The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JANICE H. BAELE, ET AL. CIVIL ACTION NO. 23-CV-1558
VERSUS JUDGE DARREL JAMES PAPILLION
UNIVERSITY HEALTHCARE MAGISTRATE JUDGE DONNA
SYSTEM, L.C. D/B/A TULANE PHILLIPS CURRAULT
MEDICAL CENTER, ET AL.
ORDER AND REASONS
Before the Court are independent motions for summary judgment filed by Defendants Dr.
Stephen Mallernee (“Dr. Mallernee”) and University Healthcare System, L.C. d/b/a Tulane
Medical Center (“Tulane”) (collectively, “Defendants”). R. Docs. 32 and 34. Plaintiffs Janice H.
Baele, Nicholas Baele, Dana Baele, and Mark Baele (“Plaintiffs”) oppose both motions. R. Docs.
36 and 37. For the foregoing reasons, Defendants’ motions are GRANTED IN PART and
DENIED IN PART, and Plaintiffs are afforded an opportunity to amend their Petition.
BACKGROUND
This is a medical malpractice action arising from the death of Dr. Joseph Baele (“Dr.
Baele”) on September 24, 2021. R. Doc. 1-1. Plaintiffs allege Dr. Baele’s death was caused by a
breach in the applicable standard of care by Dr. Mallernee, the emergency medicine physician who
treated Dr. Baele and Tulane, the facility where Dr. Baele underwent medical treatment. Id. at ¶¶
1, 16. Following Dr. Baele’s death, Plaintiffs initiated proceedings with a medical review panel
pursuant to Louisiana law, and the panel ultimately found in favor of Defendants. Id. at ¶ 19. On
April 26, 2023, Plaintiffs filed suit against Defendants in Orleans Parish’s Civil District Court, and
Dr. Mallernee removed to this Court on May 10, 2023. R. Docs. 1 and 1-1. Thereafter, Dr.
Mallernee and Tulane filed separate, but nearly identical, motions for summary judgment. R.
Docs. 32 and 34.
LAW AND ANALYSIS
In support of their motions, Defendants point to the medical review panel’s determination
that Defendants did not breach their duty of care in treating Dr. Baele and argue that because
Plaintiffs do not have any admissible expert testimony to refute the panel’s determination, they
cannot survive summary judgment. Alternatively, Defendants argue that when Dr. Baele died,
state legislation protected healthcare providers from civil liability, except in the event of gross
negligence or willful misconduct. Defendants insist Plaintiffs’ claims must be dismissed because
the Petition does not allege facts sufficient to establish that Defendants’ actions constituted willful
misconduct or gross negligence and that Plaintiffs likewise do not have evidence that Defendants’
actions rose to this level.
In response, Plaintiffs insist Defendants’ motions are premature. Plaintiffs note that, at the
time of their oppositions,1 the Court had not yet held a Rule 16 scheduling conference and the
parties therefore did not have a scheduling order. Plaintiffs argue that while they may not yet have
the evidence needed to oppose a substantive motion for summary judgment, including medical
expert testimony and evidence of gross negligence or willful misconduct, they are not yet required
to offer such evidence.
I. Whether Defendants’ Motion for Summary Judgment Is Premature
As a threshold matter, the Court rejects Defendants’ invitation for summary judgment on
the basis that Plaintiffs do not have the evidence needed to oppose Defendants’ motions for
summary judgment. As Plaintiffs point out, Defendants filed their motions before the Court issued
1 Plaintiffs filed their opposition briefs on March 26, 2024, and the Court issued a scheduling order on May 13, 2024.
R. Docs. 36, 37, and 40.
a scheduling order. Plaintiffs’ lack of evidence therefore cannot be said to be dilatory or untimely,
and the Court is unwilling to entertain summary judgment merely because Defendants believe
Plaintiffs should have moved more expeditiously. Accordingly, to the extent Defendants ask the
Court to grant summary judgment based on Plaintiffs’ failure to produce evidence to substantively
defend against Defendants’ motions, Defendants’ motions are denied.
