The opinion
Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 56,074-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
JULIA ELLIS, INDIVIDUALLY Plaintiff-Appellant
AND ON BEHALF OF GLINDALE
RANDOLPH (D)
versus
MINH MAI, M.D. Defendant-Appellee
*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2022-2714
Honorable Jefferson Bryan Joyce, Judge
*****
MCGLYNN, GLISSON & MOUTON Counsel for Appellant
By: Eric Edward Helm
FRILOT, L.L.C. Counsel for Appellee
By: Halley S. Carter
*****
Before ROBINSON, HUNTER, and MARCOTTE, JJ.
ROBINSON, J.
Julia Ellis appeals a judgment granting an exception of no cause of
action and dismissing her medical malpractice lawsuit against Dr. Minh Mai
with prejudice.
For the following reasons, we affirm the judgment granting the
exception of no cause of action but remand this matter to the trial court to
allow Ellis the opportunity to amend her petition to state a cause of action.
FACTS1
On June 7, 2021, Glindale Randolph was admitted to St. Francis
Medical Center for surgery on an abscess located on his right thigh.
Randolph, who was 46 years old, had a history of diabetes and hypertension.
Following surgery, compression devices were ordered for his lower
legs to prevent deep vein thrombosis. Randolph was in stable condition on
room air. However, on June 8, he required oxygen by nasal cannula at
2L/minute.
Randolph was examined by Dr. Minh Mai, a hospital medicine
physician, on June 8. A tachycardic heart rate of 114 beats per minute and
decreased oxygen saturation were noted. Dr. Mai ordered Lasix, nebulizer
breathing treatments, and a chest x-ray for dyspnea.
On the night of June 9, Randolph had several hours of acute hypoxia
with his oxygen levels falling to as low as 50%. He was placed on a
nonrebreather oxygen mask. Dr. Ezikiel, another hospital medicine
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The background concerning Randolph’s treatment comes from the allegations in
the petition.
physician, responded to pages from the nurses and ordered Randolph’s
arterial blood gases to be measured.
On June 10, Randolph required a Venturi mask providing 12-
15L/minute of oxygen in order to maintain oxygen levels that were no
higher than 92%. He also remained tachycardic. A third hospital medicine
physician, Dr. David Lai, noted hypoxia of unknown origin and ordered a
CT scan of the chest. The scan was interpreted as showing pneumonia. Dr.
Lai ordered a high flow nasal canula at 35L/minute, antibiotics, a respiratory
panel, and cough syrup. The respiratory panel was negative for all viruses.
A pulmonary specialist would be consulted if there was no improvement by
the next morning.
At 11:00 p.m. on June 10, a nurse found Randolph in a locked
bathroom. He was unresponsive and had no pulse or respirations. He was
pronounced dead at 11:43 p.m. The cause of death was a saddle pulmonary
embolism due to deep vein thrombosis.
A request for a medical review panel was filed naming Dr. Mai and
other health care providers. By letter dated March 14, 2022, the Louisiana
Patient’s Compensation Fund (“PCF”) informed plaintiff’s counsel that Mai
was not a qualified health care provider and not entitled to have the medical
malpractice claims against him reviewed by a medical review panel. The
Division of Administration advised the same by letter dated May 6, 2022.
On August 5, 2022, Julia Ellis, individually and on behalf of her son
Randolph, filed suit against Dr. Mai. She asserted survival and wrongful
death claims. Ellis alleged that Dr. Mai was negligent and breached the
standard of care by failing to: (1) order labs and imaging to rule out
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pulmonary embolism in a post-surgery patient with acute hypoxia; (2)
consult a pulmonologist; (3) admit Randolph to a telemetry unit or the ICU;
(4) order a CT angiogram or D-Dimer level; and (5) order an anticoagulation
drug. She further alleged that Dr. Mai’s negligence, substandard care, and
vicarious liability contributed to Randolph’s untimely death or in the
alternative, caused him to lose a chance of survival.
Dr. Mai filed the exception of no cause of action in which he argued
that because of Governor John Bel Edwards’s emergency declaration due to
the Covid pandemic, Ellis was required to prove gross negligence or willful
misconduct in order to succeed on her medical malpractice claim. Dr. Mai
contended that Ellis’s claims are based solely on general negligence, she
failed to allege gross negligence or willful misconduct, and she failed to
allege facts which would give rise to such claims.
La. R.S. 29:771(B)(2)(c)(i) (“the statute”) of the Louisiana Health
Emergency Powers Act (“LHEPA”) 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.
A health care provider is defined as “a clinic, person, corporation,
facility, or institution which provides health care or professional services by
a physician, dentist, registered or licensed practical nurse, pharmacist,
optometrist, podiatrist, chiropractor, physical therapist, psychologist, or
psychiatrist, and any officer, employee, or agent thereof acting in the course
and scope of his service or employment.” La. R.S. 29:762(4).
