The opinion
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #014
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 21st day of March, 2025 are as follows:
BY Crain, J.:
2024-CC-00899 KATHLEEN WELCH AND CARROLL DEWAYNE WELCH VS.
UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C.
AND UNITED MEDICAL HEALTHCARE INC. (Parish of Jefferson)
AFFIRMED. SEE OPINION.
Justice Jeanette Theriot Knoll, retired, heard this case as Justice Pro
Tempore, sitting in the vacant seat for District 3 of the Louisiana Supreme
Court. She is now appearing as Justice ad hoc for Justice Cade R. Cole.
Hughes, J., dissents for reasons assigned by Griffin, J. and Knoll, J. and
assigns additional reasons.
McCallum, J., concurs in the result.
Griffin, J., dissents and assigns reasons.
Knoll, J., dissents and assigns reasons.
SUPREME COURT OF LOUISIANA
No. 2024-CC-00899
KATHLEEN WELCH AND CARROLL DEWAYNE WELCH
VS.
UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C. AND
UNITED MEDICAL HEALTHCARE INC.
On Supervisory Writ to the 24th Judicial District Court, Parish of Jefferson
CRAIN, J.*
In this medical malpractice action, we address the constitutionality of La. R.S.
29:771(B)(2)(c)(i) which provides a gross negligence standard for civil liability of
health care providers during a declared public health emergency. Finding the statute
rationally related to a legitimate government interest, it is constitutional.
FACTS AND PROCEDURAL HISTORY
In November 2019, Kathleen Welch was admitted to Tulane Medical Center
for acute pancreatitis and diabetic ketoacidosis. After an extended stay, she was
discharged and admitted to BridgePoint Healthcare LA, LLC d/b/a BridgePoint
Continuing Care Hospital for rehabilitation. While at BridgePoint, Welch developed
pressure ulcers. Following her discharge from BridgePoint, Welch was admitted to
United Medical Physical Rehabilitation Hospital where she continued to suffer
pressure ulcers. She was ultimately discharged home on May 6, 2020.
Welch filed a claim for injuries related to her pressure ulcers. She requested
a medical review panel pursuant to La. R.S. 40:1231.1, et seq, naming BridgePoint
and United Medical as defendants. Because United Medical was not a qualified
*
Justice Jeannette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the
vacant seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc
for Justice Cade R. Cole.
healthcare provider under La. R.S. 40:1231.8, Welch filed a lawsuit against United
Medical. She alleged that United Medical’s negligence caused pressure wounds on
her back and sacrum.
United Medical filed an exception of no cause of action, arguing the
application of La. R.S. 29:771(B)(2)(c)(i), which is part of the Louisiana Health
Emergency Powers Act (LHEPA), La. R.S. 29:760, et seq. That provision states:
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, Governor John Bel Edwards declared a public health
emergency in connection with the COVID-19 pandemic. Because Welch’s
treatment was during the declared public health emergency, United Medical argued
its alleged liability is subject to a gross negligence or willful misconduct standard.
Welch’s petition alleged only ordinary negligence, thus, United Medical moved for
dismissal. Welch filed an opposition to the peremptory exception of no cause of
action in which she made several arguments, including that the statute is
unconstitutional.
The trial court granted the exception, requiring application of the gross
negligence standard, but made no ruling on the provision’s constitutionality. Welch
appealed.
The appellate court found United Medical alleged ordinary negligence during
a declared public health emergency, not gross negligence, thus, the trial court
correctly applied La. R.S. 29:771(B)(2)(c)(i). Because the attorney general was not
notified, the appellate court found the constitutionality of La. R.S. 29:771(B)(2)(c)(i)
was not properly before it. The matter was remanded to allow a challenge and ruling
on constitutionality. Welch v. United Med. Healthwest-New Orleans, LLC, 21-684
(La. App. 5 Cir. 8/24/22), 348 So.3d 216.
