Welch v. United Med. Healthwest-New Orleans

391 So.3d 123

24-65 (La.App. 5 Cir. 6/13/24)

Kathleen WELCH and Carroll Dewayne Welch

v.UNITED MEDICAL HEALTHWEST-NEW ORLEANS, L.L.C. and United Medical Healthcare Inc.

NO. 24-C-65

Court of Appeal of Louisiana, Fifth Circuit.

June 13, 2024

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 816-616, DIVISION "L", HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/RELATOR, KATHLEEN WELCH AND CARROLL DEWAYNE WELCH, David A. Abramson, Jessica L. Ibert, New Orleans, Beth E. Abramson

COUNSEL FOR DEFENDANT/RESPONDENT, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Elizabeth B. Murrill, Madeline S. Carbonette, Baton Rouge

COUNSEL FOR DEFENDANT/RESPONDENT, UNITED MEDICAL HEALTHWEST-NEW ORLEANS, LLC AND UNITED MEDICAL HEALTHCARE, INC., Aldric C. Poirier, Jr., Metairie, A. Rebecca Wilmore, New Orleans

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Timothy S. Marcel

GRAVOIS, J.

₁Plaintiffs/relators, Kathleen Welch and Carroll Dewayne Welch, seek this Court’s supervisory review of the denial of their Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional. For the reasons that follow, we deny this writ application.

FACTS AND PROCEDURAL BACKGROUND

In November 2019, Mrs. Welch was admitted to Tulane Medical Center for treatment of acute pancreatitis and diabetic ketoacidosis. Upon discharge, she was admitted to Bridgepoint Healthcare LA, LLC, d/b/a Bridgepoint Continuing Care Hospital for rehabilitative care. While at Bridgepoint, Mrs. Welch developed pressure ulcers. On April 16, 2020, Mrs. Welch was discharged from Bridgepoint and admitted to United Medical Physical Rehabilitation Hospital, where she continued to suffer with pressure ulcers. Mrs. Welch was discharged from United Medical on May 6, 2020.

On December 24, 2020, plaintiffs filed a request for a medical review panel with the Louisiana Patient’s Compensation Fund ("PCF") against Bridgepoint, United Medical, and Mrs. Welch’s treating physicians; however, the PCF notified plaintiffs that United Medical was not a qualified healthcare provider. Thereafter, on April 13, 2021, plaintiffs filed a petition for damages, naming as defendants United Medical Healthwest-New Orleans, LLC and United Medical Healthcare, Inc. (hereinafter collectively "United Medical). Plaintiffs alleged that as a result of United Medical’s negligence, Mrs. Welch developed large, open pressure wounds to her back and sacrum and suffered significant pain and suffering as a result.

In response, United Medical filed a peremptory exception of no cause of action, asserting plaintiffs do not have a cause of action against United Medical because of immunity provided under the Louisiana Health Emergency Powers Act, La. R.S. 29:771, et seq. Specifically, La. R.S. 29:771(B)(2)(c)(i) provides that during a state of a public health emergency, a healthcare provider shall not be civilly liable for causing injury to any person except in the event of gross ₂negligence or willful misconduct. United Medical argued that plaintiffs failed to state a cause of action since the allegations of negligence occurred during a state of public health emergency pursuant to the COVID-19 pandemic and plaintiffs did not assert a claim for gross negligence or willful misconduct. Plaintiffs opposed the exception and argued, among other things, that La. R.S. 29:771(B)(2)(c)(i) is unconstitutional.

Following a hearing, the trial court granted United Medical’s exception of no cause of action, dismissing plaintiffs’ petition and the action in its entirety without prejudice. On appeal, this Court found that the trial court did not err in finding that the immunity provided by La. R.S. 29:771(B)(2)(c)(i) applied in this case and United Medical properly proved beyond a preponderance of the evidence that the alleged negligence occurred during a public health emergency, but did not rise to the level of gross negligence. Additionally, this Court found that the constitutionality of La. R.S. 29:771(B)(2)(c)(i) was not before this Court at that time, since the Attorney General had not been notified by certified mail of the proceeding, nor did the trial court issue a ruling on the constitutionality of the statute. Accordingly, this Court affirmed the trial court’s final judgment granting United Medical’s peremptory exception of no cause of action and dismissing United Medical without prejudice, but remanded the matter to allow plaintiffs the opportunity to properly challenge the constitutionality of La. R.S. 29:771(B)(2)(c)(i), and for the trial court to rule on the constitutionality of La. R.S. 29:771(B)(2)(c)(i). Welch v. United Med. Healthwest-New Orleans, L.L.C, 21-684 (La. App. 5 Cir. 8/24/22), 348 So.3d 216.

