K.P. v. LeBlanc

Case: 09-31015 Document: 00511302570 Page: 1 Date Filed: 11/23/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 23, 2010

No. 09-31015 Lyle W. Cayce

Clerk

K.P.; D.B., M.D.; HOPE MEDICAL GROUP FOR WOMEN,

Plaintiffs - Appellants

v.

LORRAINE LEBLANC, in her official capacity as Executive Director of the

Louisiana Patient’s Compensation Fund Oversight Board; CLARK COSSE, in

his official capacity as a member of the Louisiana Patient’s Compensation

Fund Oversight Board; MELANIE FIRMAN, in her official capacity as a

member of the Louisiana Patient’s Compensation Fund Oversight Board;

VINCENT CULOTTA, in his official capacity as a member of the Louisiana

Patient’s Compensation Fund Oversight Board; WILLIAM SCHUMACHER,

in his official capacity as a member of the Louisiana Patient’s Compensation

Fund Oversight Board; JOSEPH DONCHESS, in his official capacity as a

member of the Louisiana Patient’s Compensation Fund Oversight Board;

DIONNE VIATOR, in her official capacity as a member of the Louisiana

Patient’s Compensation Fund Oversight Board; DANIEL LENNIE, in his

official capacity as a member of the Louisiana Patient’s Compensation Fund

Oversight Board; MANUEL DEPASCUAL, in his official capacity as a

member of the Louisiana Patient’s Compensation Fund Oversight Board,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

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Physicians enrolled in the Louisiana Patient’s Compensation Fund

challenge the constitutionality of a state statute denying abortion providers the

benefits of participation in the Fund. They seek to enjoin the Patient’s

Compensation Fund Oversight Board from using that statute to prevent

processing and paying of abortion-related claims. The district court determined

that the members of this Board were entitled to Eleventh Amendment immunity

because they lacked sufficient connection with the challenged statute. We

disagree and therefore REVERSE and REMAND.

I. STATEMENT OF FACTS

Hope Medical Group for Women (“Hope”) provides women’s health

services, including elective abortions, in Shreveport, Louisiana. Plaintiffs K.P.

and D.B. are both physicians who perform abortions at Hope.

Both K.P and D.B. are enrolled in the Louisiana Patient’s Compensation

Fund. The Fund was created by the 1975 Medical Malpractice Act (“the Med-

Mal Act”) in an effort to control the costs of medical malpractice insurance. The

Fund’s purpose is to make uniform compensation to patients claiming injuries

as a result of medical malpractice. The Fund is a voluntary program for which

all licensed and certified healthcare providers are eligible.

Participation in the program requires a healthcare provider to file an

application and proof of financial responsibility with the Patients’ Compensation

Fund Oversight Board (“the Board”), which administers the Fund. Financial

responsibility can be shown either by medical malpractice insurance coverage

or $125,000 in cash or cash equivalents. Participating providers must also pay

annual surcharges based on the risks associated with their respective practices

and the claims history in those areas.

Healthcare providers that meet these requirements and pay the applicable

charges are deemed qualified and are issued a certificate of enrollment. Once

enrolled in the program, providers are eligible for significant benefits. Among

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these benefits is a cap on medical malpractice liability. A Fund participant’s

personal liability is limited to $100,000. Any damages in excess of that amount

are paid by the Fund. Total recovery is limited to $500,000 plus future medical

expenses. Qualified providers are also entitled to a medical review panel’s

expert opinion on whether the provider violated the standard of care. The

panel’s report is admissible in any subsequent civil proceeding.

In June 2007, a former Hope patient named Brittany Prudhome requested

the formation of a Fund medical review panel to assess claims for injuries

sustained during an abortion at Hope. Prudhome’s complaint sought damages

for medical negligence. She identified as defendants Doctors K.P. and D.B., as

well as the clinic.