2
On remand, Welch amended her petition to allege that La. R.S.
29:771(B)(2)(c)(i) is unconstitutional, and the attorney general was served. United
Medical filed exceptions of res judicata and no cause of action, arguing the appellate
court’s ruling defeated Welch’s demand on the merits, thus defeating her standing
to challenge the statute’s constitutionality. Welch opposed the exceptions pointing
out that the constitutional claim was specifically reserved and remanded for further
proceedings on that issue.
In addition to amending her petition, Welch filed a motion to declare La. R.S.
29:771(B)(2)(c)(i) unconstitutional. In her memorandum in support, Welch argued
the gross negligence provision is unconstitutional because it violates the due process
and adequate remedy provisions of the Louisiana Constitution. She also argued the
provision is overbroad and leads to absurd consequences, and that it is a prohibited
special law. The attorney general filed a memorandum supporting the provision’s
validity.
The trial court found La. R.S. 29:771(B)(2)(c)(i) constitutional, thus,
pretermitting the remaining exceptions. Welch filed a writ application seeking
supervisory review of the denial of her motion to declare the statute unconstitutional.
The appellate court upheld the constitutionality of La. R.S. 29:771(B)(2)(c)(i),
because it rationally relates to a legitimate state purpose of providing healthcare
during a public health emergency. Considering the profound impact of COVID-19,
it found application of the statute did not lead to absurd consequences. Finally, it
determined La. R.S. 29:771(B)(2)(c)(i) is not a prohibited special law because it
applies to all healthcare providers equally. For these reasons, the writ application
was denied.
We granted Welch’s writ application. Welch v. United Medical Healthwest-
New Orleans LLC, 24-0899 (La. 11/14/24), 395 So.3d 1164.
3
DISCUSSION
United Medical challenges Welch’s standing to seek constitutional review of
La. R.S. 29:771(B)(2)(c)(i). United Medical argued initially that Welch’s petition
failed to state a cause of action because La. R.S. 29:771(B)(2)(c)(i) requires gross
negligence or willful misconduct and the petition alleged only ordinary negligence.
Although Welch asserted that the statute is unconstitutional, the trial court granted
the exception of no cause of action and made no ruling on the constitutional issue.
The Fifth Circuit affirmed the ruling on the exception, then remanded for
determination of the constitutional issue. The right to challenge the validity of the
statute was expressly reserved.
We find the constitutional question properly before us. By challenging the
constitutionality of La. R.S. 29:771(B)(2)(c)(i), plaintiff essentially asserts her claim
is governed by the ordinary negligence standards set forth in Louisiana Revised
Statute 9:2794, not LHEPA. We must determine if the gross negligence standard of
LHEPA applies before plaintiff’s pleadings can be scrutinized for a cause of action.
Welch has standing to assert the constitutional challenge.
The constitutionality of a statute presents a question of law subject to de novo
review. State v. Spell, 21-0876 (La. 5/13/22), 339 So.3d 1125, 1130; State v. Webb,
13-1681 (La. 5/7/14), 144 So.3d 971, 975. Generally, statutes are presumed
constitutional, and the party challenging the validity of the statute bears the burden
of proving it is unconstitutional. Spell, 339 So.3d at 1130. Unless either
fundamental rights or privileges and immunities of a person are affected, a strong
presumption exists that the legislature has acted within its constitutional authority in
adopting legislation. Polk v. Edwards, 626 So.2d 1128, 1132 (La. 1993). This
presumption is especially forceful with statutes enacted to promote a public purpose.
Id.
4
The legislature can enact any law that the state constitution does not explicitly
prohibit. Id. Contrast the federal government, which has only those powers
expressly granted by the United States Constitution. Id.; U.S. Const. amend. X.
