The opinion
KATHLEEN WELCH AND CARROLL NO. 24-C-65
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 APPLICATION FOR SUPERVISORY REVIEW 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
June 13, 2024
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Timothy S. Marcel
WRIT DENIED
JGG
SJW
TSM
COUNSEL FOR PLAINTIFF/RELATOR,
KATHLEEN WELCH AND CARROLL DEWAYNE WELCH
David A. Abramson
Jessica L. Ibert
Beth E. Abramson
COUNSEL FOR DEFENDANT/RESPONDENT,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Elizabeth B. Murrill
Madeline S. Carbonette
COUNSEL FOR DEFENDANT/RESPONDENT,
UNITED MEDICAL HEALTHWEST-NEW ORLEANS, LLC AND UNITED
MEDICAL HEALTHCARE, INC.
Aldric C. Poirier, Jr.
A. Rebecca Wilmore
GRAVOIS, J.
Plaintiffs/relators, Kathleen Welch and Carroll Dewayne
Welch, seek this Court’s supervisory review of the denial of their
Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional. For
the reasons that follow, we deny this writ application.
FACTS AND PROCEDURAL BACKGROUND
In November 2019, Mrs. Welch was admitted to Tulane
Medical Center for treatment of acute pancreatitis and diabetic
ketoacidosis. Upon discharge, she was admitted to Bridgepoint
Healthcare LA, LLC, d/b/a Bridgepoint Continuing Care Hospital for
rehabilitative care. While at Bridgepoint, Mrs. Welch developed
pressure ulcers. On April 16, 2020, Mrs. Welch was discharged from
Bridgepoint and admitted to United Medical Physical Rehabilitation
Hospital, where she continued to suffer with pressure ulcers. Mrs.
Welch was discharged from United Medical on May 6, 2020.
On December 24, 2020, plaintiffs filed a request for a medical
review panel with the Louisiana Patient’s Compensation Fund
(“PCF”) against Bridgepoint, United Medical, and Mrs. Welch’s
treating physicians; however, the PCF notified plaintiffs that United
Medical was not a qualified healthcare provider. Thereafter, on April
13, 2021, plaintiffs filed a petition for damages, naming as defendants
United Medical Healthwest-New Orleans, LLC and United Medical
Healthcare, Inc. (hereinafter collectively “United Medical). Plaintiffs
alleged that as a result of United Medical’s negligence, Mrs. Welch
developed large, open pressure wounds to her back and sacrum and
suffered significant pain and suffering as a result.
In response, United Medical filed a peremptory exception of no
cause of action, asserting plaintiffs do not have a cause of action
against United Medical because of immunity provided under the
Louisiana Health Emergency Powers Act, La. R.S. 29:771, et seq.
Specifically, La. R.S. 29:771(B)(2)(c)(i) provides that during a state
of a public health emergency, a healthcare provider shall not be civilly
liable for causing injury to any person except in the event of gross
24-C-65 1
negligence or willful misconduct. United Medical argued that
plaintiffs failed to state a cause of action since the allegations of
negligence occurred during a state of public health emergency
pursuant to the COVID-19 pandemic and plaintiffs did not assert a
claim for gross negligence or willful misconduct. Plaintiffs opposed
the exception and argued, among other things, that La. R.S.
29:771(B)(2)(c)(i) is unconstitutional.
Following a hearing, the trial court granted United Medical’s
exception of no cause of action, dismissing plaintiffs’ petition and the
action in its entirety without prejudice. On appeal, this Court found
that the trial court did not err in finding that the immunity provided by
La. R.S. 29:771(B)(2)(c)(i) applied in this case and United Medical
properly proved beyond a preponderance of the evidence that the
alleged negligence occurred during a public health emergency, but did
not rise to the level of gross negligence. Additionally, this Court
found that the constitutionality of La. R.S. 29:771(B)(2)(c)(i) was not
before this Court at that time, since the Attorney General had not been
notified by certified mail of the proceeding, nor did the trial court
issue a ruling on the constitutionality of the statute. Accordingly, this
Court affirmed the trial court’s final judgment granting United
Medical’s peremptory exception of no cause of action and dismissing
United Medical without prejudice, but remanded the matter to allow
plaintiffs the opportunity to properly challenge the constitutionality of
La. R.S. 29:771(B)(2)(c)(i), and for the trial court to rule on the
constitutionality of La. R.S. 29:771(B)(2)(c)(i). Welch v. United Med.
