COVID-19 Case Presents Interesting Constitutional and Procedural Issues

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).

In a very important ruling by the Louisiana Supreme Court, a tort defendant is no longer liable for any “actual charges” by medical providers above the amount paid by a Workers Compensation insurer pursuant to promulgated Workers Compensation fee schedule . In Simmons v. Cornerstone Investments, LLC, 2018-cc-0735 (La. 5/18/19), the court concluded:

“…the amount of medical expenses charged above the amount actually incurred is not a collateral source and its exclusion from the purview of the jury was proper.” See http://www.lasc.org/opinions/2019/18-0735.CC.OPN.pdf

The court conducted a detailed analysis of the development of the collateral source rule under applicable jurisprudence noting that the genesis of the collateral source rule:

“Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer.” See Louisiana Dept. of Transp. & Dev. v. Kansas City Southern Railway Co., 02-2349, p. 6 (La. 5/20/03), 846 So.2d 734, 739.

Essentially, the court asks two questions when assessing whether the collateral source rule should apply. First, does the claimed benefit arise from some payment, wage deduction or other contribution by the Plaintiff that would diminish the plaintiff’s patrimony? Second, will the goal of tort deterrence be promoted by allowing the windfall? In a series of cases culminating in the case at bar, the court has been limiting the application of the collateral source rule in a number of contexts.

The court in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, found that the collateral source rule did not apply when Medicaid was the payor such that the defendant could not be responsible for any amounts above what Medicaid paid to the provider. The court reasoned that it would be “unconscionable” to require taxpayers to pay the bills and then let a plaintiff recover the full undiscounted medical expenses and “pocket the windfall.” The court continued by noting in “Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, this court found the collateral source rule did not apply to prevent the plaintiff’s uninsured motorist carrier from receiving a credit for workers’ compensation benefits paid by her employer, even though the plaintiff paid for the UM coverage herself.” In Hoffman v. 21st Century North American Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, the court held that the collateral source rule does not apply to attorney-negotiated medical discounts. The court also looked at the US 5^th Circuit in Deperrodil v. Bozovic Marine, Inc., 842 F.3d 353 (5th Cir. 2016), that the collateral source rule does not apply above any amounts actually paid by the employer in the context of the LHWCA.

In each of the instances outlined, the court noted that the patrimony of the plaintiff was not impacted by limiting recovery to the amount of medical bills actually paid. Moreover, the court noted that the goal of tort deterrence is not negatively impacted, and that allowing a plaintiff to recover a windfall in this context is tantamount to an award of punitive damages that are not recoverable absent statutory authority which is not present in this context. The Simmons decision now extends that same logic to cases where a Workers Compensation insurer has paid the medical benefits pursuant to the Louisiana Workers Compensation Law.

This ruling will have significant impact on the evaluation, settlement and trial of tort cases that have corresponding Workers Compensation claims.

Submitted by John P. Wolff, III (Partner)

The Louisiana Supreme Court recently upheld as constitutional two statutes requiring the registration of sex offenders even when applied to a person who was found not guilty by reason of insanity. See State of Louisiana v. Isaiah Overstreet, Jr., 12 - 1854 (La. 3/19/13). While an ultimate resolution of this issue would cause the Court to measure the asserted personal interests of the defendant against the public's interest in safety, the defendant's challenges were rejected because he failed to properly raise and brief the constitutional issues.

In Overstreet, it was factually established that the defendant attempted to force himself upon co-eds at two universities. After his arrest, he was diagnosed as schizophrenic and consistently denied any recollection of the crimes. Overstreet was found not guilty by reason of insanity and continued in state-run mental facilities for over a decade until filing a Motion to be Released in 2010. The motion was denied as a consequence of his refusal to participate in sex offender treatment.

When he inquired about the potential release to a group home, he was advised that he would have to register as a sex offender. He then moved to declare LSA-R.S. 15:541(7) and 15:542 (the sex offender registration statutes) unconstitutional.

The Trial Court struck down the statutes as an affront to the Louisiana Constitution, giving conflicting oral and written reasons in support of the ruling. The Trial Court later explained in a per curiam opinion that the primary concern is one of capacity and that it would be unjust to require registration from one lacking capacity to do so.

At the Supreme Court, the defense attorney argued that an application of the registration statutes to Overstreet would violate due process and equal protection because he had not been convicted as a sex offender. In response, the State argued that a finding of not guilty by reason of insanity is not equivalent to an acquittal and that the registration statutes are not punitive but instead are designed to protect the public. The State contended that the defendant was a "sex offender" irrespective of the not guilty by reason of insanity defense.

The Louisiana Supreme Court did not address the merits of these positions. Instead, the Court held that the defendant had not sufficiently particularized the grounds for a constitutional challenge. The Court reasoned that legislation is presumed constitutional. As a result, if a party desires to challenge the constitutionality of a statute, that party must raise the unconstitutionality and specifically plead the basis of the alleged unconstitutionality.

The Overstreet Court reversed the Trial Court because it is the challenger's duty to sufficiently raise the constitutional objections. In so doing, the Court disregarded the Trial Court's sua sponte ruling ("on its own motion") that the sex offender registration statutes were unconstitutional because the Trial Court did not have the authority to raise these challenges.

While Overstreet did not resolve the ultimate issues of the constitutionality of the sex offender statutes in this setting, it did define the issues which would likely guide its decision should the issue ever be properly raised before the Court.