Gross Negligence or Willful Misconduct Must Be Shown to Establish Liability Against Health Care Providers in Louisiana During a Declared Public Health Emergency
Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.
On March 11, 2020 Governor Edwards invoked the Louisiana Health Emergency Powers Act, La. R.S. 29:760 et seq., and declared a Public Health Emergency. Part of the Act (La. R.S. 29:771(2)(c)) provides:
“During a state of public health emergency, any health care providers shall not 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.”
Are hospitals included? – Yes. “Health care providers” is defined very broadly in the Act 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. 9:762(4). This language is certainly broad enough so as to include hospitals.
Is the statute’s protection limited to healthcare related to the emergency? – No. While this provision has not been interpreted by the Louisiana Supreme Court, a Louisiana appellate court applied it very broadly to a claim against a surgeon alleged to have left a sponge in the patient during a laminectomy during the declared Public Health Emergency following Hurricane Katrina. The court held that R.S. 29:771 “does not provide for a limited set of health care providers, nor does it limit its application to only those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.” Lejeune v. Steck, 138 So.3d 1280 (La. App. 5th Cir. 2014). In fact, though no court has addressed this issue, the wording of the statute does not even limit its application to the providing of healthcare.
What is gross negligence or willful misconduct? – The term gross negligence is different than ordinary negligence and 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.” It denotes “the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” It represents “an extreme departure from ordinary care or the want of even scant care.” Rabalais v. Nash, 952 So.2d 653 (La. 2007).
Are there other similar statutes? -- Yes. In a declared state of emergency, La. R.S. 13:1731.1 applies a gross negligence/willful misconduct standard to liability claims but only those against a “physician, surgeon, or physician assistant ... or a nurse ...” This statue applies to the listed class of health care providers who, “in good faith and regardless of compensation, render or fail to render emergency care, health care services or first aid during a declared state of emergency when the state of emergency affects the rendering of medical care.” Thus, under this provision, these healthcare providers must be rendering medical care affected by the state of emergency. This statute was enacted after Hurricane Katrina and there have been no reported decisions interpreting it.