Opinion
21-C-624
01-26-2022
IN RE: MEDICAL REVIEW PANEL PROCEEDING OF KATHLEEN WELCH IN RE KENNETH WILLIAMS, M.D.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U.SCHLEGEL, DIVISION "D", NUMBER 817-616
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED
Relator, Kenneth Williams, M.D., seeks review of the trial court's August 16, 2021 judgment denying his petition for declaratory judgment and failing to order Mr. Lee H.R. Chawla to instruct the medical review panel that a gross negligence standard should be applied to the medical malpractice claims asserted against Dr. Williams. Finding no reason to disturb the trial court's ruling at this time, we deny the writ application.
The underlying matter in this case arises out of several claims of medical malpractice that allegedly occurred both before and during a statewide public health care emergency declared by Governor Edwards pursuant to the Louisiana Health Emergency Powers Act ("LHEPA"), La. R.S. 29:760 et seq. Both the Louisiana Medical Malpractice Act ("LMMA") (currently codified in La. R.S. 40:1231.1, et seq.), which governs claims against private qualified health care providers, and the LHEPA, which governs the standard of care for acts of malpractice by health care providers operating under a declared state of public health emergency, are at issue. This case is currently in the pre-suit, medical review panel stage.
On March 11, 2020, Governor John Bell Edwards issued Proclamation Number 25 JBE 2020, stating: "Pursuant to the Louisiana Health Emergency Powers Act, La. R.S. 29:760, et seq., a statewide public health emergency is declared to exist in the State of Louisiana as a result of the imminent threat posed to Louisiana citizens by COVID-19, which has created emergency conditions that threaten the lives and health of the State." The statewide public health emergency declared on March 11, 2020, remains in effect today.
Respondents, Kathleen Welch and her husband, Carroll Welch, filed a request for a medical review panel, naming, among others, Dr. Kenneth Williamsas a defendant healthcare provider alleging he deviated from the standard of care in connection with medical treatment he provided to Kathleen between April 16, 2020, through May 6, 2020. Thereafter, the Patient's Compensation Fund notified Mr. Lee H.R. Chawla that he was selected as attorney chairman of the panel that would review the Welches' claims against Dr. Williams and the others.
The other named defendant healthcare providers include Bridgeport Healthcare LA, LLC, United Medical Physical Rehabilitation Hospitals ("UMRH"), and Dr. Michael Russo. Claimants later received confirmation from the Louisiana Patient's Compensation Fund and Medical Review Panel that UMRH was not a qualified healthcare provider under the Louisiana Medical Malpractice Act and, thus, not entitled to review by a medical review panel. Claimants subsequently filed a separate lawsuit against UMRH. UMRH filed a peremptory exception of no cause of action on June 1, 2021, which addressed legal issues that are similar to those raised herein. On August 23, 2021, UMRH's exception was sustained and the Welches' claims against it were dismissed with prejudice. A judgment to this effect by Judge Rowan has not yet been signed.
It is undisputed that the medical care and/or services rendered to Kathleen by Dr. Williams occurred during a state of public health emergency.
After the Welches filed a petition to institute discovery in the district court, counsel for Dr. Williams notified Mr. Chawla that because the alleged acts of malpractice against Dr. Williams occurred during a state of public health emergency declared by Governor Edwards pursuant to LHEPA, the physician panelists must be instructed to assess the Welches' allegations under the modified standard of care-"gross negligence or willful misconduct"-established by the statute. The LHEPA provides:
During a state of public health emergency, any health care providers shall not 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.La. R.S. 29:771(B)(2)(c).
Effective October 28, 2020, this subparagraph of the statute was amended as La. R.S. 29:771(B)(2)(c)(i) and provides that "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." La. R.S. 29:771(B)(2)(c)(i), Act 2020, 2ndEx.Sess., No. 30, § 1, eff. Oct. 28, 2020. The Act added La. R.S. 29:771(B)(2)(c)(ii) to include that during a state public health emergency declared to combat a contagious or infectious disease, no inpatient health care facility shall be liable to a member of the clergy for any civil damages related to or resulting from actual or alleged exposure when allowed access to the facility unless the health care facility failed to substantially comply with applicable procedures set forth by the Louisiana Department of Health.