On March 11, 2020, Governor Edwards declared a public health
emergency for the Covid 19 virus through Proclamation Number 25 JBE
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2020. On May 26, 2021, Governor Edwards proclaimed an extension of the
emergency provisions due to the Covid 19 public health emergency through
Proclamation Number 94 JBE 2021. Both proclamations were attached as
exhibits to the memorandum in support of the exception.
Ellis acknowledged in her memorandum in opposition to the
exception that it was undisputed that the declaration was in effect at the time
of Dr. Mai’s treatment and that allegations of gross negligence were not
asserted in the petition. Ellis argued that: (1) the statute is a qualified
immunity provision that must be pled as an affirmative defense; (2) Dr. Mai
did not meet his burden of proving by a preponderance of the evidence that
the statute granted him qualified immunity in this circumstance; (3) applying
the immunity provision in this matter is against legislative intent and leads to
absurd consequences; and (4) the immunity provision is unconstitutional.
Ellis argued in the alternative that she should be allowed to amend the
petition to remove the grounds of the exception.
Dr. Mai objected in his reply memorandum to giving Ellis the
opportunity to amend her petition because the allegations did not raise
grounds which could form the basis of a claim for gross negligence or
willful misconduct.
In its reasons for judgment, the trial court first concluded that while
Dr. Mai could have raised the immunity issue as an affirmative defense, that
does not preclude him from raising it as an exception of no cause of action.
In reaching this conclusion, the court relied on Welch v. United Medical
Healthwest-New Orleans, L.L.C., 21-684 (La. App. 5 Cir. 8/24/22), 348 So.
3d 216. The court concluded that Ellis could not prevail under the standard
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for an affirmative defense or for an exception of no cause of action. The
court also rejected the argument that applying the immunity provision under
these facts went against legislative intent and led to absurd consequences.
The court recognized the public health crisis created by Covid 19 and that
this was the situation that the legislature contemplated when implementing
the immunity provision. The court did not consider the constitutional
argument as it was not properly pled. Finally, the court denied the request
for leave to amend the petition because there was nothing in the record that
would support an amendment to allege gross negligence or willful
misconduct. Moreover, gross negligence or willful misconduct could have
been pled by Ellis in the alternative.
DISCUSSION
In Ambrose v. New Orleans Police Dept. Ambulance Service, 93-
3099, pp. 5-6 (La. 7/5/94), 639 So. 2d 216, 219-220, the Louisiana Supreme
Court 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.
Citations omitted.
Ellis concedes that the declaration of a public health emergency was
in effect at the time of her son’s treatment by Dr. Mai. She also concedes
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that her petition did not include an allegation of gross negligence or willful
misconduct. Instead, she maintains that the judgment should be reversed
because the qualified immunity provided through the statute is an
affirmative defense that must be pleaded by Dr. Mai in his answer. In
support of her argument, she cites Sebble on Behalf of Estate of Brown v. St.
Luke’s #2, LLC, 23-00483 (La. 10/20/23), 379 So. 3d 615.
In Sebble, the Louisiana Supreme Court concluded that the gross
negligence standard in the statute could not be considered by a medical
review panel. The court noted that it agreed with the appellate court’s
characterization of the statute as an immunity statute. The court also stated
that because statutory immunity is an affirmative defense, it may only be
raised in an answer filed in a civil proceeding. In a footnote, the court cited
Welch, where the appellate court determined that the tort immunity provided
in the statute had been mistakenly pled as an exception of no cause of action
when it is in fact an affirmative defense.
In Welch, the defendant, United Medical, raised the exception of no
cause of action to Welch’s medical malpractice lawsuit. United Medical
argued that the alleged malpractice took place during the public health
emergency, that it was granted immunity under the statute, and that Welch’s
allegations did not include claims of gross negligence. In opposition, Welch
argued that the statute provides a qualified tort immunity, which is an
affirmative defense that United Medical failed to meet its burden of proving.
At the hearing on the exception, the trial court entered into evidence: (1) the
memorandum submitted by United Medical; (2) a letter from the PCF
advising that United Medical was not a qualified health care provider; and
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(3) a copy of Governor Edwards’s first proclamation of a state of
emergency. The exception was sustained.
The Welch court found that the tort immunity provided in the statute
was mistakenly pled by United Medical as an exception of no cause of
action when it is actually an affirmative defense. However, the trial court
had considered it properly pled on the basis of La. C.C.P. art. 1005, which
states, in part:
If a party has mistakenly designated an affirmative defense as a
peremptory exception or as an incidental demand, or a
peremptory exception as an affirmative defense, and if justice
so requires, the court, on such terms as it may prescribe, shall
treat the pleading as if there had been a proper designation.