After reviewing her claim, the Board in July 2007 informed Prudhome that

neither K.P. nor D.B. was qualified for Fund coverage as to her claim. The

Board cited Louisiana Revised Statute Section 9:2800.12 as the reason it refused

Prudhome’s claim. That 1997 statute defines the tort liability of physicians who

perform abortions. A doctor is liable for “any damage occasioned or precipitated

by the abortion,” including “injuries suffered or damages occasioned by the

unborn child . . . .” La. Rev. Stat. Ann. § 9:2800.12(A), (B)(2). It further provides

that “laws governing medical malpractice or limitations of liability thereof

provided in [the Medical Malpractice Act] are not applicable to this Section.” Id.

§ 9:2800.12(C)(2).

Based on Section 9:2800.12, the Board reasoned that abortion providers

were not entitled to participate in the Fund for abortion-related procedures.

Despite the two doctors’ enrollment in the Fund, the Board refused to convene

a review panel to hear Prudhome’s complaint. Prudhome subsequently filed suit

against the doctors and Hope in state court.

In November 2007, the doctor identified as K.P. filed suit in the United

States District Court for the Middle District of Louisiana. The Defendants were

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the members of the Board and also Lorraine LeBlanc, the Fund’s Executive

Director, named in their official capacities. Later, Hope and the doctor identified

as D.B. became Plaintiffs. The suit challenged the constitutionality of Section

9:2800.12 both on its face and as applied. Specifically, Plaintiffs contended that

the statute is unconstitutionally vague and violates the rights of physicians and

their patients to equal protection and privacy as guaranteed by the Fourteenth

Amendment. Plaintiffs requested declaratory and injunctive relief.

The Defendants filed a motion to dismiss on the grounds that they are

immune from suit under the Eleventh Amendment. The district court dismissed

the action, concluding that the statute in question did not charge these

defendants with any particular enforcement authority. This appeal followed.

II. DISCUSSION

A. Mootness

After litigation commenced in this case, the Board in March 2008 agreed

to convene a medical review panel to assess Prudhome’s claims. In

correspondence with Prudhome’s attorney, the Board expressed a willingness to

review the merits of her action but reserved the right to refuse payment if the

Board later determined that abortion-related procedures were not covered by the

Med-Mal Act. Defendants now assert that their determination to admit

Prudhome’s claim against the Plaintiffs moots this action.

Mootness exists when the actual controversy among the parties has ended.

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). If

accepting the claim for processing gives to the Plaintiffs everything the

Defendants could properly be ordered to do by a court in this lawsuit, mootness

might have arisen. The constitutional issues at the core of this litigation would

be for another cast of players.

To understand whether the case is moot, we need to understand the role

of the Defendants regarding a claim such as that presented by Prudhome.

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Among the actions the Board takes is to decide – as a gatekeeper, to use the

parties’ word – whether the claim is one it may accept. The Board has now

changed positions on that, from its July 2007 denial to its March 2008

acceptance. In a latter dated March 12, 2008, the Board stated that the claim

would be considered by a medical review panel. Relevant to mootness, though,

the Board reserved its right to deny the coverage of the Fund if it is determined

that the claim was not “malpractice” as defined by state law. The reservation

was capitalized, presumably, because of its importance:

THE PATIENT’S COMPENSATION FUND AND THE

OVERSIGHT BOARD RESERVE THE RIGHT TO DENY PCF

COVERAGE FOR THOSE ALLEGATIONS DETERMINED TO BE

OUTSIDE OF THE SCOPE OF MALPRACTICE AS DEFINED IN

THE MEDICAL MALPRACTICE ACT.

Section 9:2800.12 was not cited, but it was the unnamed potential barrier to use

of the Fund. The Board did not commit the medical review panel to completing

its usual process for a claim and preparing a report.