II. Whether Plaintiffs Fail to Plead and/or Prove the Proper Standard of Care
In a medical malpractice action, the plaintiff must show (1) the applicable standard of care;
(2) a violation or breach of that standard of care; and (3) a causal connection between the breach
and the resulting injury or damages. Jones v. Baton Rouge Gen. Med. Ctr.–Bluebonnet, 327 So.3d
512, 515 (La. 1 Cir. 2021); LA. R.S. § 9:2794(A). Relevant to Defendants’ motions, Louisiana
law provides for a heightened burden of proof against health care providers during a state public
health emergency. Whitehead v. Christus Health Cent. La., 344 So.3d 91, 94 (La. 3 Cir. 2022).
Specifically, Title 29, Louisiana Revised Statute, Section 771 provides: “[d]uring a state of public
health emergency, any health care providers shall not 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 (emphasis added).
In this case, Section 771 was in effect at the time of Dr. Baele’s death. On March 11, 2021,
due to the COVID-19 pandemic, former Governor John Bel Edwards declared a statewide public
health emergency, triggering the application of Section 771. Proclamation Number 25 JBE 2020;
see Sebble ex rel. Estate of Brown v. St. Luke’s #2, LLC, 379 So.3d 615, 621 (La. 2023). This
declaration was ultimately extended through September 29, 2021. Proclamation Number 18 JBE
2021. The events giving rise to Plaintiffs’ claims—which occurred on September 24, 2021—
occurred within the effective dates of the statewide public health emergency. Plaintiffs do not
appear to contest this and note that Section 711 immunity “may be available to . . . [D]efendants
as a defense to civil liability in this matter.” R. Doc. 37 at 6. They contend instead that “the
conclusive decision of whether defendants’ actions arose to the level of gross negligence cannot
be summarily determined with the outstanding discovery issues” that exist in this case. R. Doc.
37.
To the extent Defendants seek dismissal of Plaintiffs’ claims on summary judgment, the
Court agrees. As discussed above, discovery in this matter is ongoing and, therefore, summary
judgment is premature at this time. Defendants’ arguments relating to Section 711 are not limited
to Plaintiffs’ failure to offer evidence of gross negligence or willful neglect, however. Defendants
also argue that Plaintiffs have failed to properly plead gross negligence or willful neglect. The
Court therefore construes these portions of Defendants’ motions as motions to dismiss for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Applying the familiar and
often articulated Rule 12(b)(6) standard,2 the Court turns to the question of whether Plaintiffs have
failed to properly allege gross negligence or willful misconduct.
In defining the parameters of gross negligence and willful misconduct, the Louisiana
Supreme Court has explained:
Louisiana courts have frequently addressed the concept of gross negligence. Gross
negligence has been defined as the want of even slight care and diligence and the
want of that diligence which even careless men are accustomed to exercise. Gross
negligence has also been termed the entire absence of care and the utter disregard
of the dictates of prudence, amounting to complete neglect of the rights of others.
Additionally, gross negligence has been described as an extreme departure from
2 To survive a Rule 12(b)(6) motion to dismiss, the pleading must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007). A claim is plausible on its face “when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 663, 678, 129 S. Ct. 1937 (2009). The court must “accept as true the well-
pleaded factual allegations in the complaint.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (internal
quotations and citations omitted). Although legal conclusions may be asserted, “they must be supported by factual
allegations” to gain the assumption of truth. Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. A well-pleaded complaint may
proceed even if it strikes the court that actual proof of the asserted facts is improbable and that recovery is unlikely.
Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
ordinary care or the want of even scant care. There is often no clear distinction
between such [willful, wanton, or reckless] conduct and gross negligence, and the
two have tended to merge and take on the same meaning. Gross negligence,
therefore, has a well-defined legal meaning distinctly separate, and different, from
ordinary negligence.