In response, counsel for the Welches objected to any such instruction on the basis that the modified standard of "gross negligence or willful misconduct" established by the LHEPA is not part of the LMMA, and neither the LHEPA nor LMMA provide for any application of the LHEPA to the medical review panel proceedings delineated in the LMMA. Specifically, counsel asserted that there is no provision within the LMMA that would authorize the application of a gross negligence or willful misconduct standard, and any such instruction would be in derogation of the LMMA and potentially provide a basis to strike the medical review panel's opinion.
Mr. Chawla advised Dr. Williams' counsel that his duties as attorney chairman, as well as the instructions given to the expert panelists, are set forth in the LMMA and that, in his opinion, he does not have "latitude" to deviate from the LMMA. "[He] would need a judge to order [him] to instruct the expert panelists differently."
Thereafter, Dr. Williams filed a petition for declaratory judgment and motion to enforce compliance with the LMMA, requesting the district court to issue an order declaring, as a matter of law, that the standard of care as set forth in the LHEPA, namely La. R.S. 29:771(B)(2)(c)(i), shall be applicable to the Welches' allegations of medical malpractice that took place after the March 11, 2020 declaration of public health emergency. Dr. Williams also requested that an order be issued directing the attorney chairman to instruct the medical panelists to assess the allegations of malpractice under a modified gross negligence standard of care applicable under the LHEPA.
Bridgepoint Healthcare LA, LLC, who allegedly provided medical care to Kathleen both before and after a state of public health emergency was declared, filed a memorandum in support of Dr. Williams' petition and motion.
The Welches excepted to and answered Dr. Williams' petition and opposed his motion on the basis that the LMMA does not provide for the filing of a declaratory judgment action during the pendency of a medical review panel, which is a non-judicial panel phase, nor does the LMMA provide that the attorney chairman-who functions primarily as an administrator to set up the panel- instruct the physician panelists as to the applicable standard of care. According to the Welches, citing Perritt v. Dona, 02-2601 (La. 7/2/03), 849 So.2d 56, 65, it is within the sole purview of the physician panelists to determine the appropriate standard of care to be applied. Additionally, the Welches argued that health care providers should only be permitted to invoke the modified standard of care under the LEHPA as an affirmative defense of qualified immunity in answer to a petition after the medical review panel process is complete and a lawsuit has been filed.
In reply, Dr. Williams argued that La. R.S. 40:1231.8(C)(6) provides that an attorney can petition the court to enforce the terms of the LMMA. Additionally, Dr. Williams asserted that a declaratory judgment is appropriate in this situation because there is a "conflicted issue of law, the parties are at odds," and the attorney chairperson is seeking the court's guidance.
The matter came for hearing on Dr. Williams' petition and motion on July 26, 2021. At the close of the hearing, the trial judge overruled the Welches' exceptions, but still denied Dr. Williams' petition for declaratory judgment. The Court granted Dr. Williams' motion to enforce compliance with the LMMA pursuant to La. R.S. 40:1231.8(C)(6). This judgment was reduced to writing in a judgment dated August 16, 2021, wherein the trial court ordered that the medical review panel attorney chairman:
'[H]as the duty to provide legal advice to the panel and to advise them on what standards of care may be applied' and is ordered to 'consider the governor's order and any and all other case law that he or she may be instructive on what standard of care to apply in this case.'