The difficulties the panel would have in preparing a report can be seen

from the panel procedures and responsibilities set out at some length in a section

of the Med-Mal Act. See La. Rev. Stat. Ann. § 40:1299.47. The panel is to

receive evidence, consult with experts if it desires, and then “express its expert

opinion as to whether or not the evidence supports the conclusion that the

defendant or defendants acted or failed to act within the appropriate standards

of care.” Id. § 1299.47(F), (G). The panel report is admissible in a medical

malpractice action. Id. § 1299.47(H). Section 9:2800.12, though, might make

the report irrelevant because it provides that no standard of care will apply to

damages resulting from abortions. Id. § 9.2800.12. Thus, it could be that the

panel or the Board may decide that the report is useless to an abortion claim

under Section 9:2800.12 and end up not preparing one. We find no concession

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by the Defendants that the medical review panel will actually prepare a report

that will state an opinion on whether medical malpractice occurred.

The Board would again become involved in a claim such as Prudhome’s at

least by the time of a settlement between a patient and the abortion providers,

or after a civil action were concluded. That is when the Board would decide

whether an amount greater than the $100,000 that the medical provider has to

pay should be paid by the Fund. Id. § 1299.44(B)(2)(A). We do not see specific

reference in that section to an obligation of the Board to determine whether the

claim is one covered by the Fund. Elsewhere, though, the Med-Mal Act declares

that the Fund is not “liable for any sums except those arising from medical

malpractice.” Id. § 1299.41(I). The Med-Mal Act under which the Fund

operates is specifically made inapplicable by Section 9:2800.12.

We know from the evidence that the Board has taken the position that the

Fund is not available to pay claims that are affected by Section 9:2800.12. That

view is unremarkable, as the statute clearly prohibits use of the Fund for

abortion claims that are brought under Section 9:2800.12. A Louisiana

“administrative agency does not have the authority to determine the

constitutionality of statutes.” Albe v. La. Workers Comp. Corp., 700 So. 2d 824,

828 (La. 1997). The Board has to apply statutes as written. This litigation calls

on the Board to defend the statute, not to question it.

The only basis argued for mootness is that in March 2008, the Board

agreed after this litigation commenced to have the Prudhome claim considered

by a medical review panel. At best, this is a voluntary cessation of one effect of

the earlier announced refusal to allow use of the Fund for abortion claims.

Voluntary cessation even of all the conduct being challenged in a lawsuit does

not moot a case. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 324 (5th Cir.

2009). A defendant, without court compulsion, could legally return to its former

ways. The defendants, who are the ones asserting mootness, must convince us

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that there is no reasonable prospect that what the plaintiffs allege as the cause

of their injury will recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

Inc., 528 U.S. 167, 189 (2000). We are not convinced.

This suit is not moot.

B. Standing

Neither party has raised the issue of standing. We should address

standing, though, when there exists a significant question about it. See Doe v.

Tangipahoa Parish Sch. Bd., 473 F.3d 188, 194 (5th Cir. 2006). We raise the

point because of the similarity of the present action to a case heard en banc by

this court in 2001. Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc).

There, a physician who performed abortions challenged the constitutionality of

Section 9:0028.12. Id. at 409. Like the Plaintiffs here, a doctor sought to enjoin

enforcement of the statute. Id. Named as defendants in that suit were the

Attorney General and the Governor of Louisiana, who asserted Eleventh

Amendment immunity as a defense. Id. at 410.

The district court in Okpalobi declared the statute unconstitutional; a

panel of this Court affirmed. Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999),

superseded by Okpalobi, 244 F.3d 405 (en banc). The en banc Court reversed the

district court because ten of the fourteen judges agreed that the Plaintiffs lacked

Article III standing. Okpalobi, 244 F.3d at 429.

Article III of the United States Constitution grants jurisdiction to the

federal courts only over claims that constitute “cases” or “controversies.” U.S.

Const. art. III, § 2, cl. 1. Federal courts should exercise power only “in the last

resort[ ] and as a necessity . . . and only when adjudication is consistent with a

system of separated powers and the dispute is one traditionally thought to be

capable of resolution through the judicial process.” Allen v. Wright, 468 U.S.

737, 752 (1984) (citations, brackets, and quotation marks omitted).

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Article III standing requires an injury-in-fact caused by a defendant's

challenged conduct that is redressable by a court. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992). We discuss all three components.

1. Injury-in-fact

An injury sufficient to confer standing is both “concrete and particularized”

and “actual or imminent.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir.

