”).
[61] Id. at *10.
[62] Id.
[63] Id.
[64] Id. at *11.
[65] Id. (citing La. Code Civ. Proc. art. 421).
[66] Id.
[67] Id. at *12–17.
[68] Id. at *12.
[69] Id.
[70] Id.
[71] See id. at *4–8.
[72] See Smith, supra note 7, at 1154 (“The gross negligence standard creates an impossibly high burden of proof that can deter plaintiffs from bringing their claims, especially if the claims are completely unrelated to the public health emergency.”).
[73] Lejeune v. Steck, 138 So. 3d 1280, 1283 (La. Ct. App. 5th Cir. 2014) ([The LHEPA] does not . . . limit its application to only those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.”).
[74] See id.
[75] See id. Sebble, 2023 WL 6937352, at *8 (“The affirmative defense may be raised by a health care provider in its answer at the conclusion of the medical review panel process if and when a subsequent civil proceeding ensues.”).
[76] See Smith, supra note 7, at 1159.
[77] Id.
[78] Sebble, 2023 WL 6937352, at *1.
[79] See generally Id.
[80] COVID-19 IN NURSING HOMES, United States Government Accountability Office (Dec. 2022), https://www.gao.gov/assets/gao-23-104291.pdf (detailing significant impacts on nursing homes caused by COVID-19).
[81] Id.
[82] See La. Rev. Stat. § 29:771(B)(2)(c).
[83] Sebble, 2023 WL 6937352, at *8.