The Welch court concluded that United Medical met its burden of
proving beyond a preponderance of the evidence that the alleged negligence
occurred during a state of public health emergency, which triggered the
immunity provision, but that it did not rise to the level of gross negligence.
The Welch court determined that the trial court did not err in finding that the
statute applied in that matter and that the affirmative defense of tort
immunity provided by it defeated Welch’s demand on its merits.
In Doe v. Dynamic Physical Therapy, LLC, 2024-0723 (La. App. 1
Cir. 12/27/24), 2024 WL 5233066, __ So. 3d __, the appellate court affirmed
a judgment sustaining the exception of no cause of action on the basis of the
statute. In a footnote, the Doe court found that the tort immunity provided
by the statute was “mistakenly” pled by the defendants in two peremptory
exceptions of no cause of action when it was actually an affirmative defense,
which the trial court considered properly pled under La. C.C.P. art. 1005.
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An affirmative defense is one that raises a new matter which,
assuming the allegations in the petition to be true, constitutes a defense to
the action and will have the effect of defeating the plaintiff’s demand on its
merits. Alexander v. Cornett, 42,147 (La. App. 2 Cir. 7/11/07), 961 So. 2d
622, writ denied, 07-1681 (La. 11/2/07), 966 So. 2d 603.
The function of the peremptory exception of no cause of action is to
test the legal sufficiency of the petition, which is done by determining
whether the law affords a remedy on the facts alleged in the pleading.
Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So. 2d 114. The court
reviews the petition and accepts well-pleaded allegations of fact as true. Id.
All doubts are resolved in favor of the sufficiency of the petition to afford
litigants their day in court. Jackson v. City of New Orleans, 12-2742 (La.
1/28/14), 144 So. 3d 876. The issue at the trial of the exception of no cause
of action is whether, on the face of the petition, the plaintiff is legally
entitled to the relief sought. Ramey, supra.
An exception of no cause of action is likely to be granted only in the
unusual case in which the plaintiff includes allegations that show on the face
of the petition that there is some insurmountable bar to relief. City of New
Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.
3/2/99), 739 So. 2d 748; Rangel v. Denny, 47,381 (La. App. 2 Cir. 8/8/12),
104 So. 3d 68. Thus, dismissal is justified only when the allegations of the
petition itself clearly show that the plaintiff does not have a cause of action,
or when its allegations show the existence of an affirmative defense that
appears clearly on the face of the pleadings. (Emphasis added.) Id. A court
appropriately sustains the peremptory exception of no cause of action only
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when, conceding the correctness of the well-pleaded facts, the plaintiff has
not stated a claim for which he can receive legal remedy under the
applicable substantive law. Id.
An appellate court’s review of a trial court’s ruling sustaining an
exception of no cause of action is de novo because the exception raises a
question of law, and the trial court’s decision is based only on the
sufficiency of the petition. Grayson v. Gulledge, 55,214 (La. App. 2 Cir.
9/27/23), 371 So. 3d 1133, writ denied, 23-01437 (La. 1/10/24), 376 So. 3d
847.
The existence of an affirmative defense, the immunity provided by La.
R.S. 29:771(B)(2)(c)(i), appears clearly on the face of the petition. Ellis
alleged that the treatment by Dr. Mai occurred in June of 2021. Ellis
concedes in her appellate brief that the declaration of a public health
emergency was in effect at the time. This would have triggered the
immunity provision of La. R.S. 29:771(B)(2)(c)(i). Furthermore, Ellis
concedes in her appellate brief that there was no allegation of gross
negligence or willful misconduct in the petition. Under these circumstances,
we conclude that the trial court did not err in sustaining the exception of no
cause of action.
When the grounds of the objection pleaded by the peremptory
exception may be removed by amendment of the petition, the judgment
sustaining the exception shall order such amendment within the delay
allowed by the court. La. C.C.P. art. 934. If the grounds of the objection
raised through the exception cannot be so removed, or if the plaintiff fails to
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comply with the order to amend, the action, claim, demand, issue, or theory
shall be dismissed. Id.
Although Ellis has not requested on appeal that she be given the
opportunity to amend her petition to remove the grounds of the exception,
she did so in her memorandum in opposition to the exception that was filed
at the trial court. Accordingly, we remand this matter to the trial court to
grant Ellis leave to amend her petition to state a cause of action.
CONCLUSION
At Ellis’s cost, the judgment granting the exception of no cause of
action is affirmed and the matter is remanded to the trial court for further
proceedings.
AFFIRMED; REMANDED.
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