By Magdalena Majka and Bruce Cranner
A recent opinion from the Louisiana Supreme Court interprets the Louisiana Health Emergency Powers Act (LHEPA) and clarifies that La. R.S. 29:771(B)(2)(c) – the LHEPA section providing for the modified standard of gross negligence – does not apply in the medical review panel process conducted under the Louisiana Medical Malpractice Act (LMMA). It is an important decision for all Louisiana medical malpractice cases arising from treatment rendered during the COVID declared state of public health emergency, that is between March 11, 2020, and March 16, 2022.
In Sebble v. St. Luke’s #2, LLC, 2023-00483 (La. 10/20/23), the Supreme Court held that when the medical treatment occurred during a declared state of public health emergency, the gross negligence standard of the La. R.S. 29:771(B)(2)(c)) should not be applied or even considered by a medical review panel.
The Court based its ruling on the determination that LHEPA sets forth a “legal standard of care” as opposed to the “medical standard of care.” While the medical standard of care must be established by the experts on the medical review panel pursuant to the LMMA, the legal standard of care is determined by “the trier of fact, lay persons, who consider all of the evidence, including the medical review panel’s opinion, and decide if the defendant health care provider’s conduct was grossly negligent.”
According to Sebble, the LHEPA is an immunity statute and therefore “it is procedurally improper to inject [it] into medical review panel proceedings.” The proper procedural mechanism for raising the gross negligence standard is through an affirmative defense in a civil proceeding.
As a practical matter, for all cases arising from treatment rendered during the COVID declared state of public health emergency, the medical review panel will only make the “baseline” determination: if there was a breach of the standard of care and causation or a question of fact, as provided for in La. R.S. 40:1231.8(G)(1)-(4). The panelists will not be instructed about the provisions of LHEPA and will not determine if there was gross negligence or willful misconduct notwithstanding any finding of a breach of the standard of care. If a subsequent civil proceeding is filed, the healthcare provider may raise the LHEPA immunity as an affirmative defense.
This is, of course, not the outcome healthcare providers hoped for, but it gives us some clarity. We know that the medical review panels will not decide the degree of a healthcare provider’s breach of standard of care, that is if it raised to the level of gross negligence, but this determination will be made by the trier of fact in the subsequent litigation.