2009). The initial alleged injury was the failure of the defendants to convene a

medical review panel. A panel was subsequently convened, a fact we discussed

earlier regarding mootness. Plaintiffs also complain that they sustained actual

pecuniary injuries when they were refused the benefits otherwise associated

with their paid membership in the Fund. For example, they are subject to

unlimited liability for the performance of abortion procedures because the

liability caps of the Fund are not being applied to their abortion patients. The

uncapped liability likely affects malpractice insurance rates.

We conclude that being denied these and other protections of the Med-Mal

Act is a “direct pecuniary injury” that generally is sufficient to establish injury-

in-fact. See Henderson v. Stalder, 287 F.3d 374, 379 (5th Cir. 2002).

Admittedly, the injury alleged here is not as concrete as some might be.

The Plaintiffs’ liability for suits filed by Prudhome or other future patients has

not yet materialized. Still, both this court and the Supreme Court have

generally permitted future events which are sufficiently likely to occur to serve

as a basis for standing when the plaintiffs, as here, are seeking injunctive relief.

For example, the Supreme Court has determined that a “real and immediate

threat of future injury” is sufficient to confer standing to pursue an injunction

so long as that threat is not merely conjectural. City of L.A. v. Lyons, 461 U.S.

95, 107 n.8 (1983). We have also held that in order to have standing to seek

injunctive relief, plaintiffs must demonstrate that they are “likely to suffer

future injury by the defendant.” James v. City of Dallas, 254 F.3d 551, 563 (5th

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Cir. 2001). Given the imminent threat posed by Prudhome’s suit – and the

probability of future suits of the same type – it is sufficiently likely that the

physicians will face liability for abortion-related procedures.

Plaintiffs have alleged a sufficient injury-in-fact.

2. Causation

Whether a defendant’s actions caused a plaintiff’s injuries must be

assessed. The Defendant Board is responsible for administering the benefits the

Plaintiffs claim to have been denied. Members of the Board serve as initial

arbiters of compensable claims under the Fund. Although the Board cannot

prevent a private litigant from pursuing relief in Louisiana court, it can

unilaterally preclude the Plaintiffs from claiming the benefits of limited liability

and independent medical review. It can subsequently refuse to recognize the

right to call on the Fund to pay a settlement or court judgment. This places the

Defendants among those who would contribute to Plaintiffs’ harm. The Board

is the body with the initial authority to disburse or withhold the benefits

associated with Fund membership.

Although the Board’s decision could be overridden by a court, that does not

block the tracing of the injury to these Defendants. Tracing an injury is not the

same as seeking its proximate cause. Bennett v. Spear, 520 U.S. 154, 168-69

(1997). Because the Defendants significantly contributed to the Plaintiffs’

alleged injuries, Plaintiffs have satisfied the requirement of traceability.

3. Redressability

Redressability was a key basis for the Okpalobi court’s holding that those

plaintiffs did not have standing. Okpalobi, 244 F.3d at 426-28. The court

concluded that the Governor and Attorney General could not prevent private

litigants from prosecuting causes of action pursuant to Section 9:2800.12. Id. at

428-29. The Board cannot either. The Board can, though, start the process for

considering a claim against an abortion provider under the Med-Mal Act, or it

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can refuse to do so. Until March 2008, it refused. Even if the Board convenes

a medical review panel, what the panel would do is unclear. It is supposed to

state an opinion about whether a physician has met the standard of care. For

abortion claims under Section 9:2800.12, though, such a standard may not

matter. Finally, the Board can refuse to pay a claim if it determines malpractice

legally was not involved.

