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According to a recent decision by the Louisiana Supreme Court, “NO!”
When COVID-19 shut down our society and put an overwhelming burden on the health care system in this State, Governor John Bel Edwards signed an executive order, along with numerous extensions, declaring a “public health emergency.”
The Legislature granted the power to the Governor to issue such a sweeping order in 2003, when our country was dealing with other types of threats, including terrorism and scares of potential biological warfare.
The Legislature passed the Louisiana Health Emergency Powers Act, the purpose of which was to grant the State government extra powers “because emergency health threats, including those caused by bioterrorism, may require the exercise of extraordinary government powers and functions, the state must have the ability to respond, rapidly and effectively, to potential or actual public health emergencies.” La. R.S. § 29:761.
The Act allowed for the Governor to make a “declaration” by “executive order . . . if he finds a public health emergency as defined in R.S. 29:762 has occurred or the threat thereof is imminent.” La. R.S. § 29:766(A).
While the Louisiana Health Emergency Powers Act does many things to help streamline government in the face of a public health emergency, some of its provisions change the legal standard of care that doctors and health care providers will be held to during the length of the declared emergency. Specifically, the law states:
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.
La. R.S. § 29:771(B)(2)(c)(i) (2023) (emphasis added).
Because of the unique nature of suing a health care provider, including the requirement of the Medical Review Panel process, this presented a unique question: if a doctor will only be found “civilly liable for causing the death of, or injury to” someone when their actions amounted to “gross negligence or willful misconduct,” should the doctors on the Medical Review Panel, reviewing the care of a defendant health care provider, consider whether a doctor’s care was grossly negligent?
In other words, instead of a panel questioning whether the doctor’s care fell below the ordinary standard of care for a healthcare provider, should the panelists be required to find that the care was not simply below the standard of care, but instead rose to gross negligence?
Until the High Court’s decision in Sebble v. St. Luke’s #2, 23-0483 (La. 10/20/23), this was a hotly contested issue for people seeking to sue their doctors or medical providers for injuries, when their injuries arose during COVID and the state of public health emergency enacted by the Governor.
A majority of the Court, explained that the “gross negligence” standard is a legal standard, and doctors on a medical review panel are only supposed to offer an opinion on medical standards of care. Thus, it is improper for the panel to make an ultimate finding of liability—whether the defendant-health care provider was grossly negligent.
In order to fully understand the importance of this case, and the likelihood of success for any claims that arise out of medical care from March 2020 to March 2022, here’s a brief description of medical malpractice litigation.
In Louisiana, doctors and medical health providers receive special protections against lawsuits alleging the provider caused injury to a patient. These protections include a $500,000 cap on the recovery of all damages, other than past and future medical expenses, as well as a special administrative process intended to reduce suits against doctors.
When a plaintiff is hit by a car, slips and falls in a store, or has a faulty product blow up in their hand, the injured person can file a lawsuit directly in district court and work to prove their case. However, when a plaintiff has the wrong leg cut off during surgery or a doctor ignores clear signs of a stroke leading to irreparable brain injuries, the injured person must first file an administrative complaint to form a Medical Review Panel to review the care and treatment they received.
A Medical Review Panel consists of three panelists who “shall be from the same class and specialty of practice of a health care provider as the defendant.” La. R.S. § 40:1231.8(C)(3)(j). This means that the panelist must be a doctor if the complaint is against a doctor.
More specifically, those doctor-panelists should be from the same “specialty” as the doctor who allegedly committed malpractice. Thus, a brain surgeon should not sit on the panel for a claim against a pediatrician. In order to determine what “good medicine” is for a particular medical specialty, it is only fair to have doctors who likewise practice medicine in that area of expertise opine on the standard of care.
Ultimately, the panelists are obligated to review all the evidence and medical records at issue and render an opinion, or opinions if there is disagreement, on whether the healthcare provider’s actions fell below the acceptable standard of care.
As can be expected, it is rare to find a doctor willing to swear under oath that another doctor with whom they know or worked breached the standard of care. Thus, most medical review panel decisions find no breach in the standard of care, even in egregious situations.
Regardless, the panel’s opinion is just that: an opinion. It is not the end of the process. The plaintiff may decide to dismiss their claim, or they may decide to forge ahead and file a lawsuit. If they do, the panelists may then be called by either party at trial to testify.
The vast majority of cases brought in our civil tort system are based on an allegation of negligence against a party that led to the injury of another party. Negligence is the failure to exercise reasonable care under the circumstances of the situation.
This is an objective standard, i.e., “would a reasonable person under the same or similar circumstances have been aware of the risk and have acted or failed to act in the way the defendant did here?”
By contrast, gross negligence is when there is a subjective awareness of a real risk of harm to another person that was ignored, and the defendant proceeded with conscious indifference to the rights, safety, or welfare of others. There is intentional wrongdoing or deliberate misconduct affecting the safety of others.
A key difference between ordinary negligence and gross negligence is the defendant’s state of mind.
There are only a few rare instances in Louisiana law where “gross negligence or willful misconduct” must be demonstrated. As such, punitive damage awards are rare and disfavored under Louisiana law.
“The issue presented in [Sebble vs. St. Luke’s #2 was] whether the gross negligence standard of La. R.S. § 29:771(B)(2)(c) is to be considered by a medical review panel when the medical treatment occurred during a declared state of public health emergency.” Sebble, p. 4.