Stated differently, the legislature has all powers not expressly denied it by the state
or federal constitutions. Polk, 626 So.2d at 1132; In re American Waste & Pollution
Control Co., 588 So. 2d 367, 373 (La. 1991). Thus, a party challenging the
constitutionality of a statute must point to a particular provision of the constitution
that would restrict the legislature’s power to enact that statute. Moore v. RLCC
Technologies, Inc., 95-2621 (La. 2/28/96), 668 So.2d 1135, 1140. Doubt as to
legislation’s constitutionality is resolved in favor of its constitutionality. Polk, 626
So.2d at 1132.
Access to Courts
Welch argues La. R.S. 29:771(B)(2)(c)(i) violates Article I, § 22 of the
Louisiana Constitution, which restricts legislative power by guaranteeing that:
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.
This constitutional guarantee provides greater protection to fundamental interests.
Everett v. Goldman, 359 So.2d 1256, 1268 (La. 1978). Where access to judicial
processes is not essential to exercising a fundamental constitutional right, the
legislature can restrict or allocate such access, so long as the restriction or allocation
is not totally arbitrary. Bazley v. Tortorich, 397 So.2d 475, 485 (La. 1981). Thus,
when a claimant asserts a right other than a fundamental right, access to the courts
can be restricted if there is a rational basis for the restriction. Everett, 359 So.2d at
1268.
The right of malpractice victims to sue for damages is not a fundamental
constitutional right. Everett, 359 So.2d at 1268; Butler v. Flint Goodrich Hosp. of
5
Dillard University, 607 So.2d 517, 518 (La. 1992); Oliver v. Magnolia Clinic, 11-
2132 (La. 3/13/12), 85 So.3d 39, 44. Therefore, that right can be restricted if there
is a rational basis for the restriction. Because La. R.S. 29:771(B)(2)(c)(i) restricts
the rights of malpractice victims by requiring proof of gross negligence rather than
ordinary negligence, we consider whether a rational basis exists for the restriction.
La. R.S. 29:771(B)(2)(c)(i) is part of LHEPA. LHEPA was enacted in 2003
to allow the state to “do all that is reasonable and necessary to protect the health and
safety of its citizens” considering the potential for “new and emerging dangers,
including emergent and resurgent infectious diseases.” La. R.S. 29:761(A). LHEPA
recognizes that emergency health threats “may require the exercise of extraordinary
government powers and functions” and “the state must have the ability to respond,
rapidly and effectively, to potential or actual public health emergencies.” Id. Thus,
LHEPA was enacted to protect human life and control the spread of human disease.
La. R.S. 29:761(A)(2)(a-b). It was also enacted to ensure the government’s ability
to meet the people’s “immediate emergency needs” and to protect the availability of
services essential to “health, safety, and welfare” during an emergency. La. R.S.
29:761(A)(2)(c-d). When faced with “new and emerging dangers, including
emergent and resurgent infectious diseases and incidents of civilian mass casualties”
the government must be able to respond. La R.S. 29:761(A). Part of that response
is ensuring access to medical care. That is a legitimate state interest addressed by
LHEPA.
We next consider whether the challenged provision is rationally related to
ensuring access to healthcare during a public health emergency. There was a great
need for medical care in response to COVID-19. As COVID-19 infections surged
in wave-like patterns, relieving pressure on an overburdened health care system was
critical to maintaining a functioning healthcare system. COVID-19 restrictions
attempted to lower the number of infected individuals at a given time by reducing
6
the spread of the virus. Restrictions included executive orders limiting gatherings
and encouraging people to stay home. E.g., State of La., Exec. Dept., Proclamation
No. 209 JBE 2020, COVID-19 Public Health Emergency Phase 2 of Resilient
Louisiana (December 22, 2020).
