Opinion

Ware v. Irving Place Associates L P

Court
District Court, W.D. Louisiana
Filed
Sep 3, 2024
Cited by
0 cases
Authority
More cited than 31.4%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

CHRISTOPHER WARE, INDIVIDUALLY CIVIL ACTION NO. 22-5332

AND ON BEHALF OF THE ESTATE OF

GWENDOLYN WRIGHT

VERSUS JUDGE S. MAURICE HICKS, JR.

IRVING PLACE ASSOCIATES, LP MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court is a Motion to Dismiss filed by the defendant, Irving Place

Associates, LP (“Irving Place” or “the Defendant”) d/b/a Highland Place Rehab & Nursing

Center (“Highland”). See Record Document 16. Irving Place contends that the Louisiana

Emergency Health Powers Act (“LHEPA”) precludes liability for healthcare providers for

any alleged damages incurred during a public health emergency, and Plaintiff,

Christopher Ware (“Ware”), Individually and on behalf of the Estate of Gwendolyn

Wright’s (“Wright”) allegations do not rise to the level of gross negligence or willful

misconduct. See id. Ware opposes the motion. See Record Document 18. For the

reasons that follow, the Motion to Dismiss is GRANTED IN PART AND DENIED IN

PART.

BACKGROUND

On November 19, 2021, Wright, Ware’s mother, became a resident at Highland.

See Record Document 11 (First Amended Complaint) at 2. At or about 3:00 p.m. that day,

Wright was observed by staff at Highland as having an altered mental status and low

blood oxygen. Staff at Highland allegedly waited until almost 5:00 p.m. on November 20,

2021, to request care by calling an ambulance to take Wright to the emergency room.

See id. On or about November 22, 2021, Ware, on behalf of Wright, formally signed a

contract for service with Highland. See id. The contract purportedly required Highland to

provide Wright with “around-the-clock, one-on-one services.” Id. Ware alleges that Wright

was left unattended for several hours on November 29, 2021. See id. At about 9:18 a.m.

on November 29, 2021, Wright was discovered to have breathing difficulty, with

alternating periods of apnea, and tachypnea. See Record Document 11 at 2. Wright was

again taken to the emergency room. See id. Wright eventually died on December 9, 2021,

as Highland allegedly failed or refused to provide the appropriate standard of care while

Wright was at its facility. See id.

On September 24, 2022, Ware filed the instant wrongful death and survival action

due to the death of Wright. See Record Document 1. Ware asserts claims for Medical

Malpractice and Breach of Contract, seeking actual damages, prejudgment and post-

judgment interest, statutory damages and interest, attorney fees, court fees, and all other

relief to which Ware is entitled. See Record Document 11 at 4. Irving Place filed its Motion

to Dismiss on November 21, 2022. See Record Document 16.

LAW AND ANALYSIS

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for

pleadings that state a claim for relief and requires that a pleading contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” The standard

for the adequacy of complaints under Rule 8(a)(2) is now a “plausibility” standard found

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and its progeny. Under this

standard, “factual allegations must be enough to raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56. If a pleading only contains “labels

and conclusions” and “a formulaic recitation of the elements of a cause of action,” the

pleading does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation omitted).

Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a

party’s pleading for failure to state a claim upon which relief may be granted. In deciding

a Rule 12(b)(6) motion to dismiss, a court generally “may not go outside the pleadings.”

Colle v. Brazos Cty., Tex., 981 F.2d 237, 243 (5th Cir. 1993). Additionally, courts must

accept all allegations in a complaint as true. See Iqbal, 556 U.S. at 678. However, courts

do not have to accept legal conclusions as facts. See id. Courts considering a motion to

dismiss under Rule 12(b)(6) are only obligated to allow those complaints that are facially

plausible under the Iqbal and Twombly standard to survive such a motion. See id. at 678–

79. If the complaint does not meet this standard, it can be dismissed for failure to state a

claim upon which relief can be granted. See id.

Irving Place seeks dismissal of Ware’s first amended complaint (Record Document

11) under Rule 12(b)(6) because he fails to state a claim upon which relief can be granted.

Specifically, Irving Place submits that Ware’s claims should be dismissed because he

failed to allege gross negligence or willful misconduct as required pursuant to the LHEPA.

See Record Document 16-1 at 2. It states that Highland shows that all times it provided

Wright with appropriate care, within the applicable standard of care. See id. Irving Place

further states that Ware’s claims amount to nothing more than mere allegations of medical

malpractice, insufficient to state a cause of action per the LHEPA. See id. at 3. Moreover,

a review of the contract referred to by Ware in the first amended complaint shows that at

no time did Highland agree to provide one-on-one services as alleged. See id.

