Kids and Pets Left in Vehicles: Louisiana Legislature Makes Rescuers Immune, Maybe

Louisiana courts traditionally have ruled claims of administrative negligence fell outside of the purview of the Louisiana Medical Malpractice Act (LMMA). Courts found the LMMA applied strictly to cases “arising from medical malpractice.” In cases where Plaintiffs argued medical administrative failure, courts applied general tort law. This meant that the LMMA’s key protections— the statutory cap on damages and the requirement for a pre-suit medical review panel— did not apply to claims based on alleged administrative failures.

The following cases illustrate this point:

• In LaCoste v. Pendleton Methodist Hosp., Plaintiff alleged a hospital failed to maintain its life-support equipment and implement emergency evacuation plans.^
• In Blevins v. Hamilton Med. Ctr., Inc., Plaintiff alleged the hospital failed to provide him with equipment in proper working condition, to keep his bed in lowest position with wheels locked, and to properly instruct him on proper use and safety of his bed.*
• In Scio v. University Med. Mgmt. Corp., Plaintiff alleged the defendant failed to implement policies to ensure that follow up appointments were properly communicated.^^
• In Billeaudeau v. Opelousas Gen. Hosp. Auth., Plaintiff alleged the hospital was negligent in its credentialing of a doctor in the emergency department.**

The Louisiana Supreme Court used the “Coleman factors” established in Coleman v. Deno^^^ to determine whether the alleged conduct in these cases could constitute “malpractice.” These factors assess (1) whether the alleged conduct is treatment-related, (2) whether expert testimony is required to examine the claim, (3) whether assessment of the patient’s condition was involved, (4) whether it involves a physician-patient relationship, (5) whether the injury would have occurred absent treatment, and (6) whether the act was intentional. Considering these factors in each of the cases outlined above, the Court found the LMMA did not apply.

However, recent legislative amendments expanded the LMMA’s scope and raise questions about how these cases would be decided now. Effective August 1, 2025, new amendments broaden the definitions of “health care” and “malpractice” under La. R.S. 40:1231.1 to include administrative and managerial actions that are necessary for delivering medical care. While the full text of the new statute should be considered when evaluating any pending or potential claims, a summary is provided here.

Under the amended statute:

“Health care” now includes any act, treatment, “administration, service, or care related to policies and procedures and the administration thereof, staffing, custodial services by licensed or certified staff…” Further, the amendment expressly provides that the definition of health care “includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

Additionally, under the amendment, the definition of “malpractice” now explicitly covers all acts tied to staffing and expressly includes “all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

These amendments suggest the cases outlined above may have been decided differently if they were filed today. However, it remains to be seen how courts will apply these changes moving forward.

References:

^ LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07), 966 So. 2d 519.

* Blevins v. Hamilton Med. Ctr., Inc., 2007-127 (La. 6/29/07), 959 So. 2d 440, 442, 443.

^^ Scio v. University Med. Mgmt. Corp., 19-1319 (La. 10/21/19), 280 So. 3d 1135.

** Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So. 3d 513, 515.

^^^ Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So. 2d 303, 316.

What happens when someone leaves money in a will to a charity that has closed its doors by the time the will is probated? In this strange circumstance, a court may apply the “cy pres doctrine” to answer this question. Cy pres is a French term which loosely translates to mean “as near as possible.” In modern litigation, cy pres is not only used to distribute charitable donations, but also to distribute millions of dollars left over in class action settlements.

In the example above, a court may use cy pres to transfer the donated money to a charity similar to the one that had shut down. In class actions, there are often funds left over when not enough people register to receive money under a settlement. In this situation, the court will use cy pres to decide where this money goes; but that decision is a tricky one. Courts will sometimes direct these funds to a governmental entity loosely related to what the lawsuit was about. Other times these funds will go to a charity. Whatever the choice, there are usually complaints.

In one case, a nationwide class of AOL customers agreed to a settlement in a class action filed in California. Even though class members lived all over the country, the cy pres funds went to a legal aid office in Los Angeles, where the judge’s husband served as a director. This raised some eyebrows.

