HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, May 24, 2022

The Louisiana Health Emergency Powers Act: What Would the Louisiana Supreme Court Say?

 L. Christine Tillman (Southern University), The Louisiana Health Emergency Powers Act: What Would the Louisiana Supreme Court Say?, 49 S.U. L. Rev. (2022):

This Article explores the background of the Louisiana Health Emergency Powers Act (“LHEPA”), including proclamations that have summoned its current applicability, historical development, and, most importantly, Lejeune v. Steck, the only reported case to date involving the LHEPA. The Author extracts legislative purpose, relevant points, and conclusions, and develops three issues presented in the form of challenges. A simulation of the Louisiana Supreme Court’s responses to these challenges exposes the inherent fallacies of the LHEPA and the Lejeune decision.

Approximately eleven years after the LHEPA was adopted, the Louisiana Fifth Circuit Court of Appeal handed down the Lejeune decision, sending shockwaves throughout the legal community. The Lejeune decision established that during a state of public-health emergency, the LHEPA’s scope relative to which health-care providers are afforded liability protections is essentially unlimited, encompassing all health-care providers, and gross negligence is the prevailing standard rather than the longstanding general negligence standard set forth in the Louisiana Medical Malpractice Act.

The Author explores how the LHEPA leads to absurd consequences because of its unlimited reach and how courts should limit its application. A declared state of public-health emergency is the only prerequisite for a health-care provider to be shielded from liability for causing injury or death to another person, e.g., the provider does not have be in the course and scope of employment or even providing health care. The Lejeune decision also allows the LHEPA to reach beyond the boundaries of the statute’s very function and legal designation as a statutory immunity. The Author opines that allowing an affirmative defense that has not been pled or proven to lower the standard from negligence to gross negligence is legal error—applying incorrect principles of law that are inherently prejudicial by casting a more onerous standard than the law requires. The Author concludes by encouraging lawyers to continually challenge the LHEPA until new precedents ensue.

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