On March 11, 2020, Governor John B. Edwards declared a statewide public health care emergency, pursuant to the Louisiana Health Emergency Powers Act (“LHEPA”), in response to the public health epidemic caused by the spread of Covid-19. See Proclamation Number 25 JBE 2020. LHEPA 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).
Therefore, in order to succeed in a cause of action under the Louisiana Medical Malpractice Act for treatment provided after March 11, 2020, the claimant must prove that the healthcare provider was grossly negligent or committed willful misconduct. Gross negligence is defined as “the absence of even slight care and diligence, such as to raise a belief that the conduct was the result of a conscious indifference to the safety of the person or persons to be effected by the conduct.” To constitute “willful misconduct,” there must be some “voluntary, intentional breach of duty, which may be unlawful, dishonest, or improper, or perhaps all three, that is committed with band intent or, at best, with wanton disregard for the consequences.
”The statewide Covid-19 emergency order expired in the state of Louisiana on March 16, 2022. Any accusations of medical malpractice occurring after that date will proceed against a healthcare provider under the prior burden of proof of general negligence.
