Talbert v. Louisiana State Board of Nursing · 2003 La.App. 1 Cir. 0258

The opinion

| FITZSIMMONS, J.,

dissenting with reasons.

I respectfully dissent from the majority’s determination that the quasi-judicial immunity of the Louisiana State Board of Nursing entitles it to “absolute immunity as to claims for money damages based upon a wrongful administrative adjudication.” Louisiana Revised Statute 37:931 states in part:

B. There shall be no liability on the part of and no action for damages against any member of the board, its officers, employees, agents, or representatives for any action undertaken or performed by such individual within the scope of the duties, powers, and functions of the board when acting without malice and in the reasonable belief that the action taken is within the board’s and such individual’s authority. (Emphasis supplied.)

Mrs. Talbert alleged that her license was maliciously, unreasonably and wrongfully suspended, and in violation of due process. The causes of action are against the Board, rather than against the individual members of the Board. Among other damages, Mrs. Talbert seeks restitution of lost wages, lost sick leave, and lost 401 K contributions.

Any immunity of the Board as a result of its actions is limited by the express conditions of the absence of malice and the reasonableness of its belief. See Quina v. Orleans Parish School Board, 224 So.2d 835, 840 (La.App. 4th Cir.1969). Although Mrs. Talbert may experience an uphill battle in her attempt to demonstrate the existence of malice or lack of reasonableness on the part of the Board, these causes of action against the Board remain statutorily authorized. \9i Thus, the procedural vehicle of an exception based on an objection of no cause of action is not apposite to the allegations of malice and lack of reasonableness brought in the petition.

Additionally, Mrs. Talbert is correct in her assertion that she should have been *732 granted the opportunity to amend the petition if the grounds of the objection pleaded by the peremptory exception may be removed by such amendment.

It is for these reasons that I dissent.