On remand, plaintiffs filed a first supplemental and amending petition, adding as an additional claim that La. R.S. 29:771(B)(2)(c)(i) is unconstitutional. Plaintiffs claimed that La. R.S. 29:771(B)(2)(c)(i) is unconstitutional because it: (1) violates due process and the adequate remedy provision of La. Const. Art. I, § 22; (2) is overbroad since it applies to healthcare providers who may be rendering care un- related to the public health emergency; and (3) is a prohibited special law. Subsequently, United Medical filed peremptory ₃exceptions of no cause of action and res judicata. Plaintiffs filed a Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional. The Attorney General was properly notified and filed a memorandum in response. United Medical responded as well, claiming that its exceptions should be considered prior to plaintiffs’ motion. All three matters came for hearing on November 13, 2023. The trial court considered the Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional first. Following arguments, the trial court denied the motion and pretermitted ruling on the exceptions. A written judgment was signed on November 28, 2023 denying the Motion to Declare La. R.S. 29:771(B)(2)(c)(i) Unconstitutional.

ANALYSIS

[1–4] All statutory enactments are presumed constitutional. Carver v. Louisiana Dep’t of Pub. Safety, 17-1340 (La. 1/30/18), 239 So.3d 226, 230. The burden of establishing unconstitutionality rests upon the party who attacks the statute. State v. Lee, 22-01827 (La. 9/8/23), 370 So.3d 408, 412, reh’g denied, 22-01827 (La. 10/19/23), — So.3d —, 2023 WL 6885834. The burden plaintiffs carry in challenging the constitutionality of a statute is a heavy burden. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Carver, supra. The standard of review in determining the constitutionality of a statute, a question of law, is de novo. See State v. Eberhardt, 13-2306 (La. 7/1/14), 145 So.3d 377, 380.

In 2003, the legislature enacted the Louisiana Health Emergency Powers Act ("LHEPA"), La. R.S. 29:760, et seq. The purpose of the LHEPA is to protect the health and safety of the citizens of Louisiana by allowing the state to have "the ability to respond, rapidly and effectively, to potential or actual public health ₄emergencies." La. R.S. 29:761(A).¹ In eluded in the LHEPA is La. R.S. 29:771(B)(2)(c)(i), which provides:

During a state of public health emergency, no health care provider shall 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.

On March 11, 2020, Louisiana Governor John Bel Edwards declared a public health emergency in Louisiana due to the COVID-₅19 pandemic. The public health emergency was extended through March 16, 2022.

[5] Plaintiffs argue that La. R.S. 29:771(B)(2)(c)(i) is unconstitutional since it violates the due process and adequate remedy provisions of La. Const. Art. I, § 2 and La. Const. Art. I, § 22. They contend that this statute deprives a victim of his or her cause of action, a vested property right, without due process. Further, plaintiffs assert that the "blanket immunity" provided for healthcare providers during a public health emergency does not serve a compelling state interest, leads to absurd results, and is not narrowly tailored to serve the objective of protecting citizens during a public health emergency. They contend there is no rational basis for providing immunity to those who are not providing care related to the public health emergency itself. Since Mrs. Welch’s care was not COVID-19-related, plaintiffs claim that allowing United Medical to claim immunity under the LHEPA denies them an adequate remedy by due process of law since they are denied their day in court unless they are victims of gross negligence.

La. Const. Art. I, § 22 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

[6, 7] La. Const. Art. I § 2 guarantees freedom from the deprivation of life, liberty, or property without due process of law. This guarantee is protection from arbitrary and unreasonable action. When the statute in question does not affect fundamental rights, but rather is merely economic or social regulation, it need only have a rational relationship to a legitimate governmental interest. Med Express Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La. 11/25/96), 684 So.2d 359, 365. The right of malpractice victims to sue for damages is not a fundamental constitutional right. Everett v. Goldman, 359 So.2d 1256 (La. 1978); Oliver v. Magnolia Clinic, 11-2132 (La. 3/13/12), 85 So.3d 39.

₆As stated earlier, the purpose of the LHEPA is to protect the health and safety of the citizens of Louisiana during a public health emergency. During a public health emergency, especially...