We acknowledge that the Board is far from the sole participant in the

application of the challenged statute. For example, litigants may bypass the

Board and proceed directly in the courts. But at several points, Section

9:2800.12 impacts the Board’s actions sufficiently to confer standing on these

Plaintiffs. “[A] plaintiff satisfies the redressability requirement when he shows

that a favorable decision will relieve a discrete injury to himself. He need not

show that a favorable decision will relieve his every injury.” Larson v. Valente,

456 U.S. 228, 243 n.15 (1982). This distinguishes the Board’s role from that of

the Governor and Attorney General in Okpalobi. Those two officials were found

not to have “any duty or ability to do anything” relating to enforcement of the

statute. Okpalobi, 244 F.3d at 427. Here, the Board has definite responsibilities

relating to the application of Section 9:2800.12. Perhaps this distinction was

sufficiently obvious that the Defendants decided not to contest standing.

Plaintiffs have standing to seek relief from these Defendants.

C. Eleventh Amendment Immunity

The Eleventh Amendment bars suits by private citizens against a state in

federal court. See Hutto v. Finney, 437 U.S. 678, 700 (1978). The bar applies not

only to the state itself, but also protects state actors in their official capacities.

See Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 320 (2008).

We review de novo a district court’s order granting a motion to dismiss on

Eleventh Amendment grounds. Hudson v. City of New Orleans, 174 F.3d 677,

682 (5th Cir. 1999).

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The Supreme Court carved out a narrow exception to the Eleventh

Amendment in Ex Parte Young, 209 U.S. 123 (1908). The rule is based on the

legal fiction that a sovereign state cannot act unconstitutionally. Id. at 159.

Thus, where a state actor enforces an unconstitutional law, he is stripped of his

official clothing and becomes a private person subject to suit. Id. at 160.

In order to use the Ex Parte Young exception, a plaintiff must demonstrate

that the state officer has “some connection” with the enforcement of the disputed

act. Id. at 157. The connection requirement exists to prevent litigants from

misusing the exception. There are plenty of state actors. A plaintiff must show

that the defendant state actors “have the requisite ‘connection’ to the statutory

scheme to remove the Eleventh Amendment barrier to suits brought in federal

court against the State.” Okpalobi, 244 F.3d at 410-11.

Ex Parte Young gives some guidance about the required “connection”

between a state actor and an allegedly unconstitutional act. “The fact that the

state officer, by virtue of his office, has some connection with the enforcement of

the act, is the important and material fact, and whether it arises out of the

general law, or is specially created by the act itself, is not material so long as it

exists.” Ex Parte Young, 209 U.S. at 157.

Defendants rely heavily on the lead opinion in Okpalobi for the proposition

that a “special” relationship – not just “some connection” – needs to exist.

Okpalobi, 244 F.3d at 414. Because that part of the en banc opinion did not

garner majority support, the Eleventh Amendment analysis is not binding

precedent. See United States v. Ferguson, 211 F.3d 878, 885 (5th Cir. 2000).

We need not resolve whether Ex Parte Young requires only “some

connection” or a “special relationship” between the state actor and the

challenged statute. We conclude that the Board falls within Ex Parte Young

under either standard. As noted above, the state actor must be connected with

an act’s “enforcement” for the exception to apply. Ex Parte Young, 209 U.S. at

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157. “Enforcement” typically involves compulsion or constraint. Webster’s Third

New International Dictionary 751 (1993). By excluding abortion-related

procedures from the coverage of the Med-Mal Act, Section 9:2800.12(C) implicitly

requires the Board to differentiate between claims allowable and not allowable

under the statute. By saying that only malpractice claims can be paid from the

Fund, the Med-Mal Act also requires the Board to determine whether a claim

presented to it has been statutorily excluded by Section 9:2800:12 from coverage.

La. Rev. Stat. Ann. § 40:1299.41(I).

In summary, the Board’s role starts with deciding whether to have a

medical review panel consider abortion claims and ends with deciding whether

to pay them. By virtue of these responsibilities, Board members are delegated

some enforcement authority. Indeed, the evidence in this record indicates that

the Board took an active role in enforcing Section 9:2800.12 as to Brittany

Prudhome. When she brought her claim to the Board, she was instructed that

she was without recourse under the Fund and should instead submit her claim

to the courts. The Board enforces Section 9:2800.12 by applying its prohibitions.

The Defendants have the requisite connection with Section 9:2800.12 to

fall within the Ex Parte Young exception. Consequently, this suit is not barred

by the Eleventh Amendment.