The rational desire was that healthcare workers show up to provide care in
difficult and potentially life-threatening circumstances, despite the rest of the world
being encouraged to stay home. By continuing to work, healthcare workers exposed
themselves and their families to risks of an unknown virus. Should an act of alleged
malpractice occur under those unprecedented circumstances, healthcare workers
also risked potential liability. La. R.S. 29:771(B)(2)(c)(i) attempted to alleviate
pressure on an overburdened healthcare system by limiting healthcare workers’
liability exposure to gross negligence or willful misconduct. Because of the
extraordinary circumstances, healthcare workers were relieved of ordinary
negligence. That policy decision encouraged healthcare workers to work through
the emergency, which supported people’s access to medical services. Thus, the
provision is rationally related to the state’s interest in ensuring access to medical
care during a health emergency.
It has been argued that the statute should be applied only to COVID-19 related
healthcare. However, LHEPA is drawn to cover all public health emergencies, not
just COVID-19. Its aim is to ensure people’s access to essential services throughout
the emergency, including medical care. La. R.S. 29:761(A)(2)(c-d). For example,
if a person during a public health emergency is critically injured in a car accident,
that person needs access to care. Healthcare workers are needed to work through
the emergency for the system to remain open and functional for all patients. Here,
Welch’s claim relates to healthcare, regardless of whether it is COVID-related.
LHEPA’s liability provision rationally relates to its goal of protecting the availability
7
of medical services during an emergency. This remains true, even if the medical
services rendered did not relate to COVID-19.
La. Const. art. I, § 22 was not intended to limit the legislature’s ability to
restrict causes of action or to bar the legislature from creating areas of statutory
immunity from suit. Crier v. Whitecloud, 496 So.2d 305, 309-310 (La. 1986).
Rather, the access to courts clause ensures the judicial system is open for whatever
remedies are fashioned by the legislature. Progressive Sec. Ins. Co. v. Foster, 97-
2985 (La. 4/23/98), 711 So.2d 675, 690. We find La. R.S. 29:771(B)(2)(c)(i) does
not violate La. Const. art. I, § 22.
Due Process
Welch argues La. R.S. 29:771(B)(2)(c)(i) unconstitutionally divests her of a
vested property right to sue for damages, thus, violating due process. According to
Louisiana Constitution Article I, § 2: “No person shall be deprived of life, liberty, or
property, except by due process of law.” The Fourteenth Amendment of the U.S.
Constitution provides similarly.
Welch was treated by United Medical from April 16, 2020 to May 6, 2020.
LHEPA was enacted in 2003. The subject public health emergency was declared on
March 11, 2020. Therefore, Welch’s alleged injuries by United Medical occurred
after both the gross negligence standard was enacted into law and the subject public
health emergency was declared. When Welch acquired the right to sue United
Medical for her injuries, LHEPA already provided for the gross negligence standard,
and its application had already been triggered by the public health emergency
declaration. Neither the statute nor the declaration deprived her of any previously
vested property right.
Additionally, no right is absolutely protected, otherwise there would be no
need for the phrase “except by due process of law.” Bienvenue v. Defendant 1, 23-
1194 (La. 6/12/24), 386 So.3d 289, 290 (on rehearing). Rather, this constitutional
8
guarantee protects against arbitrary and unreasonable actions. Id.; Progressive
Security Insurance Co., 711 So.2d at 688; Babineaux v. Judiciary Comm’n, 341
So.2d 396, 400 (La. 1975). Where only social or economic regulations are involved,
restriction of a right need only bear a rational relationship to a legitimate government
interest to survive due process scrutiny. Bienvenue, 386 So.3d at 290; Med Express
Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La. 11/25/96),
684 So.2d 359, 365.
Welch’s right to sue for damages for medical malpractice involves an
economic interest and does not implicate a fundamental right. Everett, 359 So.2d at
1268; Butler, 607 So.2d at 518; Oliver, 85 So.3d at 44. The due process test is
whether the legislation bears a reasonable relation to the goal to be attained, and
whether it is adopted in the interest of the community as a whole. Bazley, 397 So.2d
at 483; Everett, 359 So.2d at 1268; Bienvenue, 386 So.3d at 291. As previously
stated, La. R.S. 29:771(B)(2)(c)(i) is rationally related to a legitimate government
interest. Its purpose is to ensure the availability of essential medical services.