Healthwest-New Orleans, L.L.C, 21-684 (La. App. 5 Cir. 8/24/22),
348 So.3d 216.
On remand, plaintiffs filed a first supplemental and amending
petition, adding as an additional claim that La. R.S. 29:771(B)(2)(c)(i)
is unconstitutional. Plaintiffs claimed that La. R.S. 29:771(B)(2)(c)(i)
is unconstitutional because it: (1) violates due process and the
adequate remedy provision of La. Const. Art. I, § 22; (2) is overbroad
since it applies to healthcare providers who may be rendering care
unrelated to the public health emergency; and (3) is a prohibited
special law. Subsequently, United Medical filed peremptory
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exceptions of no cause of action and res judicata. Plaintiffs filed a
Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional. The
Attorney General was properly notified and filed a memorandum in
response. United Medical responded as well, claiming that its
exceptions should be considered prior to plaintiffs’ motion. All three
matters came for hearing on November 13, 2023. The trial court
considered the Motion to Declare La. R.S. 29:771(B)(2)(c)(i)
Unconstitutional first. Following arguments, the trial court denied the
motion and pretermitted ruling on the exceptions. A written judgment
was signed on November 28, 2023 denying the Motion to Declare La.
R.S. 29:771(B)(2)(c)(i) Unconstitutional.
ANALYSIS
All statutory enactments are presumed constitutional. Carver v.
Louisiana Dep’t of Pub. Safety, 17-1340 (La. 1/30/18), 239 So.3d 226,
230. The burden of establishing unconstitutionality rests upon the
party who attacks the statute. State v. Lee, 22-01827 (La. 9/1/23), 370
So.3d 408, 412, reh’g denied, 22-01827 (La. 10/19/23). The burden
plaintiffs carry in challenging the constitutionality of a statute is a
heavy burden. It is not enough for a person challenging a statute to
show that its constitutionality is fairly debatable; it must be shown
clearly and convincingly that it was the constitutional aim to deny the
legislature the power to enact the statute. Carver, supra. The
standard of review in determining the constitutionality of a statute, a
question of law, is de novo. See State v. Eberhardt, 13-2306 (La.
7/1/14), 145 So.3d 377, 380.
In 2003, the legislature enacted the Louisiana Health
Emergency Powers Act (“LHEPA”), La. R.S. 29:760, et seq. 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
24-C-65 3
emergencies.” La. R.S. 29:761(A).1 Included in the LHEPA is La.
R.S. 29:771(B)(2)(c)(i), which provides:
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.
On March 11, 2020, Louisiana Governor John Bel Edwards
declared a public health emergency in Louisiana due to the COVID-
1
La. R.S. 29:761 provides:
A. Because the government must do all that is reasonable and necessary
to protect the health and safety of its citizens; because new and
emerging dangers, including emergent and resurgent infectious
diseases and incidents of civilian mass casualties, pose serious and
immediate threats; because a renewed focus on the prevention,
detection, management, and containment of public health
emergencies is essential; and 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. The purposes of this Chapter are:
(1) To require the development of a comprehensive plan that
operates within the framework of the State Emergency
Operations Plan and that provides for a coordinated, appropriate
response in the event of a public health emergency.
(2) To suspend administrative policies and procedures to the extent
the governor deems necessary within the parameters of the
Louisiana Emergency Assistance and Disaster Act of 1993, as
amended (R.S. 29:701 et seq.), and in the interest of providing
for the following priorities in the context of a public health
emergency:
(a) The protection of human life.
(b) Controlling the spread of human disease.
(c) Meeting the immediate emergency needs of the people of
Louisiana, specifically medical services, shelter, food, water,
and sanitation as outlined in Annex M of the State
Emergency Operations Plan.
(d) Restoring and continuing operations of facilities and services
essential to the health, safety, and welfare of the people of
Louisiana.
(e) Preserving evidence for law enforcement investigations and
prosecutions.
(3) To grant state and local officials the authority to provide care,
treatment, and vaccination to persons who are ill or who have
been exposed to contagious diseases, and to separate affected
individuals from the population at large to interrupt disease
transmission.
B. It is further declared to be the purpose of this Chapter and the policy
of the state of Louisiana that all health emergency powers of the state
be coordinated to the maximum extent possible with the comparable
functions of the federal government, other states and localities, and
private agencies of every type, to the end that the most effective
preparation and use may be made of the resources and facilities
available for dealing with any public health emergency or
bioterrorism event that may occur.
24-C-65 4
19 pandemic. The public health emergency was extended through
March 16, 2022.
Plaintiffs argue that La. R.S. 29:771(B)(2)(c)(i) is
unconstitutional since it violates the due process and adequate remedy
provisions of La. Const. Art. I, § 2 and La. Const. Art. I, § 22. They
contend that this statute deprives a victim of his or her cause of action,
a vested property right, without due process. Further, plaintiffs assert
that the “blanket immunity” provided for healthcare providers during
a public health emergency does not serve a compelling state interest,
leads to absurd results, and is not narrowly tailored to serve the
objective of protecting citizens during a public health emergency.
They contend there is no rational basis for providing immunity to
those who are not providing care related to the public health
emergency itself. Since Mrs. Welch’s care was not COVID-19-
related, plaintiffs claim that allowing United Medical to claim
immunity under the LHEPA denies them an adequate remedy by due
process of law since they are denied their day in court unless they are
victims of gross negligence.
La. Const. Art. I, § 22 provides:
All courts shall be open, and every person shall have an
adequate remedy by due process of law and justice,
administered without denial, partiality, or unreasonable
delay, for injury to him in his person, property,
reputation, or other rights.
