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