The opinion
KATHLEEN WELCH AND CARROLL NO. 21-CA-684
DEWAYNE WELCH
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
UNITED MEDICAL HEALTHWEST-NEW
ORLEANS, L.L.C. AND UNITED MEDICAL STATE OF LOUISIANA
HEALTHCARE INC.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 816-616, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
August 24, 2022
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
John J. Molaison, Jr., and June B. Darensburg
AFFIRMED; REMANDED
MEJ
JJM
JBD
COUNSEL FOR PLAINTIFF/APPELLANT,
KATHLEEN AND CARROLL WELCH
Jessica L. Ibert
Beth E. Abramson
David A. Abramson
COUNSEL FOR DEFENDANT/APPELLEE,
UNITED MEDICAL HEALTHWEST-NEW ORLEANS, LLC, AND UNITED
MEDICAL HEALTHCARE, INC.
Aldric C. Poirier, Jr.
A. Rebecca Wilmore
JOHNSON, J.
In this case arising out of a medical malpractice suit, Appellants, Kathleen
and Carroll Welch, seek review of the Twenty-Fourth Judicial District Court’s
September 22, 2021 final judgment sustaining Appellees’, United Medical
Healthwest-New Orleans, LLC and United Medical Healthcare, Inc., peremptory
exception of no cause of action and dismissing the case against Appellees without
prejudice. For the reasons that follow, we affirm the district court’s judgment and
remand the matter.
FACTS AND PROCEDURAL HISTORY
On December 31, 2019, Kathleen Welch was admitted to BridgePoint
Continuing Care Hospital, under the care of Dr. Michael Russo, for extended
rehabilitation following abdominal surgery. During her stay at BridgePoint, Mrs.
Welch developed multiple pressure ulcers. On April 16, 2020, Mrs. Welch was
transferred to United Medical Rehabilitation Hospital (“UMRH”), a long-term
rehabilitation facility owned and operated by Appellees’ United Medical
Healthwest-New Orleans, LLC and United Medical Healthcare, Inc. (hereinafter
referred to as “United Medical”). Dr. Kenneth Williams was Mrs. Welch’s treating
physician at UMRH until she was discharged on May 6, 2021. Appellants allege
that Mrs. Welch’s pressure ulcers progressed and worsened during her stay at
UMRH.
Appellants filed a Request for Formation of Medical Review Panel on
December 24, 2020, pursuant to the Louisiana Medical Malpractice Act
(“LMMA”), La. R.S. 40:1231.1 et seq., naming UMRH, Dr. Williams, BridgePoint
and Dr. Russo as defendant health care providers. The Patient’s Compensation
Fund (“PCF”) later notified Appellants that UMRH was not a qualified healthcare
provider as defined by the LMMA and the medical review panel would not review
its conduct. Appellants then filed a Petition for Damages on April 13, 2021 against
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United Medical alleging, the same claims of negligence made against the other
defendants in their Request for Formation of Medical Review Panel: failure to
provide the proper level of care; failure to properly assess and monitor Mrs.
Welch’s skin condition and establish a protocol to reduce the risk of her
developing pressure wounds; failure to perform standard pressure injury prevention
measures to prevent pressure ulcers; failure to provide timely, adequate wound
care once the pressure wounds developed; failure to properly train the staff
responsible for monitoring Mrs. Welch’s condition; failure to timely notify her
physicians and/or wound ostomy nurses once the skin breakdown occurred; and
any other acts of negligence or deviations from the standard of care evidenced in
the medical records. Appellants alleged that as a result of United Medical’s
negligence, Mrs. Welch developed large open pressure wounds on her back and
sacrum, which worsened over time and caused significant physical pain and
suffering, loss of love and affection, loss of companionship, loss of society and
consortium, and grief and mental anguish.
United Medical filed a Peremptory Exception of No Cause of Action in
response on June 1, 2021. In the Memorandum filed in support of its peremptory
exception, United Medical argued that, pursuant to the Louisiana Health
Emergency Powers Act (“LHEPA”), La. R.S. 29:770 et seq., a plaintiff who claims
that she incurred damages as a result of medical malpractice that occurred during a
state of public health emergency must prove that the standard of care she received
was grossly negligence, or the result of willful misconduct. United Medical avers
that La. R.S. 29:771(B)(2)(c) of the LHEPA granted them immunity and
Appellants failed to state a cause of action; their allegations did not include claims
of gross negligence; and the alleged negligent acts took place during the public
health emergency initially declared on March 12, 20201 by Governor John Bel
1
See Proclamation Number 25 JBE 2020.
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Edwards because of the COVID-19 epidemic, and extended at least through June
23, 20212.
Appellants filed an Opposition to the Exception, arguing that 1) La. R.S.