Restricting civil liability to gross negligence reasonably promotes that government
aim. The liability provision is not arbitrary and has a rational relationship to public
safety and welfare. Bienvenue, 386 So.3d at 292; Francis v. Morial, 455 So.2d 1168,
1172-73 (La. 1984). The challenged provision does not violate due process.
Special Law
Welch also argues that La. R.S. 29:771(B)(2)(c)(i) violates the constitutional
prohibition against special laws. Louisiana Constitution Article 3, § 12(A)(7)
restricts legislative power by providing:
Except as otherwise provided in this constitution, the legislature shall
not pass a local or special law . . . granting to any private corporation,
association, or individual any special or exclusive right, privilege, or
immunity.
9
A special law confers special privileges or imposes peculiar disabilities or
burdensome conditions on the exercise of a right common to 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. 4/14/98),
712 So.2d 46, 52; Deer Enterprises, LLC v. Parish Counsil of Washington Parish,
10-0671 (La. 1/19/11), 56 So.3d 936, 943-44. A general law operates equally and
uniformly upon all of a designated class that has been founded upon a reasonable
classification. Kimball, 712 So.2d at 52. In other words, a law is special if it affects
only a certain number of persons within a legitimate class of persons. Deer
Enterprises, 56 So.3d at 944; Teachers’ Retirement System of Louisiana v. Vial, 317
So.2d 179, 183 (La. 1975).
The prohibition on special laws prevents abuse of legislative power exercised
for a special interest and prohibits exempting specific individuals or private
corporations from the operation of a general law. Polk, 626 So.2d at 1135. The
prohibition safeguards against the abuse of legislative power for special interests.
Deer Enterprises, 56 So.3d at 944; Teachers’ Retirement System of Louisiana, 317
So.2d at 183.
LHEPA is not a special interest law. It is public welfare legislation enacted
to protect the health and safety of all Louisiana citizens during an emergency, and
La. R.S. 29:771(B)(2)(c)(i) ensures the availability of healthcare by limiting
healthcare workers’ liability. The challenged provision applies to all healthcare
providers, not just a special few. “Healthcare providers” is a legitimate class of
persons. A law is special if it affects only specific persons within that class, not all
persons in the class. Deer Enterprises, 56 So.3d at 944; Teachers’ Retirement
System of Louisiana, 317 So.2d at 183. The subject law applies to all persons who
are healthcare providers. It does not violate the prohibition of special laws.
10
Overbroad
Welch argues the statute is unconstitutional because it is overbroad and leads
to absurd consequences. The overbreadth doctrine is unique to the First
Amendment, in particular free speech. Cartesian Company, Inc. v. Division of
Administrative Law Ethics Adjudicatory Board Panel A, 23-0398 (La. 10/20/23),
371 So.3d 1041, 1053; State v. Smith, 13-2318 (La. 1/28/14), 144 So.3d 867, 872;
State v. Schirmer, 93-2631 (La. 11/30/94), 646 So.2d 890, 900-901. The United
States Supreme Court has not recognized the overbreadth doctrine outside the
context of the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 107
S.Ct. 2095, 95 L.Ed.2d 697 (1987); Arizona v. U.S., 567 U.S. 387, 425, 132 S.Ct.
2492, 2515, 183 L.Ed.2d 351 (2012) (Scalia, J., concurring in part and dissenting in
part). Because no First Amendment issue is presented here, Welch’s overbreadth
challenge fails.
Finally, Welch argues that applying the statute can lead to hypothetical,
absurd consequences. Statutes are presumed valid, and their constitutionality should
be upheld whenever possible. AFSCME, Council #17 v. State ex rel. Dept. Of Health
& Hospitals, 01-0422 (La. 6/29/01), 789 So.2d 1263, 1269. To successfully
challenge a legislative act as facially unconstitutional, the challenger must establish
that no circumstance exists under which the act would be valid. Id. Only where a
statute is clearly repugnant to the constitution will it be stricken. Id.; Doherty v.