A. Louisiana Emergency Health Powers Act

On March 11, 2020, due to the COVID-19 pandemic, former Governor John Bel

Edwards declared a statewide public health emergency, triggering the application of

Section 771. See Baele v. University Healthcare System, L.C., No. 23-1558, 2024 WL

3105009 (E.D. La. June 24, 2024) (citing Proclamation Number 25 JBE 2020; Sebble ex

rel. Estate of Brown v. St. Luke's #2, LLC, 379 So.3d 615, 621 (La. 2023)). LA. R.S. §

29:771 provides that “[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.”

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 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.

See Baele, 2024 WL 3105009 at *3 (citing 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.” Id. (citing McQuirter v. State,

308 So.3d 285, 285 (La. 2021) (internal quotations and citations omitted)).

In Baele, the Court in the Eastern District of Louisiana found that the plaintiff failed

to allege facts that gave rise to gross negligence or willful conduct. See id. The Court

stated that none of the plaintiff’s allegations showed that the defendant “actively desired

or knew the results of their actions would result in harm,” and thus the plaintiff’s claims

sounded in medical malpractice under the typical standard, not gross negligence or willful

misconduct. Id. (citing Morrow v. La. Med. Mut. Ins. Co., 361 So.3d 986, 990 (La. 1st 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”.)).

Here, Ware asserts that the behaviors of the Defendant fall within one or more of

the descriptions of “gross negligence” because there was an “entire absence of care” for

an extended period despite a known medical situation that required immediate care,

which constitutes an “extreme departure from ordinary care.” Record Document 18 at 3.

Ware argues that at the time Defendant eventually called an ambulance, the damages

caused by its entire absence of care (i.e., gross negligence) was already done. See id.

Further, Ware states that he pleaded willful misconduct in that “[d]efendant acted willfully

or with gross negligence because it had actual knowledge of Ms. Wright’s need for

immediate care and intentionally failed or refused monitor and provide treatment to Ms.

Wright.” Id. at 3-4.

Accepting the facts alleged as true, none of these allegations show Defendants

“actively desired or knew the results of their actions would result in harm.” Baele, 2024

WL 3105009 at *3. Thus, the Court finds that Ware’s claims regarding any medical

malpractice or negligence are DISMISSED.

B. Breach of Contract

Irving Place argues that according to the language of the contract between Ware

and Highland, Highland merely agreed to “assist Resident with procuring” additional one-

on-one care. Record Document 16 at 8. Thus, there is no breach of contract and Ware

has not stated a claim under the contract for which relief can be granted. See id. Ware

argues that the Defendant neither provided the “around- the-clock, one-on-one services”

itself nor helped to seek the services from a third party. Record Document 18 at 4. Thus,

Ware states that the Defendant failed to fulfill its contractual obligation even under its own

interpretation of the contract. See id. at 5.

Under Louisiana law, the essential elements of a breach of contract claim are

defined as (1) the obligor's undertaking of an obligation to perform, (2) the obligor's failure

to perform the obligation (the breach), and (3) resulting damages to the obligee. See

Boudreaux v. Flagstar Bank FSB, 623 Fed. App'x 235, 237 (5th Cir. 2015) (internal

citations omitted).

Ware seeks leave to amend his complaint to assert that the Defendant neither

provided the “around-the-clock, one-on-one services for an additional charge” mentioned

in the contract, nor aided in the acquisition of such services. Id. at 4 n.1. The Fifth Circuit

has reiterated that, “a court ordinarily should not dismiss the complaint except after

affording every opportunity to the plaintiff to state a claim upon which relief might be

granted.” Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955). Thus, Ware’s request for leave

to amend its complaint is GRANTED to allow Ware to plead with more particularity any

additional allegations that may satisfy the requirements for breach of contract. See Fed.

R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). Thus,

for the above reasons, Defendants’ Motion to Dismiss is DENIED as to the Breach of

Contract claim at this time.

CONCLUSION

Accordingly, the Irving Place’s Motion to Dismiss (Record Document 16) is

GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the medical

malpractice and general negligence claims, and thus, such claims are DISMISSED WITH

PREJUDICE. The motion is DENIED as to the breach of contract claim. Further, Ware’s

request for leave to amend its complaint is GRANTED with respect to the breach of

contract claim.

An order consistent with the terms of the instant Memorandum Ruling shall issue

herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 3rd day of September,

2024.

“

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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