La. Const. Art. I § 2 guarantees freedom from the deprivation
of life, liberty, or property without due process of law. This guarantee
is protection from arbitrary and unreasonable action. When the statute
in question does not affect fundamental rights, but rather is merely
economic or social regulation, it need only have a rational relationship
to a legitimate governmental interest. Med Express Ambulance
Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La.
11/25/96), 684 So.2d 359, 365. The right of malpractice victims to
sue for damages is not a fundamental constitutional right. Everett v.
Goldman, 359 So.2d 1256 (La. 1978); Oliver v. Magnolia Clinic, 11-
2132 (La. 3/13/12), 85 So.3d 39.
24-C-65 5
As stated earlier, the purpose of the LHEPA is to protect the
health and safety of the citizens of Louisiana during a public health
emergency. During a public health emergency, especially during the
COVID-19 pandemic, the need for medical care was great. As a
result, the healthcare system was dangerously overburdened, affecting
healthcare facilities and healthcare workers throughout the state. The
purpose of La. R.S. 29:771(B)(2)(c)(i) is to alleviate the liability
burden on healthcare providers during public health emergencies,
when such public health emergencies burden the healthcare system.
See Lathon v. Leslie Lakes Ret. Ctr., 54,479 (La. App. 2 Cir. 9/21/22),
348 So.3d 888, 892, writ denied, 22-01566 (La. 12/20/22), 352 So.3d
80. Plaintiffs allege United Medical provided negligent care to Mrs.
Welch from April 16, 2020 until May 6, 2020 (which was during the
early hectic and uncertain times of the COVID-19 pandemic), but that
care was unrelated to the public health emergency. However, though
Mrs. Welch may not have suffered from COVID-19, if the healthcare
system during that time period was overburdened, there may still have
been connection between her care and the COVID-19 pandemic.
Thus, upon review, we find La. R.S. 29:771(B)(2)(c)(i), as applied to
this case, is constitutional, as it is rationally related the legitimate state
purpose of providing healthcare to the citizens of Louisiana during a
public health emergency.
Additionally, in Crier v. Whitecloud, 496 So.2d 305 (La. 1986),
the Louisiana Supreme Court considered the history of the access to
court clause to conclude that in adopting La. Const. Art. I, § 22, the
Constitutional Convention did not intend to limit the legislature’s
ability to restrict causes of action or to bar the legislature from
creating various areas of statutory immunity from suit. Id. at 309-10.
Instead, this clause only ensures that the judicial system will be open
to provide remedies that the legislature has fashioned. Progressive
Sec. Ins. Co. v. Foster, 97-2985 (La. 4/23/98), 711 So.2d 675, 690.
Accordingly, plaintiffs’ argument that the statute denies them access
to the judicial system is without merit.
Plaintiffs also argue that the broad immunity that La. R.S.
29:771(B)(2)(c)(i) allows for leads to absurd and unconscionable
24-C-65 6
results; they assert that the public health emergency was in effect for
two years and divested victims of recourse for their injuries unrelated
to the public health emergency.
Previously, in Welch, this Court stated:
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.
Welch, 348 So.3d at 222.
Accordingly, plaintiffs’ arguments in this regard are without merit.
Finally, plaintiffs argue that the statute is an unconstitutionally
prohibited special law. Plaintiffs contend the statute is a special law
since it creates a “special class of tortfeasors” by providing blanket
immunity to every healthcare provider during a public health
emergency.
La. Const. Art. III, § 12 provides, in pertinent part:
(A) Prohibitions. Except as otherwise provided in this
constitution, the legislature shall not pass a local or
special law:
***
(7) … [G]ranting to any private corporation,
association, or individual any special or exclusive
right, privilege, or immunity.
A special law is one which operates upon and affects only a
fraction of the persons or a portion of the property encompassed by a
classification, granting privileges to some persons while denying them
to others. A special law is one that confers particular privileges, or
imposes peculiar disabilities or burdensome conditions in the exercise
of a common right upon a class of persons arbitrarily selected from
the general body of those who stand in precisely the same relation to
the subject of the law. Kimball v. Allstate Ins. Co., 97-2885 (La.
24-C-65 7
4/14/98), 712 So.2d 46, 53. A special law is “directed to secure some
private advantage or advancement for the benefit of private persons.”
Deer Enterprises, LLC v. Par. Council of Washington Par., 10-0671
(La. 1/19/11), 56 So.3d 936, 944.
In Lejeune, this Court held 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. 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. With La. R.S. 29:771(B)(2)(c)(i)
being applicable to all healthcare providers equally, plaintiffs have
failed to prove that La. R.S. 29:771(B)(2)(c)(i) is an unconstitutionally
prohibited special law.
CONCLUSION
For the foregoing reasons, we conclude the trial court properly
denied the Motion to Declare La. R.S. 29:771(B)(2)(c)(i)
Unconstitutional. This writ application is denied.
WRIT DENIED
24-C-65 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
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FIRST DEPUTY CLERK
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