Under the Louisiana Health Emergency Powers Act (“LHEPA”), a plaintiff must establish a medical provider’s gross negligence in a medical malpractice case when the treatment at issue occurred during a declared state of public health emergency.^ However, the Louisiana Supreme Court recently ruled that a medical review panel shall not consider gross negligence when the medical treatment occurred during a declared state of public health emergency.
In Sebble v. St. Luke’s, the plaintiff instituted a medical review panel for a medical malpractice claim related to medical treatment provided from June 17, 2020 to June 24, 2020. This treatment was received during a declared state of public health emergency. Sebble asked the court for a declaratory judgment to state that the gross negligence standard, usually applied during a state of public health emergency, should not be considered or applied in medical review panel proceedings conducted pursuant to the Louisiana Medical Malpractice Act (“LMMA”).
In response, the health care provider also sought a declaratory judgment that LHEPA’s standard of gross negligence applied and that the medical review panel must consider and analyze the claim under the gross negligence standard. The trial court ruled in favor of Sebble declaring that the gross negligence standard shall not be considered or applied in the medical review panel proceeding. The Louisiana Fourth Circuit Court of Appeal affirmed.
The Louisiana Supreme Court examined provisions of the LMMA and the LHEPA and affirmed the trial court and court of appeal. The court agreed there is a distinction between a medical standard of care (considered by the medical review panel) and a legal standard of care (dictated by the LHEPA). The panel of medical experts is only qualified to render an opinion based on the medical standard of care. The panel’s opinion is then considered by the trier of fact in making a judicial determination.
Medical review panels include an attorney chairperson. However, the Supreme Court stated that the attorney chairperson is not authorized to instruct the panel on gross negligence. The Supreme Court also rejected a proposed two-step process where the panel would first determine whether the medical provider breached the standard of care; and only if the panel found a breach would it consider whether there was gross negligence. The Court rejected this proposal because the legislature did not provide for this process in the statute.
Although the Court agreed that the LHEPA is an immunity statute, it made clear that immunity is an affirmative defense that can only be plead in civil litigation. The statute provides for two defenses at the panel stage: right of action and prescription. Therefore, immunity provided under the LHEPA may not be invoked until a civil action is instituted district court.
However, Sebble was 4-3 decision, with a dissent by Justices Weimer, Cain, and McCallum, which may suggest this issue could resurface in the future. For now, under Sebble, gross negligence is not to be considered by the medical review panel.
References:
Sebble v. St. Luke’s, 2023-C-00483 (La. 10/20/23), 379 So.3d 615.
^ La. R.S. 29:766(A).