348 So.3d 216
La. Ct. App.2022Background
- Kathleen Welch developed pressure ulcers while in extended rehab (admitted Dec. 31, 2019 to BridgePoint) and was transferred to United Medical Rehabilitation Hospital (UMRH) on April 16, 2020; she was discharged May 6, 2021.
- Petitioners filed a Request for Formation of a Medical Review Panel (Dec. 24, 2020) naming multiple providers; the PCF initially declined to treat UMRH as a qualified provider for the panel.
- Petition for Damages was filed April 13, 2021 against United Medical alleging ordinary negligence in pressure-ulcer prevention and wound care (no gross negligence alleged).
- United Medical filed a Peremptory Exception of No Cause of Action, arguing LHEPA (La. R.S. 29:771(B)(2)(c)) grants qualified immunity for acts during a public health emergency unless gross negligence or willful misconduct is shown.
- The district court sustained the exception and dismissed the suit without prejudice; the Fifth Circuit affirmed, treating the immunity as an affirmative defense properly considered under La. C.C.P. art. 1005, and remanded for further proceedings on the unresolved constitutional challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LHEPA immunity must be pled as an affirmative defense (or can be raised by peremptory exception/no cause of action) | Welch: Immunity is an affirmative defense; defendant bears burden and cannot win on exception | United Medical: Immunity defeats petition as a matter of law and supports exception | Court: Immunity is an affirmative defense but may be treated as such under art.1005; exception conversion was proper and court considered the defense |
| Whether the petition states a cause of action given LHEPA requires gross negligence/willful misconduct during an emergency | Welch: Petition alleges ordinary negligence only; statute should not bar ordinary negligence claims | United Medical: Allegations show ordinary negligence during a declared emergency; immunity bars ordinary negligence claims unless gross negligence shown | Court: Petition alleges only ordinary negligence; record showed acts occurred during the COVID-19 emergency and did not rise to gross negligence; immunity applied and defeated the claim |
| Whether LHEPA's immunity extends broadly to facilities/providers (legislative intent/absurdity) | Welch: Applying broad immunity yields absurd results and is contrary to intent | United Medical: Statute is clear; immunity applies to health-care providers during an emergency | Court: Statute is clear and unambiguous; Lejeune correctly held LHEPA applies broadly; no absurdity found |
| Constitutionality of La. R.S. 29:771(B)(2)(c) | Welch: Statute is unconstitutional | United Medical: did not prevail on constitutionality argument below | Court: Constitutionality not decided—plaintiff failed to notify AG as required; remand to allow proper constitutional challenge |
Key Cases Cited
- Industrial Companies, Inc. v. Durbin, 837 So.2d 1207 (La. 2003) (standard and scope for ruling on peremptory exception of no cause of action)
- Lejeune v. Steck, 138 So.3d 1280 (La. App. 5 Cir. 2014) (LHEPA immunity applies broadly to health-care providers during declared emergencies)
- Hayes v. Univ. Health Shreveport, LLC, 332 So.3d 1163 (La. 2022) (contextual acknowledgment of COVID-19 emergency impacts)
- Aucoin v. Larpenter, 324 So.3d 626 (La. App. 1 Cir. 2021) (tort immunity is an affirmative defense that bears the proponent's burden of proof)