Calcasieu Parish School Bd., 93-3017 (La. 4/11/94), 634 So. 2d 1172, 1174. In the
context of a facial constitutional challenge, the fact that a law might operate
unconstitutionally under some conceivable circumstance does not render it wholly
invalid. Rather, if the court finds a single set of facts by which the statute is
constitutional, the facial challenge must fail. Webb, 144 So.3d at 982; see also State
v. Draughter, 13-0914 (La. 12/10/13), 130 So.3d 855, 866 (noting a person may not
11
challenge a statute on the ground that it may conceivably be applied
unconstitutionally to others in situations not before the court).
Under the facts presented, the statute is valid. In enacting LHEPA, the
legislature prioritized the health care system over tort recovery during a public health
emergency. The wisdom of that legislative goal is irrelevant to the legal principles
controlling our decision. We do not consider the wisdom of the legislature in
adopting a statute. Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291, 1297.
Rather, our role is to determine its applicability, legality and constitutionality. Id.
Because there is neither a fundamental right, nor any other constitutionally protected
right at issue here, the legislature was not required to narrowly tailor the restrictions
imposed by La. R.S. 29:771(B)(2)(c)(i). The statute need only rationally relate to a
legitimate state interest. It meets this standard.
CONCLUSION
The trial court’s denial of Welch’s motion to declare La. R.S.
29:771(B)(2)(c)(i) unconstitutional is affirmed.
AFFIRMED.
12
SUPREME COURT OF LOUISIANA
No. 2024-CC-00899
KATHLEEN WELCH AND CARROLL DEWAYNE WELCH
VS.
UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C. AND
UNITED MEDICAL HEALTHCARE INC.
On Supervisory Writ to the 24th Judicial District Court, Parish of Jefferson
Hughes, J., dissents for the reasons of Justice Griffin and Justice Knoll and
assigns additional reasons.
Absurd is the word.
SUPREME COURT OF LOUISIANA
No. 2024-CC-00899
KATHLEEN WELCH AND CARROLL DEWAYNE WELCH
VS.
UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C. AND
UNITED MEDICAL HEALTHCARE INC.
On Supervisory Writ to the 24th Judicial District Court, Parish of Jefferson
GRIFFIN, J., dissents and assigns reasons.
The Louisiana Health Emergency Powers Act provides, “[d]uring 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(c)(i). By its terms, this
provision applies to any provider in the state during any public health emergency,
without any connectivity to the cause or location of that emergency. For example,
the text of the provision would apply to injuries sustained at a doctor’s home in
Shreveport during a public health emergency in New Orleans.
While the plain language of a statute typically controls its interpretation,
where the plain language leads to absurd results (as it does in this case), the plain
language must give way for further search of the legislature’s intent. La. C.C. art. 9.
The legislature’s clear purpose with this provision was to provide for situations
where the alleged negligence was related to the emergency – such as a doctor
performing lifesaving medical treatment during a natural disaster or, in cases of
deadly diseases, where doctors are treating that disease.
Because the alleged malpractice in this matter is not related to the stated public
health emergency, I would find that the statute does not apply and avoid the
constitutional question.
SUPREME COURT OF LOUISIANA
No. 2024-CC-00899
KATHLEEN WELCH AND CARROLL DEWAYNE WELCH
VS.
UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C. AND
UNITED MEDICAL HEALTHCARE INC.
On Supervisory Writ to the 24th Judicial District Court, Parish of Jefferson
KNOLL, J., dissents and assigns reasons.