In oral reasons, the trial judge explained its ruling by stating that the court does not have authority under the LMMA to intrude into a non-judicial proceeding and should not "insert itself into every single legal question that is raised at the time that it is at the panel [stage]." The court stated that "[c]learly the Court believes that a declaratory judgment from this Court is not appropriate because it is not this Court's job to pronounce that standard of care, the Court finds that that is the duty of the panel, and the chairman certainly has a duty to provide legal advice and provide an answer to the medical review panel of what he or she believes that this standard of care is and what standard of care should be applied and certainly can and should consider the governor's emergency order." The trial court further stated:
The trial court acknowledged that under the LMMA, there are two specific situations where a court can get involved during the pre-suit phase and that is "when there is an issue regarding a 'no right of action' or the question of prescription."
Whether the panel finds that that's applicable in this case is not the question this Court's answering, I'm simply stating that, in accordance with the statute, attorney acting as chairman, (D)(5), 1231.8(D)(5), "The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel." The question has been raised as to what proper standard of care should be applied and this Court will grant the Motion to Enforce Compliance with the Medical Malpractice Act and order the attorney to consider the governor's order and any and all other case law that he or she may be instructive on what standard of care to apply in this case.
In response to the question posed by counsel for the Welches-"[I]s the panel chair to instruct the panelist that 29:771 applies?"-the Court answered:
No, that's not the Court's ruling. The Court's ruling is, if [the panelists] find it's appropriate, [sic] can certainly deviate. I don't believe it's a deviation from the MMA to apply that standard of care if the panel and that attorney decide that it's applicable in this case.
That attorney suggested that [he] cannot deviate and … believe[s] it's a deviation from the MMA to consider. This Court is saying I do not believe it is a deviation to consider [the Governor's] orders and that case law to determine the appropriate standard of care. I'm not making a ruling on what that appropriate standard of care is or looks like. … I'm ordering the …chairman attorney to consider the case law, the governor's order and determine whether or not he should be advising the panel on the application of the standard of care.
In his writ application, Dr. Williams asserts the trial court erred in failing to declare, as a matter of law, that the standard for civil liability of a health care provider found in La. R.S. 29:771(B)(2)(c) shall be applicable to any of the Welches' allegations of malpractice taking place after March 11, 2020, the date of Governor Edward's declaration of public health emergency. Dr. Williams also contends that while the trial court correctly granted his motion to enforce compliance with the LMMA, the court erred by ordering the attorney chairman to only consider the Governor's executive order and the relevant law. Because the dates of alleged malpractice by Dr. Williams fell after the Governor's March 11, 2020 declaration of public health emergency, Dr. Williams argues the trial court should have gone one step further by ordering Mr. Chawla to instruct the physician panelists that the heightened standard of care under La. R.S. 29:771(B)(2)(c) should be applied, and, as such, the medical review panel should determine whether or not Dr. Williams' care of Kathleen was grossly negligent or that his misconduct was willful.
The Welches filed a response to Dr. Williams' application re-urging the arguments they presented in the trial court in opposition to Dr. Williams' petition for declaratory judgment and motion to enforce compliance with the LMMA as outlined above, in addition to those made in their writ application filed in In re: Medical Review Panel Proceeding of Kathleen Welch, Case No. 21-C-622. Amicus Curiae briefs have also been filed in this matter on behalf of co-defendant, Bridgepoint Healthcare LA, LLC d/b/a Bridgepoint Continuing Care Hospital and Medpro Group, and on behalf of Ochsner Clinic Foundation, who join in the arguments in support of Dr. Williams' application; and on behalf of the Louisiana Association for Justice, who joins in the Welches' opposition to Dr. Williams' application.
Discussion
A. Petition for Declaratory Judgment
The LMMA provides that a health care provider may raise peremptory exceptions of no right of action or prescription "at any time without need for completion of the review process by the medical review panel." La. R.S. 40:1231.8(2)(a). Although the LMMA includes limited provisions authorizing the parties to seek relief from a trial court during the pendency of the panel proceedings, we find no authority empowering the trial court to interject itself into the non-judicial proceeding and dictate what standard of care the panel shall apply to particular allegations of malpractice when determining whether the health care provider's care deviated from that standard of care. See Medical Review Panel of Berryhill v. Dunham, 21-99 (La.App. 4 Cir. 4/28/21), 317 So.3d 897, 899; In re Medical Review Panel for Brock, 19-480 (La.App. 4 Cir. 6/19/19), 274 So.3d 1275.