29:771(B)(2)(c) is a qualified tort immunity statute, and thus an affirmative
defense, with a burden of proof that United Medical did not meet; 2) applying that
tort immunity statute in the instant matter is against legislative intent and leads to
absurd consequences; 3) the statute is unconstitutional; and 4) this Court’s holding
in Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So. 3d 1280, writ
denied sub nom. Daigle v. Steck, 14-1408 (La. 10/3/14), 149 So. 3d 800 was
incorrectly decided and should not be applied to the instant matter.
The district court heard the exception on August 23, 2021. During the
hearing, the district court entered into evidence the memoranda submitted by
United Medical, a letter from PCF advising that United Medical was a qualified
healthcare provider as defined by the LMMA, and a copy of the Governor’s first
proclamation of the state of emergency, 25 JBE 2020, over Appellants’ objection.
At the end of the hearing, the district court granted the exception in favor of United
Medical, observed that it was “follow[ing] the law” in doing so, and dismissed
Appellants’ lawsuit without prejudice. This timely appeal followed.
ASSIGNMENTS OF ERROR
Appellants urge that the district court erred when it granted United
Medical’s peremptory exception of no cause of action and dismissed their lawsuit
with prejudice. They argue that LHEPA’s tort immunity provision should have
been pled as an affirmative defense, for which United Medical did not meet their
burden of proof. Appellants also argue that the application of the tort immunity
provision in this instance goes against legislative intent and, further, the statute is
unconstitutional. Finally, they argue that this Court incorrectly decided Lejuene,
2
See Proclamation Number 94 JBE 2021.
21-CA-684 3
supra, and mistakenly found that LHEPA modified the burden of proof applicable
to health care providers during a state of emergency, versus concluding that the
Act created an affirmative defense for health care providers under certain
circumstances.
United Medical prays that this Court affirm the district court’s judgment and
find that it correctly sustained Appellees’ exception. Even if all of the plaintiffs’
allegations are taken as true, United Medical argues that those allegations do not
rise to the level of gross negligence or willful misconduct. They also note that
Appellants, in their brief, acknowledge that they “did not assert allegations of gross
negligence in their Petition [. . . ] and [they] do not contend that the facts
surrounding the instant matter support allegations of gross negligence against
United Medical.” Because Appellants’ claims only accuse United Medical of
ordinary negligence, United Medical urges that LHEPA’s qualified tort immunity
statute applies and Appellants have failed to state a cause of action.
LAW AND DISCUSSION
In Industrial Companies, Inc. v. Durbin, 02–0665 (La. 1/28/03);
837 So.2d 1207, the Louisiana Supreme Court explained the process
by which a court should entertain an exception of no cause of action:
First, [the court] focus[es] on whether the law provides a
remedy against the particular defendant in [the] case. The function of
the exception of no cause of action is to question whether the law
extends a remedy against the defendant to anyone under the factual
allegations of the petition. The peremptory exception of no cause of
action is designed to test the legal sufficiency of the petition by
determining whether the particular plaintiff is afforded a remedy in
law based on the facts alleged in the pleading. The exception is triable
on the face of the petition and, for the purpose of determining the
issues raised by the exception, the well-pleaded facts in the petition
must be accepted as true. In reviewing a trial court's ruling sustaining
an exception of no cause of action, the appellate court ... should
conduct a de novo review because the exception raises a question of
law and the trial court's decision is based only on the sufficiency of
the petition. Simply stated, a petition should not be dismissed for
failure to state a cause of action unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of any claim which
would entitle him to relief. Every reasonable interpretation must be
accorded the language of the petition in favor of maintaining its
21-CA-684 4
sufficiency and affording the plaintiff the opportunity of presenting
evidence at trial.
Freeman v. State, 07-1555 (La. App. 4 Cir. 4/2/08); 982 So.2d 903, 906–07, writ
denied sub nom. Freeman v. State, Louisiana Dep't of Transp. & Dev., 08-930 (La.
6/20/08); 983 So.2d 1282 (citations omitted). “In deciding an exception of no
cause of action a court can consider only the petition, any amendments to the
petition, and any documents attached to the petition.” White v. New Orleans Ctr.
for Creative Arts, 19-213 (La. App. 4 Cir. 9/25/19); 281 So.3d 813, 819, writ
denied, 19-1725 (La. 12/20/19); 286 So.3d 428. “A court cannot consider
assertions of fact referred to by the various counsel in their briefs that are not pled
in the petition.” Id.
“In ruling on an exception of no cause of action, the court considers whether
the plaintiff belongs to a particular class for which the law grants a remedy for a
particular grievance. It is not appropriate to consider the plaintiff's ability to prevail
on the merits or whether the defendant has a valid defense.” Madisonville State
Bank v. Glick, 05-1372 (La. App. 3 Cir. 5/3/06); 930 So.2d 263, 265 (citations
omitted). “Tort immunity is an affirmative defense for which the one asserting the
defense has the burden of proof.” Aucoin v. Larpenter, 20-792 (La. App. 1 Cir.
