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The Louisiana Health Emergency Powers Act (“LHEPA”) provides that “During a state of public health emergency, no healthcare provider shall be civilly liable for causing ... injury to any person ... except in the event of gross negligence or willful misconduct.”[1] 

The LHEPA immunity applies: (1) in favor of any healthcare provider; (2) regarding any personal injury or property damage claim; which (3) arises during a public health emergency.[2] “The obvious purpose … is to allow healthcare providers to provide medical care and treatment during a time of public health crisis without concerns of liability for a patient’s poor outcome, unless the treatment decisions were grossly negligent, or the provider’s misconduct was willful.”[3] “The purpose of the statute is thus to alleviate the liability burden on healthcare providers during public health emergencies, such as the COVID-19 pandemic, which dangerously overburdened the healthcare system.”[4] 

On March 11, 2020, Governor Edwards declared a statewide public health emergency because of the COVID-19 pandemic. The emergency declaration triggered application of the LHEPA immunity provision as to healthcare providers who allegedly caused injuries from March 11, 2020 to March 16, 2022. 

Many of the alleged cases of medical malpractice occurring during that two-year period are still being litigated today. In the years since the emergency declaration ended, Louisiana courts have provided guidance on how the immunity provision will be applied. This article summarizes some of the most significant developments as to LHEPA immunity. 

The Immunity Cannot be Considered During the Medical Review Panel

In the early stages of the pandemic, medical malpractice lawyers debated whether the immunity and gross negligence provisions of the LHEPA should be applied during the medical review panel. Defendants argued that the medical review panel should be allowed to consider the modified standard of care under the LHEPA and should focus on whether the healthcare provider was grossly negligent. Plaintiffs argued that the immunity should only be raised in litigation after a post-panel lawsuit has been filed, and that the panel should assess the case under a normal standard of care.

In October 2023, the Supreme Court of Louisiana held (by a narrow 4-3 vote) that the gross negligence standard in the LHEPA shall not be considered or applied in medical review panel proceedings.[5] The majority reasoned that the medical review panel is limited to opining on the medical standard of care, but that the LHEPA sets forth a legal standard of care which should be determined by the jury during trial. In other words, the medical review panel should determine if there was a breach in the standard of care, and the jury should determine if the breach is severe enough to rise to the level of gross negligence.

The Immunity Applies Broadly to Injury Claims Against Healthcare Providers

Another question that has arisen is whether the LHEPA immunity applies to cases that fall outside the realm of medical malpractice. For instance, would the immunity apply to a general liability claim against a healthcare provider for damages incurred during the pandemic emergency period? Two appellate courts have answered “yes”, upholding broad application of the immunity.

In Lathon v. Leslie Lakes Retirement Ctr.,[6] plaintiff filed a premises liability lawsuit against a nursing home, alleging that she slipped and fell in Kool-Aid spilled by a nursing home employee. The nursing home sought dismissal of the case arguing that (1) it was statutorily immune from liability, except for acts of gross negligence, because the fall occurred during the emergency period; and (2) that plaintiff could not prove that spilling Kool-Aid on the floor constituted gross negligence. Plaintiff argued that the LHEPA immunity was inapplicable because she had not filed a medical malpractice claim, but instead, a general negligence claim. 

The Second Circuit Court of Appeal held that the LHEPA was applicable, explaining that “The statute's express extension of immunity to property damage claims demonstrates that the legislative purpose of the statute reaches far beyond medical malpractice.”[7] Because plaintiff had not put on evidence that the nursing home acted with gross negligence, the case was dismissed.

The Fourth Circuit Court of Appeal reached a similar conclusion in Williams v. Touro Infirmary.[8] The plaintiff, who was in the waiting room of a hospital’s oncology department, attempted to sit down in a chair, but alleged that the chair rolled away from him, causing him to fall and suffer injuries. The allegations constituted a general negligence claim rather than a medical malpractice claim, but the incident occurred during the pandemic emergency period. 

The hospital moved for dismissal on grounds that it was immune from liability except in cases of gross negligence, and that plaintiff could not prove that the hospital was grossly negligent. Plaintiff contended that his claim was one for premises liability, not medical malpractice, and thus it fell outside the provisions of the LHEPA. The Fourth Circuit disagreed, explaining that “a cause of action does not need to arise from a claim of medical malpractice in order for the LHEPA to be activated.”[9] Because plaintiff had not carried his burden of proving that the hospital was negligent as to the waiting room chair – much less grossly negligent – the case was dismissed. 

The court in Williams also made the important point that a plaintiff’s claim does not have to be related to the underlying public health emergency for immunity to attach to the healthcare provider. If the healthcare provider allegedly caused injury to a person during a declared state of public health emergency, then the provider is entitled to the immunity. “Reading the plain language of the statute, we find no requirement that the allegations of civil liability against a healthcare provider need be related to the declared state of public health emergency in order for the statute to be triggered.”[10] 

The decisions in Lathon and Williams provide that the LHEPA offers broad immunity protections to healthcare providers, even if the claims are not for medical malpractice, and even if the claims are not related to the COVID-19 pandemic. 

To Defeat the Immunity, Plaintiffs Must Present Expert Testimony on Gross Negligence

In a normal medical malpractice case, plaintiff has the burden of proving that the healthcare provider was negligent, and the applicable standard is one of reasonableness under the circumstances. In other words, did the provider act unreasonably? Additionally, in most cases, the plaintiff will be unable to carry their burden without expert medical testimony to establish the applicable standard of care and a breach of that standard.