Further, while the pertinent statutory provision, La. R.S. 40:1231.8(G), clearly contemplates that different "standards of care" may apply, the LMMA places the responsibility upon the attorney panel member for advising the panel members "concerning matters of law" and regarding "any legal question involved in the review proceeding"-which would include any applicable standards of care mandated by statute. See La. R.S. 40:1231.8(5)(b) and La. R.S. 40:1231.8(D)(5). Accordingly, we find no error in the trial court's denial of Dr. Williams' petition for declaratory judgment.
B. Motion to Enforce Compliance with LMMA
Likewise, we find no error in the trial court's judgment ordering Mr. Chawla to consider the Governor's executive order declaring a public health emergency, as well as all instructive case law, when complying with his duty under the LMMA as attorney chairman to advise the physician panelists regarding the standards of care that may apply to the Welches' allegations of malpractice against Dr. Williams. If the trial court were to order Mr. Chawla to instruct the panel that the heightened standard of care in LHEPA must be applied by the panel in considering the alleged malpractice of Dr. Williams, this would be tantamount to the trial court interjecting itself into a non-judicial proceeding and issuing a declaratory judgment, which we have already determined the trial court does not have the authority to do under the LMMA.
See Lejeune v. Steck, 13-1017 (La.App. 5 Cir. 5/21/14), 138 So.3d 1280, writ denied sub nom., Daigle v. Steck, 14-1408 (La. 10/3/14); see also Fletcher v. Select Specialty Hospital of New Orleans, Inc., 10-C-590 (La.App. 5 Cir. 7/30/10) (unpublished writ action), writ denied, 10-2000 (La. 11/5/10), 50 So.3d 808.
It is well-settled that in a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the standard of care applicable to the charged physician, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiff's injuries. Pfiffner v. Correa, 94-992 (La. 10/18/94), 643 So.2d 1228, 1232-33; Shepherd v. Baton Rouge Cardiology Center, 17-321 (La.App. 1 Cir. 11/1/17), 234 So.3d 920, 926. The applicable standard of care in a medical malpractice action is determined from the particular facts and circumstances of each case. Fischer v. Megison, 07-1023 (La.App. 5 Cir. 5/27/08), 986 So.2d 95, 101. Where there is disagreement amongst the panel as to the standard of care applicable to a case, the trial court's determination is given a great deal of deference. McCarter v. Lawton, 09-1508 (La.App. 4 Cir. 7/21/20), 44 So.3d 342, 347.
Moreover, while the report of the medical review panel's opinion "is admissible, expert medical evidence that may be used to support or oppose any subsequent medical malpractice suit," the report "shall not be conclusive" in establishing a health care provider's liability at trial. See La. R.S. 40:1231.8(H); see also McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La. 7/1/11), 65 So.3d 1218, 1226-27; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 890. The opinion of the medical review panel is equivalent to expert medical evidence. McGlothin, 65 So.3d at 1226-27. As such, it is subject to review and can be contested by an opposing viewpoint. Rhodes v. Schultis, 13-663 (La.App. 5 Cir. 4/23/14), 140 So.3d 331, 337, writ denied, 14-1081 (La. 9/12/14), 148 So.3d 937. The trial court should evaluate the opinion of the medical review panel by the same rules which are applicable to other expert witnesses. Specifically, the trial court is not bound by the opinion and, as the trier of fact, is free to accept or reject any portion or all of the opinion. Id. Thus, if the trial court in a subsequent malpractice action determines that the medical review panel considered Dr. Williams' alleged malpractice based on an erroneous standard of care, it is free to reject the panel's opinion. In short, the opinion of the panel is not binding on the trial court and nothing in the LMMA prevents either party from presenting evidence or testimony that contradicts the panel's opinion, including the panel's application of an erroneous standard of care.