In another case, Kellogg’s settled a class action filed because its advertisements claimed that frosted mini-wheats improved kids’ brain power, which -sadly- turned out not to be true. Those cy pres funds initially went to a charity designed to feed the poor. However, the court later ruled that the funds should have gone to a group that protected the public from false advertising.

As more and more cases like these garnered attention, rules were passed as to how to distribute these funds. Generally, these rules require some connection between the issues in the lawsuit and the mission of the group that gets the funds. While the United States Supreme Court has yet to address these issues, Chief Justice Roberts recently indicated that the Court may be ready to put its stamp on cy pres.

We may be “as near as possible” to some clarity in the murky law of cy pres.

The longstanding rule that the analysis for "piercing the corporate veil" of an LLC is substantially the same as the analysis for piercing the veil of corporations has been called into question by the recent Louisiana Supreme Court decision in Ogea v. Travis Merritt and Merrit Construction, LLC, 2013-1085, --- So.3d ---. In Ogea, the Court addressed "the extent of the limitation of liability afforded to a member of an LLC" and the statutory basis for exceptions to this limited liability.

Typical of a veil piercing case, the Ogea Court began its discussion by citing familiar Louisiana cases on the topic: Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164 (La. 1991) and the more recent Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 11-2254 (La. App. 1 Cir. 7/10/12), 97 So.3d 595. However, the similarities stopped there.

The Court noted that traditional veil piercing doctrine was not invoked by the lower courts or the plaintiff. Instead, the Court's analysis turned on the interpretation of an infrequently cited statute within Title 12 that addresses the limitation of liability for LLC members. La. R.S. 12:1320(A) states that the liability of members and managers of an LLC "shall at all times be determined solely and exclusively by the provisions of this Chapter." Subsection (B) provides that members and managers are generally not liable for the debts, obligations, or liabilities of the LLC. Subsection (D) prescribes the exceptions to this limitation of liability, to include fraud, breach of professional duty, and any other negligent or wrongful act by the member or manager.

Addressing this statute as a matter of first impression, the Ogea Court applied the statute to the facts of the case. Merritt Construction, LLC was hired to build a home for plaintiff, Mary Ogea. As part of the process, Ms. Ogea requested that she have a friend prepare the site for the foundation. Travis Merritt, the sole member of Merritt Construction, LLC, informed Ms. Ogea that having someone else prepare the site would waive the warranty. Mr. Merritt subsequently operated the bulldozer to prepare the site for a subcontractor to pour the concrete slab. A dispute arose when a concrete contractor informed Ms. Ogea of problems with the home's foundation. Under these facts, the Court concluded Mr. Merritt was not personally liable under the exclusive exceptions to limited liability found in La. R.S. 12:1320(D).

The first exception, fraud, was rejected because no evidence in the record supported a finding that Mr. Merritt committed fraud.

Turning to the next exception, the Court also rejected the argument that plaintiff breached a professional duty as the sole member of the construction company. The professions recognized in Louisiana's corporate laws do not include individuals who perform construction work. Thus, Mr. Merritt could not breach a "professional duty" as contemplated by the statute. The Court also noted that the contract at issue only recognized Merritt Construction, LLC as a licensed contractor and did not reference any contractor's license held by Mr. Merritt personally.

Finally, the Court addressed the final exception to limited liability: "negligent or wrongful act." Plaintiff asserted that the term "negligence" in the statute only required proof of a tort by the individual. The Court quickly rejected this argument, noting that such an interpretation would improperly expand the liability of LLC members.

Rather, the Court set forth four factors to assist in the analysis under the last "negligence" exception: 1) whether a member's conduct could be fairly characterized as a traditionally recognized tort; 2) whether a member's conduct could be fairly characterized as a crime, for which a natural person, not a juridical person, could be held culpable; 3) whether the conduct at issue was required by, or was in furtherance of, a contract between the claimant and the LLC; and 4) whether the conduct at issue was done outside the member's capacity as a member.

It appears from the Ogea Court's focus that the prior analysis for "piercing the veil" of an LLC has perhaps been set aside and replaced with a new analysis which considers the exceptions to limited liability listed in La. R.S. 12:1320. However, the Court failed to expressly state that the prior analysis is improper and therefore no longer applicable. For now, it appears that the rules for piercing the veil of an LLC have changed but the true impact of Ogea remains to be seen.