We REVERSE and REMAND for further proceedings.

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DENNIS, Circuit Judge, concurring.

I fully concur in Judge Southwick’s opinion for the court, but also write

separately to make a few additional observations. The Louisiana statute that

the plaintiffs seek to challenge, La. Rev. Stat. Ann. § 9:2800.12, contains an

ambiguity which, although not dispositive, is relevant to the standing and

Eleventh Amendment analyses. Judge Southwick’s opinion refrains from

addressing this ambiguity, but quite rightly holds that the plaintiffs in this case

have standing and that the suit is not barred by the Eleventh Amendment

regardless of how the ambiguity should be resolved. However, my agreement

with the court’s holdings is strengthened by my understanding of the meaning

and effect of § 9:2800.12, which is as follows.

Section 9:2800.12(A) creates a private civil cause of action under which

“[a]ny person who performs an abortion is liable to the mother of the unborn

child for any damage occasioned or precipitated by the abortion.” The statute

does not specify a standard of care; consequently, as Judge Southwick’s opinion

indicates, the statute seems to implicitly impose strict liability, regardless of

fault, on health care providers who perform abortions.1 Further, the statute

provides that Louisiana’s statutory regime governing medical malpractice does

not apply to actions brought under § 9:2800.12 for damage related to abortions.

Id. § 9:2800.12(C)(2). However, the statute is silent as to whether a patient who

has suffered some harm arising from an abortion can still bring an ordinary

medical malpractice action under preexisting law, as with any other medical

1

A panel of this court previously concluded that the statute provides for strict liability.

Okpalobi v. Foster, 190 F.3d 337, 360 (5th Cir. 1999), vacated on other grounds, 244 F.3d 405

(5th Cir. 2001) (en banc). However, the defendants disagree with this reading and argue that

“the statute, read in pari materia with all of Louisiana tort law, requires proof of negligence.”

Appellees’ Brief 6 n.3. We do not need to decide on the exact nature or scope of the right of

action created by § 9:2800.12(A) in order to resolve the issues presented by this appeal.

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procedure, or whether such a patient’s only recourse is to bring a strict liability

action under § 9:2800.12.

Since § 9:2800.12 is silent on the matter, I believe the Louisiana

legislature did not mean to impliedly prevent patients from bringing claims

under ordinary medical malpractice law for damages arising from abortions.

Indeed, Brittany Prudhome, the former patient who sued K.P., D.B., and Hope

Medical for damages arising from an abortion, appears to have sought to bring

an ordinary malpractice claim rather than a strict liability claim under

§ 9:2800.12.2 Prudhome’s counsel’s letter to LeBlanc, in which she requested

that a medical review panel be convened, referred to her claim as a “medical

negligence claim” and asserted that K.P., D.B, and Hope Medical “failed to meet

the appropriate standard of medical care.” The letter made no mention of strict

liability or § 9:2800.12.

The Board, in its response to Prudhome and in its communications with

K.P., D.B., and Hope Medical, appears to have taken the position that it must

deny health care providers all the benefits of the Louisiana Patients’

Compensation Fund with regard to any claim arising from an abortion, even an

ordinary medical malpractice claim. These benefits, as Judge Southwick’s

opinion explains, include the convening of medical review panels, the limitation

of liability to $100,000, and the ability to self-insure by depositing $125,000 with

the Board.

2

This may well have been a reasonable legal strategy on Prudhome’s part, since the

strict liability cause of action under § 9:2800.12(A) may be unconstitutional, as the panel

decision in Okpalobi held it was. Okpalobi v. Foster, 190 F.3d 337, 359-60 (5th Cir. 1999),

vacated on other grounds, 244 F.3d 405 (5th Cir. 2001) (en banc). If Prudhome believed she

could show that K.P., D.B., and Hope Medical breached the relevant standard of care, then she

would not have needed to rely on strict liability in order to recover damages.