For the foregoing reasons, and on the showing made, we find no reason to disturb the trial court's judgment at this time. This writ application is denied.
SMC
WINDHORST, J., CONCURS WITH REASONS
I concur with the denial of the writ as prayed, but for different reasons. Relator assigns as error the trial court's refusal to order the attorney chairman to instruct the medical review panel (hereafter "the panel") on the correct "standard of care." Relator uses the term "standard of care" throughout, and again in his prayer for relief. Strictly speaking, the trial court cannot instruct the panel on the medical "standard of care," which is a medical determination within the expertise of the panel. The trial court can, however, order the attorney chairman to properly advise the panel as to the higher burdens of gross negligence or willful misconduct, which are the greater deviations from the appropriate medical standard of care required by La. R.S. 29:771 B(2)(c)(i), and which clearly apply to the panel's consideration of this case.
I agree insofar as it is the duty of the health care providers on the panel to determine the appropriate medical standard of care which is due, and whether that medical standard of care has been breached. La. R.S. 40:1231.8 G of the Louisiana Medical Malpractice Act provides that "the panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." Ordinarily, in order to find that medical malpractice occurred, the panel must conclude that "The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint." La. R.S. 1231.8 G(1) [emphasis added].
However, when the provisions of La. R.S. 29:771 B(2)(c)(i) apply, as in this case, the law requires that the panel determine whether the deviation from the appropriate medical standard of care was one of gross negligence or willful misconduct. The medical review panel cannot make the proper determination as required by this statute unless it is properly instructed by its attorney chairman that, in this case, because a "state of public health emergency" was declared by the Governor, the law requires that the panel determine whether the deviation from the appropriate medical standard constitutes gross negligence or willful misconduct.
The medical standard of care is wholly distinct from the legal standard or evidentiary showing which must be met in a medical malpractice case. In Perritt v. Dona, 02-2601 (La. 7/2/03) 849 So.2d 56, the Louisiana Supreme Court stated:
[T]he language of La. R.S. 40:1299.47 G suggests that it is the duty of the medical review panel to determine the appropriate standard of care based on the evidence presented and whether defendant breached that standard. Id. at 65. [Emphasis added.]
This subsection was re-designated as La. R.S. 40:1231.8 G by HCR 84 of the 2015 ordinary session.
Thus, the panel makes two separate determinations : (1) the appropriate medical standard of care; and (2) whether that standard was breached. To make the second determination, the panel must be advised and understand the extent of the deviation from the appropriate standard of care which the evidence must show in this case. Specifically, the evidence must show that the failure to comply with the appropriate standard of care must amount to gross negligence or willful misconduct, rather than the ordinary finding of a failure to comply with the appropriate standard of care. The panel cannot be expected or assumed to know this unless it is advised of the law.
An order by the trial court that the attorney chairman instruct the panel on the proper legal standard they must apply is not an intrusion into the panel's baseline determination of the appropriate medical standard. Such an instruction by the court, and then by the attorney chairman, would deal only with the legal standard (burden). Once instructed of the correct legal standard, the panel can then properly determine whether the defendant breached the appropriate medical standard of care, and if so, whether that breach amounted to gross negligence or willful misconduct.
The trial court did order the attorney chairman to advise the panel to consider the Governor's State of Emergency Executive Order, which we upheld in 21-C-622. Thus, despite concerns about trial court intervention during the medical review panel proceeding, the trial court's order has been issued and we have found no reason to disturb it. I believe that result was correct, but now we should take the additional step of assuring that the attorney chairman properly advises the panel so that they can apply the correct legal requirement. It is clear from the record that the attorney chairman will not instruct the panel on this point unless the trial court so orders.