The Court found that the Louisiana Health Emergency Powers Act is “an immunity statute,” which creates an affirmative defense to civil liability. Id. at pp. 13–14. Because the affirmative defense of immunity can only be raised in a “civil proceeding,” which the Medical Review Panel process is not, it was “procedurally improper to inject the affirmative defense” into the panel process. Id. Instead, the defense must be raised “when a subsequent civil proceeding” is filed in the district court. Id.
The majority looked closely at the language and purpose of several statutes, including the Louisiana Health Emergency Powers Act and the Louisiana Medical Malpractice Act. Notably, the Court explained the Medical Malpractice Act “provides qualified health care providers with a number of advantages in derogation of the general rights of tort victims.” Id. at p. 5.
This means the Act benefits doctors and health care providers over the rights normally provided to injured persons under ordinary tort laws in Louisiana.
Specifically, the Act requires that “all” claims against qualified providers must start with a claim filed with the medical review panel. The Court noted previous cases where it explained the purpose of the panel process is to “weed out frivolous claims” and “encourage settlement of suits before trial.” Id.
The idea is to ensure that doctors are not needlessly sued, which may drive healthcare providers out of the state and drive up the cost of insurance for the healthcare providers who remain.
Most importantly, the Court looked at the statute governing the medical review panels and found the language to be clear:
The panel shall have the sole duty to express its opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standard of care.
Id. at p. 6 (citing La. R.S. § 40:1231.8(G)). Notably, the “gross negligence” standard found in the Louisiana Health Emergency Powers Act is in a separate statute and does not specifically override the Medical Malpractice Act.
Ultimately, the Court found:
There is a distinction between a medical standard of care and a legal standard of care. The medical standard of care is a determination made by the medical review panel, medical experts, whose duty it is to apply their medical expertise and opine on whether the defendant’s healthcare provider failed to adhere to the appropriate medical standard.
By contrast, the [Louisiana Health Emergency Powers Act] sets forth a legal standard of care, which is a determination left to the trier of fact, laypersons, who consider all of the evidence, including the medical review panel’s opinion, in making a determination of whether the defendant health care provider’s conduct is grossly negligent.
In other words, 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.
Id. at pp. 8–9.
Doctors on a medical review panel, or a medical professional testifying as an expert at trial, are required to determine what is an acceptable standard for medical care in a particular case. Doctors are not lawyers or judges and do not necessarily know the law.
But they do know what medical treatment falls below what is expected, and that is what they are taught in medical school and during their residencies. Doctors are not taught what grossly negligent medicine is or what it means to act with conscious indifference to a patient’s health.
Thus, by leaving that question for trial, and not for the medical review panel, doctors can continue to practice medicine and pass judgment on what is or is not “good medicine” or good medical practices.
At the end of the day, if a plaintiff files suit in district court for a medical malpractice claim in Louisiana that arose out of a doctor’s actions during the public health emergency (March 2020 until March 2022), they are still going to have to convince a jury that the doctor’s actions were grossly negligent.
That part of the law has not changed. This will require attorneys for plaintiffs in medical malpractice cases to be extra cautious in vetting cases arising during this time period.
Even though the Supreme Court clarified a significantly unresolved issue of law, the Louisiana Health Emergency Powers Act’s grant of immunity to doctors during a public health emergency still presents hurdles and uncertainties. There remain many questions about the statute as it is written and how it will be enforced going forward.
The main problem is that the law is clearly overbroad. The Louisiana Health Emergency Powers Act grants blanket immunity to all “health care providers” from civil liability unless gross negligence or willful misconduct can be proven for any care they provide during a public health emergency. Thus, the statute’s plain language provides unnecessary civil immunity against doctors who were not the intended party for the statute’s protection.
The statute was intended to provide immunity to physicians who were directly impacted by the public health emergency. For example, ICU doctors who had to make decisions as to how to ration ventilators when the supply ran short. However, many doctors were not impacted like front-line responders.
For example, doctors who chose to voluntarily perform elective procedures, like hysterectomies and spinal surgeries, during the pandemic and who injured a patient now get to claim immunity from most suits. This is true even though their care was not directly impacted by the health emergency, like that of a COVID responder.
Clearly, the Louisiana Health Emergency Powers Act and the grant of immunity to doctors and healthcare providers during a real state of emergency are good public policy. One could imagine a biological attack or immediate outbreak of another infectious disease that may require doctors to make difficult medical decisions due to a lack of resources, safe operating facilities, lack of personal protective equipment, etc.
One need only look at the conditions under which many physicians provided care to patients in the aftermath of COVID-19 and Hurricane Katrina. It would be unfair to ask or demand medical providers to continue to work under those conditions without giving them more than just the benefit of the doubt, i.e., heightened immunity.
However, when doctors are not engaged in the immediate impact of the public health emergency, such as a plastic surgeon performing an elective procedure, should they get the same benefit of the doubt when they could have waited until after the emergency declaration was rescinded?
It is fair to say that by calling these powers “emergency powers,” the Legislature intended for a short-term exercise of the powers, such as after a hurricane or terrorist attack. However, when a public health emergency like the COVID-19 pandemic lasts for many years, our form of civil justice and recourse against negligent medical providers is harmed and significantly impacted. The citizens of Louisiana—potential patients—are the ones who will suffer the most.
Contact Ikerd Law Firm today to schedule a consultation and learn how we can assist you with your legal needs and similar cases.