Ambrose v. New Orleans Police Dep’t Ambulance Serv., 639 So.2d 216, 217-18 (La. 1994)
(internal quotations and citations). Gross negligence and willful misconduct “apply to conduct
which is still merely negligent, rather than actually intended to do harm, but which is so far from
a proper state of mind that it is treated in many respects as if harm was intended.” McQuirter v.
State, 308 So.3d 285, 285 (La. 2021) (internal quotations and citations omitted).
After careful review of the Petition, the Court finds Plaintiffs have failed to allege facts
giving rise to a claim for gross negligence or willful misconduct. Plaintiffs’ allegations are,
essentially, that Tulane staff, including Dr. Mallernee, failed to properly document Dr. Baele’s
symptoms and vitals and repeatedly failed to promptly treat Dr. Baele’s condition. Plaintiffs
allege, for example, the employee who triaged Dr. Bale omitted from her assessment Dr. Baele’s
history of smoking and tortuous aorta and family history of thoracic aortic aneurysm and
inaccurately documented Dr. Baele’s level of pain and his emergency severity index level.
Plaintiffs also allege delays for: (1) orders for an EKG, chest x-ray, CT angiogram, and labs; (2)
lab results; (3) a cardiothoracic surgery consult; and (4) surgery. Plaintiffs also allege Dr. Baele
was not prescribed any medication to control his high blood pressure and that this condition was
only checked four times during his visit to the emergency department. None of these allegations,
even construed in the light most favorable to Plaintiffs, however, show Defendants “actively
desired or knew the results of their actions would result in harm.” Whitehead, 344 So.3d at 96.
Absent this, Plaintiffs claims sound in medical malpractice under the typical standard, not gross
negligence or willful misconduct. See Morrow v. La. Med. Mut. Ins. Co., 361 So.3d 986, 990 (La.
1 Cir. 2023) (allegations of defendants’ “failure to properly assess, evaluate, diagnose, monitor,
manage, and treat” plaintiff did not constitute gross negligence or willful misconduct absent facts
alleging defendants “consciously desired the physical result of their acts or knew that the result
was substantially certain to follow from their conduct”). Accordingly, the Court finds Plaintiffs
have failed to state a claim for gross negligence or willful misconduct and grants Defendants’ Rule
12(b)(6) motions.
While the result of a successful Rule 12(b)(6) motion is typically dismissal, courts can
afford a plaintiff leave to amend the complaint “when justice so requires.” FED. R. CIV. P. 15(a)(2).
It does not appear that Plaintiffs drafted their Petition with Section 711 immunity in mind, and it
is therefore possible that Plaintiffs, given the opportunity to amend their Petition, could state a
claim for relief. Accordingly, the Court finds it is appropriate in this case to afford Plaintiffs the
opportunity to file an amended complaint should they wish to do so within twenty-one days from
the date of this Order and Reasons.
CONCLUSION
For the foregoing reasons, Defendants’ motions (R. Docs. 32 and 34) are GRANTED IN
PART and DENIED IN PART. To the extent Defendants seek summary judgment based on
Plaintiffs’ failure to produce expert witness evidence or evidence of willful misconduct or gross
negligence, Defendants’ motions are DENIED. To the extent Defendants’ motions seek dismissal
of Plaintiffs’ claims for failure to plead a claim for gross negligence or willful misconduct,
Defendants’ motions are GRANTED.
IT IS FURTHER ORDERED that, should Plaintiffs wish to file an amended complaint,
they must do so within twenty-one days from the date of this Order and Reasons. If Plaintiffs fail
to file an amended complaint, the Court will dismiss Plaintiffs claims with prejudice.
New Orleans, Louisiana, this 24th day of June 2024.
DARREL JAMES PAPILLION
UNITED STATES DISTRICT JUDGE