I disagree with the position that a faulty or insufficient instruction by the attorney chairman to the panel can be remedied by jury instructions, and that the jury can give the panel's opinion only as much weight as it sees fit. La. R.S. 40:1231.8 G provides that the opinion of the panel is an admissible expert opinion, but no medical review panel opinion based on the wrong rule of law should be admitted into evidence before a jury. The panel's opinion could well be completely different if it applies the ordinary negligence "failure to comply with the appropriate standard of care" rule, as opposed to the gross negligence or willful misconduct rule.
Eventually, the trial court will have to rule on this issue. In my view, it is better that the trial court rule now, while the medical review panel is still in progress, on whether the gross negligent or willful misconduct standard of La. R.S. 29:771 B(2)(c)(i) applies, and assure that the panel is properly advised so that it renders its decision based on the correct deviation from the appropriate standard of care as required by law. While the law clearly states that the opinion of the panel is admissible at trial, it surely does not contemplate that the trier of fact be influenced by a panel of experts whose finding is tainted by erroneous legal advice, or no advice, allowing the panel to apply the general negligence rule by default. An absence of proper instruction to the attorney chairman allows the probability of the application of the wrong legal standard. If a medical review panel opinion finding a breach of appropriate medical care is later determined to have been made in reliance upon incorrect or no legal advice, the probable undesirable alternatives would be to reconvene the panel, or exclude the panel's defective decision from trial evidence.
It would be, I believe, reversible error to admit into evidence at trial a panel opinion applying the wrong legal criteria-a lesser degree of negligence than the one which is clearly required by law during the pandemic-and expect a jury to comprehend an entanglement of legalese, and to determine whether the panel's finding of a general negligence breach of due care also amounts to a gross deviation from the due standard of care. This undermines the purpose and role of the medical review panel. This dilemma can be eliminated by a simple instruction by the trial court to the attorney chairman to properly advise the panel. Seeing that the panel is properly informed of applicable law is not an imposition on a non-judicial process; it is a necessity.
Lastly, I disagree with the contention that there is no authority for the trial court to interject itself into this non-judicial proceeding. Such an interjection is precisely what we authorized in writ disposition 21-C-622, wherein we cited La. R.S. 40:1231.8 C(6) in upholding the trial court's order to the attorney chairman to consider the Governor's executive order and applicable case law. If such authority existed there, it certainly exists here.
Our authority also lies in the court's general obligation to see that La. R.S. 29:771 B(2)(c)(i) is followed, as the legislature intended it to be. To that end, I believe the trial court's present order is insufficient. It suggests only that the attorney chairman "consider" the Governor's executive order, and does not mention La. R.S. 29:771 B(2)(c)(i), which is indispensable to the medical review panel's legally correct analysis.
The legislature amended La. R.S. 29:771 B(2)(c)(i) and (ii) by Act 30 of the 2nd extraordinary session of 2020. It was during the present pandemic and it specifically referenced COVID-19.
Accordingly, I would deny the writ as prayed insofar as the application requests that we order the trial court to order an instruction on the "standard of care," which is a medical conclusion, as opposed to an instruction on the applicable legal standard, i.e., that there must be a finding of such a breach of the appropriate standard of care as to constitute either gross negligence or willful misconduct. Considering that the trial court has instructed the attorney chairman to advise the panel to consider the Governor's executive order, I would remand for the trial court to further order the attorney chairman to instruct the medical review panel to determine whether the appropriate standard of care was breached, and if so, whether such breach amounted to gross negligence or willful misconduct, as mandated by La. R.S. 29:771 B(2)(c)(i).
SJW
JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, disagree with the denial of the writ application in this matter. Because the medical review panel is solely responsible "to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care" and the panel has the right and duty to procure all necessary information, the trial court should be able to instruct the medical review panel on the correct standard of care. See, La. R.S. 40:1231.8(F) and (G). I find that the petition for declaratory judgment filed by Relator, Kenneth Williams, M.D., should have been granted, and the trial court should have ordered the attorney panel chairman to instruct the medical review panelists as to the applicable gross negligence standard of care under La. R.S. 29:771(B)(2)(c).
MEJ