But the LHEPA immunity only permits a healthcare provider to be held liable for gross negligence. “To amount to gross negligence, the conduct of the offender must not only show a lack of care, it must show an entire, utter, complete, or extreme lack of care.”[11] “Gross negligence has been described as an extreme departure from ordinary care or the want of even scant care.”[12] The question then arises, how does a plaintiff prove gross negligence in a medical malpractice case?

At least two appellate courts have determined that the plaintiff still needs expert medical testimony to carry their burden of proving that the healthcare provider was grossly negligent. In Lejeune v. Steck,[13] a patient filed a medical malpractice lawsuit against a surgeon arising out of a retained surgical sponge after a laminectomy. The surgery took place in the wake of Hurricane Katrina, during a declared state of public health emergency. 

The surgeon sought dismissal based on the LHEPA immunity, arguing that plaintiff did not have an expert medical witness to establish gross negligence. Plaintiff argued that the LHEPA did not apply because the surgery was not impacted by the hurricane and that she had a medical report from a surgeon opining that leaving a foreign body in a patient “was a negligent act below the standard of care.” 

The Fifth Circuit Court of Appeal sided with the surgeon and dismissed the case. The court first determined that the LHEPA was applicable and was not limited to medical personnel rendering assistance in the area of an emergency, such as Hurricane Katrina. The court then noted that the plaintiff’s expert had opined as to a breach of the standard of care but had not opined that the surgeon was grossly negligent. As such, plaintiff had not met her heightened burden under the LHEPA, and the case was dismissed. 

Similarly, in Shortridge v. West Calcasieu Cameron Hospital,[14] a patient sued a hospital, alleging that the hospital committed medical malpractice by failing to reposition her while she was in a coma, leading to a decubitus ulcer. The alleged malpractice occurred during the pandemic emergency declaration. 

The medical review panel unanimously found no malpractice on the part of the hospital, but plaintiff still filed suit. The hospital then sought dismissal, arguing that the patient had no expert medical testimony to carry her burden of proof. Plaintiff in opposition presented the expert affidavit of a physician who made a conclusory assertion that the hospital was grossly negligent.

The Third Circuit Court of Appeal found that the expert’s affidavit was insufficient and dismissed the case. The court explained that merely saying that a provider is “grossly negligent” is not enough, and that there must be a showing of specific facts supporting such an opinion. Instead, the court found that “The expert affidavits herein are speculative, conclusory and devoid of any underlying and supporting facts, and simply attempt to couch the actions of [the hospital] as grossly negligent.”[15]

The decisions in Lejeune and Shortridge demonstrate that plaintiffs have a very high burden of proof in pandemic immunity cases, and that it is not enough to have an expert provide conclusory and unsupported assertions of “gross negligence.” 

The Immunity Provision is Constitutional

Plaintiffs have attacked the LHEPA immunity as unfair, overbroad, and unconstitutional. They argue that healthcare providers already receive special protections through the Medical Malpractice Act, including the medical review panel system and the cap on damages. They argue that the immunity is overbroad by applying beyond medical malpractice cases, and by applying to medical malpractice cases that were not meaningfully impacted by the COVID-19 pandemic. They argue that the LHEPA immunity violates the Louisiana Constitution by depriving plaintiffs of due process and access to the courts.

Plaintiffs first attacked the LHEPA through the Legislature by introducing multiple bills which would have severely limited the scope of the immunity provided to healthcare providers during public health emergencies. Fortunately, each of the bills died in committee without making it to the floor for consideration. When plaintiffs’ legislative attack failed, they asked the courts to engage in judicial activism and make changes that the Legislature refused to make. 

Louisiana courts have so far resisted constitutional attacks brought by plaintiffs. In Welch v. United Medical Healthwest-New Orleans, LLC,[16] plaintiffs moved to have the LHEPA immunity provisions declared unconstitutional. The district court denied the motion, and the Fifth Circuit Court of Appeal likewise rejected plaintiffs’ constitutional challenge. 

The Fifth Circuit explained that the right of malpractice victims to sue for damages is not a fundamental constitutional right. As such, the challenged law need only have a rational relationship to a legitimate governmental interest to pass constitutional muster. The Fifth Circuit noted that “The purpose of the LHEPA is to protect the health and safety of the citizens of Louisiana by allowing the state to have ‘the ability to respond, rapidly and effectively, to potential or actual public health emergencies.’”[17] Further, with COVID-19 “the healthcare system was dangerously overburdened, affecting healthcare facilities and healthcare workers” and the statutory immunity helped “alleviate the liability burden on healthcare providers” who were needed to keep the system running during the pandemic.[18] The Court determined that the LHEPA immunity provision was rationally related to the legitimate state purpose of providing healthcare to the citizens of Louisiana during a public health emergency. 

As of the publication of this article, however, the Louisiana Supreme Court has agreed to take up the Welch case for additional argument, and to consider the lower court decisions as to the constitutionality of the LHEPA immunity provision. In defense of the LHEPA, various healthcare professional organizations have filed briefs with the Supreme Court emphasizing the importance of the immunity provision to those healthcare providers who continued to serve the community during the pandemic. 

As always, LAMMICO actively monitors legislation and caselaw affecting medical professional liability. In conjunction with its defense attorneys and other partners, LAMMICO will continue to advocate for laws – such as the LHEPA immunity provision – that protect policyholders and allow them to provide quality patient care.