It is well-settled that courts should not pass on the constitutionality of
legislation unless it is essential to the decision of the case or controversy. Blanchard
v. State Through Parks & Recreation Comm’n, 96-0053 (La. 5/21/96), 673 So. 2d
1000, 1002. Because I believe this case can be disposed of on nonconstitutional
grounds in favor of Plaintiff, I dissent.
In our civilian tradition, legislation is the solemn expression of the legislative
will; thus, the interpretation of legislation is primarily the search for the legislative
intent. Borcik v. Crosby Tugs, L.L.C., 2016-1372, pp.4-5 (La. 5/3/17), 222 So. 3d
672, 675. When the wording of a statute is clear and free of ambiguity, the letter of
it shall not be disregarded under the pretext of pursuing its spirit. R.S. 1:4. See also
La. C.C. art. 9 (“When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the legislature.”). The starting
point for interpretation of any statute is the language of the statute itself. Borcik,
2016-1372, p.4, 222 So. 3d at 675.
Justice Jeannette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the
vacant seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc
for Justice Cade R. Cole.
The immunity provision of the Louisiana Health Emergency Powers Act
(LHEPA), La. R.S. 29:771(B)(2)(c)(i), states:
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. (Emphasis added.)
As explained in the majority opinion, the “public health emergency” at issue was
declared by Governor John Bel Edwards on March 11, 2020, in relation to the
COVID-19 pandemic. In my view, a plain language reading of this provision leads
to absurd consequences in this case, where the circumstances of Plaintiff’s injury did
not relate at all to the “public health emergency” referenced in the statute, and indeed
arose in 2019—well before the emergency was ever declared. That interpretation
deprives Plaintiff of any legal recourse for injuries sustained due to the alleged
negligent acts, even though those acts had no relation at all to the “public health
emergency.” This is a demonstrably absurd result.
When the application of a statute’s plain language leads to absurd
consequences, courts resort to secondary rules of statutory interpretation to discern
the meaning of the statute at issue. Borcik, 2016-1372, p.5, 222 So. 3d at 675. In
such cases, the statute “must be interpreted as having the meaning that best conforms
to the purpose of the law,” and the meaning “must be sought by examining the
context in which they occur and the text of the law as a whole.” Id. These secondary
principles include reading laws on the same subject matter in reference to each other.
La. C.C. art. 13. Further, because the immunity provision restricts the rights of tort
victims, it must be strictly construed “against limiting the tort claimants’ rights
against the wrongdoer.” 23-17, p. 7 (La. App. 5 Cir. 10/4/23), 374 So. 3d 166, 172.
See also, Dupuy v. NMC Operating Co., 2015-1754 (La. 3/15/16), 187 So. 3d 436,
439.
LHEPA was enacted with the stated purpose to give the government the ability
to “do all that is reasonable and necessary to protect the health and safety of its
citizens” during a “public health emergency.” La. R.S. 29:761(A). The overarching
purpose of LHEPA is thus to protect citizens during the emergency, not to provide
broad immunity to healthcare providers who are alleged of harming them. To me,
reading La. R.S. 29:761(A) in pari materia with La. R.S. 29:771(B)(2)(c)(i) clearly
demonstrates the immunity provision is intended to shield health care providers from
liability when their conduct is related to or impacted by a public health emergency—
which was not the case here. To be clear, there is no evidence in this record that
Plaintiff’s injuries or condition were affected by the COVID-19 pandemic, nor that
the care provided to her was at all impacted by the public health crisis. Indeed, the
physicians who treated Plaintiff never even asserted her treatment was affected by
the pandemic.
As a result, I believe Plaintiff should be permitted to move forward with her
case, having stated a proper claim for negligence. Because the injuries Plaintiff
alleges occurred in this case pertain to medical care having nothing to do with the
COVID-19 public health emergency and likewise not impacted by public health
emergency, she should not be required to plead “gross negligence or willful
misconduct.” I would therefore decline to rule on constitutionality, reverse the lower
courts, and remand for further proceedings. Accordingly, I respectfully dissent.