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The Board’s denial of these three benefits to K.P., D.B., and Hope Medical

(with respect to Prudhome’s claim in particular, and with respect to abortion-

related malpractice claims in general) constitutes three concrete and

particularized injuries, each of which independently satisfies the injury-in-fact

requirement of Article III standing.3 The Board’s refusal to convene a medical

review board has already taken place and, as Judge Southwick’s opinion

explains, it is not moot. The denial of a medical review board concretely injured

K.P., D.B., and Hope Medical because medical review boards benefit health care

providers by facilitating the dismissal of meritless malpractice suits and aiding

in the settlement of suits that appear to be meritorious.4 Although Prudhome’s

suit has not yet been resolved, the Board’s apparent policy of refusing to pay

abortion-related malpractice claims in excess of $100,000 also causes concrete

pecuniary injury to the plaintiffs by effectively raising their cost of obtaining

malpractice insurance.5 See Henderson v. Stalder, 287 F.3d 374, 379 (5th Cir.

2002) (“a direct pecuniary injury” is “an injury in fact”). Likewise, by refusing

Patients’ Compensation Fund coverage for all abortion-related malpractice

3

See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (explaining that

Article III standing requires an “injury in fact” which is “concrete and particularized” and

“actual or imminent”).

4

See Everett v. Goldman, 359 So. 2d 1256, 1264 (La. 1978) (“Pretrial screening through

a medical review panel is designed to weed out frivolous claims without the delay or expense

of a court trial. It is thought that the use of such panels will encourage settlement because

both parties will be given a preliminary view of the merits of the case.”). Thus, regardless of

whether Prudhome’s malpractice claim has any merit, K.P., D.B., and Hope Medical were

injured by the Board’s refusal to convene a review panel to assess whether they had violated

the relevant standard of care.

5

The $100,000 cap on liability for participating health care providers was designed to

make malpractice insurance more affordable. See Descant v. Adm’rs of Tulane Educ. Fund,

639 So. 2d 246, 248 (La. 1994) (“In part, the [Medical Malpractice] Act was designed to

increase the likelihood that health care providers would carry malpractice insurance by

regulating the total damage recovery of malpractice victims, thereby reducing insurance

premiums.”).

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claims, the Board denies K.P., D.B., and Hope Medical the financially beneficial

opportunity to self-insure with respect to such claims by depositing $125,000

with the Board. All three of these injuries are concrete and immediate, not

abstract or speculative; they plainly fulfill the injury-in-fact requirement.

Moreover, the injuries are obviously directly caused by the Board’s decisions, and

could be redressed by an injunction requiring the Board to treat abortion-related

malpractice claims the same way it treats other malpractice claims.6 Thus,

based on my reading of § 9:2800.12, I conclude that the facts as alleged by the

plaintiffs easily fulfill the three requirements of Article III standing.

Regarding the Eleventh Amendment issue, I fully agree with Judge

Southwick’s discussion of Ex parte Young and Okpalobi. However, the opinion’s

conception of “enforcement” as involving compulsion or constraint seems to me

to be unnecessarily restrictive. In a legal sense, to “enforce” a law or regulation

simply means “[t]o give force or effect” to it. Black’s Law Dictionary (8th ed.

2004). There is no need to ask whether the Board has done anything that

amounts to compulsion or constraint. The Board has plainly given force and

effect to its interpretation of § 9:2800.12, by refusing to convene a medical review

panel and by denying the other benefits of the Fund to K.P., D.B., and Hope

Medical. Moreover, the defendants have expressly stated, in a filing in the

district court, that the Board has a “gatekeeping function.” Because the Board

has actually enforced § 9:2800.12 by engaging in “gatekeeping,” it undeniably

has the “connection with the enforcement of the act” that is required under Ex

parte Young, 209 U.S. 123, 157 (1908).

6

See Lujan, 504 U.S. at 560-61 (stating that the three elements of Article III standing

are injury-in-fact, causation, and redressability).

16

Case: 09-31015 Document: 00511302570 Page: 17 Date Filed: 11/23/2010

No. 09-31015

With these observations, I join the court’s opinion.

17