4/16/21); 324 So.3d 626, 633, writ denied, 21-688 (La. 9/27/21); 324 So.3d 87.
“[A] claim is not automatically an affirmative defense simply because it falls
within an enumerated category; it is a fact-specific inquiry, dependent on the
circumstances of a case.” LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 398 (5th
Cir. 2014)
Under La. C.C.P. arts. 1003 and 1005, an affirmative defense should be pled
in a defendant's answer. See Mouton, supra. An affirmative defense raises a new
matter that, assuming the allegations in the petition to be true, constitutes a defense
to the action and will have the effect of defeating plaintiff's demand on its merits.
21-CA-684 5
Id. Rather, as an affirmative defense, the issue should be referred to the merits, and
a motion for summary judgment is, therefore, the proper procedure for addressing
it prior to trial. White, supra at 822. However, La. C.C.P. art. 1005 authorizes
courts to consider the peremptory exception as a properly pled affirmative defense
“[i]f a party has mistakenly designated an affirmative defense as a peremptory
exception or as an incidental demand, or a peremptory exception as an affirmative
defense, and if justice so requires.” See Mouton, supra at 563-64. “[T]he court, on
such terms as it may prescribe, shall treat the pleading as if there had been a proper
designation.” The party raising an affirmative defense has the burden of proving it
by a preponderance of the evidence. See Norton v. Norton, 21-212 (La. App. 5 Cir.
12/22/21); 335 So.3d 371, 386.
The Louisiana Health Emergency Powers Act (LHEPA) provides that 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).
We find that that the tort immunity provided by Section 29:771(B)(2)(c) of
LHEPA, “mistakenly” pled by Appellees as a peremptory exception of no cause of
action, is, in fact, an affirmative defense which the trial court considered properly
pled, pursuant to La. C.C.P. art. 1005. Our review of the record reveals shows that
United Medical met its burden and proved beyond a preponderance that the alleged
negligence committed by Appellees occurred during a state of public health
emergency but did not rise to the level of gross negligence, thus triggering the
immunity provided by LHEPA. Therefore, the trial court did not err in finding that
La. R.S. 29:771(B)(2)(c) applied in the instant case and the affirmative defense of
tort immunity provided by that statute defeated Appellants’ demand on its merits.
In Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So.3d 1280, writ
denied sub nom. Daigle v. Steck, 14-1408 (La. 10/3/14), 149 So.3d 800, this Court,
21-CA-684 6
we believe, correctly found that “La. R.S. 29:771 does not provide for a limited set
of health care providers, nor does it limit its application to only those medical
personnel rendering [direct] emergency assistance[.]” Again, we cannot look to
legislative intent in this instance where the law is “clear and unambiguous.” We
also cannot say that the blanket immunity LHEPA provides to health care
providers necessarily leads to an “absurd consequence” in this case, especially
considering the profound impact the COVID-19 pandemic had on our state and
society. The declared state of emergency Louisiana operated under in 2021 due
to COVID-19 caused “economic turmoil, a public health crisis, a substantial
burden on the healthcare system, and a significant number of infections and
deaths.” Hayes v. Univ. Health Shreveport, LLC, 21-1601 (La. 1/7/22); 332 So.3d
1163, 1166 n.2.
Last, the constitutionality of La. R.S. 29.771(B)(2)(c) is not properly before
this Court at this time. Once the constitutionality of a statute is questioned, the
attorney general must be notified by certified mail of the proceeding and, at his
discretion, shall be allowed to represent the interest of the state. In re Trahan, 03-
1002 (La. App. 5 Cir. 1/27/04); 866 So.2d 907, 910. Here, while Appellants raised
the issue in its opposition to Appellees’ peremptory exception and briefly argued
the unconstitutionality of the statute during the hearing on the exception, they did
not notify the attorney general of the challenge as required by La. R.S. 13:4448.
The district court also did not issue a ruling on the constitutionality of La. R.S.
29.771(B)(2)(c). Accordingly, we pretermit further discussion of this assignment
of error and remand the matter to allow Appellants the opportunity to properly
challenge, and the district court to rule on, the constitutionality of the tort
immunity statute. See id.
21-CA-684 7
DECREE
Based on the foregoing, we affirm the district court’s September 22, 2021
final judgment granting United Medical’s peremptory exception of no cause of
action and dismissing Appellants’ petition without prejudice, and remand the
matter for further proceedings consistent with this opinion.
AFFIRMED; REMANDED
21-CA-684 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON .
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 24, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-684
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
JESSICA L. IBERT (APPELLANT) A. REBECCA WILMORE (APPELLEE)
MAILED
ALDRIC C. POIRIER, JR. (APPELLEE) BETH E. ABRAMSON (APPELLANT)
STEPHEN M. PIZZO (APPELLEE) DAVID A. ABRAMSON (APPELLANT)
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