Court Addresses the Reach of the Louisiana Health Emergency Powers Act’s Immunity Provision for Claims Against Health Care Providers

Defendants often request an AMO (“Additional Medical Opinion,” formerly called “IME”) under La. Code of Civil Procedure article 1464 which grants the courts power to order the examination of a plaintiff’s physical or mental condition when in controversy. Increasingly, plaintiff’s counsel will object outright to such examinations or seek to impose onerous restrictions designed to limit or prevent the examination. In Sistrunk v. Florida Marine, LLC, et al, 20-0771 (La. App. 1 Cir. 9/28/20), 2020 WL 575645, the First Circuit rejected limitations sought by the plaintiff and imposed by the trial court.

In Sistrunk, the plaintiff alleged brain injury and psychological problems caused by a blow to the head. In view of the seriousness of the alleged injuries, the defense requested examinations by a neurologist, neuropsychologist, neurosurgeon, and psychiatrist. In response, the plaintiff agreed to examinations but only in areas plaintiff planned to offer medical testimony and under restrictions to include the presence of a third-party and audio or video recording. Although the trial court ordered the AMOs to move forward, it allowed the presence of a third-party who could then audio or videotape the exams. With respect to the neuropsychological examination, the trial court rejected observation by a third-party based upon industry standards which do not allow for such observation.

The defense in Sistrunk sought review from the First Circuit. Without comment, the First Circuit rejected the condition imposed by the trial court that the exams be captured through audio or videotaping. Sistrunk joins similar decisions such as Henry v. Barlow, 06-283 (La. App. 3 Cir. 8/9/06), 937 So. 2d. 895 which likewise prevented audio or videotaping of AMOs. In Henry, the court reasoned that the recording of an AMO would restrict the number of physicians willing to participate.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.

The Louisiana Supreme Court has ruled that St. Tammany Parish must pay for hurricane clean-up services even though it had no formal contract with the party that did the work. See USA Disaster Discovery, Inc. v. St. Tammany Parish Government, 2013-0656, -- So.3d ---.

Fallen trees and loose debris were familiar sights across Louisiana in the aftermath of Hurricane Katrina. Immediately after the storm, emergency protocols were followed to rescue those trapped in their homes or in other buildings. To perform search and rescue, trees and debris had to be cleared. This duty fell to the Sheriff's office under St. Tammany's emergency operation plan. However, neither the Parish nor the Sheriff's office had the necessary resources. Therefore, the Parish contracted with various entities to help clear the debris.

Two individuals, acting as a joint venture, approached a representative of the Sheriff's office and volunteered to assist in the removal of the debris. Although these individuals did not have a contract with the Parish, they were "confident" the Parish would pay them for their services. As such, they went to work with no assurance of payment. The confident volunteers later sent bills to the Parish and the Sheriff's office, but both refused to pay.

The joint venture incorporated itself as USA Disaster Recovery, Inc. ("USA") and sued the Parish and Sheriff to collect the unpaid bills. The trial court found that USA provided the Parish with valuable services following the storm. Under a theory of "unjust enrichment," it held that the Parish had to pay for the work.

The Supreme Court's recent ruling reaffirmed the five elements necessary to show that one party was "unjustly enriched" through the action of another, namely:

1) an "enrichment" of one party;

2) an "impoverishment" of the other;

3) a connection between the enrichment and the impoverishment;

4) no justification or cause for the enrichment and the impoverishment; and,

5) no other legal remedy available to the plaintiff.

On appeal, the appellate court examined the facts and held that unjust enrichment was not available because USA did not factually demonstrate criteria #2, #4 and #5. In short, the appellate court found that USA did the work at its own risk, knowing that payment was not guaranteed. Therefore, its "impoverishment" was not established.

The Supreme Court disagreed and reinstated the trial verdict. An appellate court is to review a trial court's factual findings under a "manifest error" standard. In USA Disaster, the Supreme Court held that the appellate court incorrectly substituted its own factual findings for those of the trial court. As a result of the deference to be given to a trial court's findings of fact, the "volunteers" in USA Disaster were rescued by an uneasy application of the unjust enrichment doctrine.

InNiang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir.12/4/19), - - - So.3d - - -, the Fourth Circuit declined to expand the “loss ofchance of survival” cause of action to non-medical defendants. Despite astatute which arguably supported such a cause of action under case facts, theFourth Circuit felt constrained to reject the claim.

OnMarch 7, 2017, Mouhamadou Niang collapsed while playing basketball at aYMCA. Mrs. Niang was certified in cardiac life support, and requested anautomated external defibrillator (“AED”) to attempt to resuscitation. Mrs. Niang was advised that an AED machine was not available. Thereafter,Mr. Niang was transported to University Medical Center where he died on March11, 2017 secondary to cardiac arrest.

Mrs.Niang sued the YMCA for failing to have an AED machine on premises and assertedmultiple claims including a loss of chance of survival claim. Shecontended that the lack of the defibrillator contributed to her husband’sdeath. Under La. R. S. 40:1137.3, all “physical fitness facilities” suchas the YMCA are required to have an AED available.

TheYMCA filed a Motion for Partial Summary Judgment which was granted. Inits reasons, the trial court held that the “loss of chance” cause of action waslimited to claims raised in a medical malpractice context. The FourthCircuit affirmed.

TheFourth Circuit found that, although styled as a Motion for Partial SummaryJudgment, the YMCA had actually raised an Exception of No Cause of Action andtherefore analyzed the issue as a pure question of law. The FourthCircuit reviewed prior Louisiana Supreme Court decisions providing a right torecover damages for a loss of chance of survival in the medical malpracticecontext including the decision in Hastings v. Baton Rouge Gen. Hosp., 498So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Courtidentified a cause of action where a stab wound victim with weak vital signswas transferred from the hospital after the patient lacked insurance. The Hastingscourt commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

TheFourth Circuit identified no cases directly “on point” when the defendant wasnot a medical practitioner. Therefore, the Fourth Circuit gaveconsideration to a noted Oklahoma decision in Hardy v. Southwestern BellTel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. Thecourt in Hardy considered the public policy implications associated withexpanding the loss of chance of survival claim to non-medical cases andreasoned that the policy concerns which justify a reduced burden of causationin medical malpractice claims do not transfer to ordinary negligencecases. The cause of action against medical providers is supported by the“special relationship” of the physician and the patient. No suchrelationship exists in a non-medical setting.

Citingto Hardy, the Niang court determined that allowing a loss ofchance of survival claim with general negligence would allow for improperspeculation as to a person’s chance of survival. Identifying nocontrolling cases and the lack of any statute creating a cause of action innon-medical malpractice cases, the Niang court concluded that loss ofchance of survival claims are not supported outside of the medical context.

Collin is a Keogh Cox partner who litigates injury,commercial, and legal malpractice disputes. He lives in nearby Zachary,Louisiana with his wife Melissa and three all too active children. He is anoutdoorsman, a league tennis player, a cook, and a hobbyist writer.