Medical review panels in Louisiana are not allowed to take into account COVID immunity

According to a recent decision by the Louisiana Court of Appeals for the Fourth Circuit, medical review panels tasked with assessing the viability of medical liability cases cannot take into account whether a healthcare provider is immune from a claim under the state’s COVID-19 public health emergency declaration. The court found that statutory immunity can only be raised as an affirmative defense in a lawsuit, and it would be incorrect to bring up concepts of gross negligence and willful misconduct during a medical review panel proceeding.

The case involved Vivian Lee Brown, who was admitted to St. Luke’s Living Center, a skilled nursing facility, in November 2019. After Louisiana Governor John Bel Edwards declared a public health emergency due to COVID-19, healthcare providers were granted immunity from civil liability for causing injury or death, except in cases of gross negligence. Brown developed pressure ulcers and became anemic before suffering cardiopulmonary arrest. Her estate filed a request for a medical review panel with the Louisiana Patient’s Compensation Fund, alleging negligence on the part of the nursing facility.

The estate and defense filed contradictory petitions for declaratory judgment. The estate sought to exclude gross negligence considerations during the medical review panel stage, arguing that qualified immunity did not extend to healthcare workers during a state public health emergency. The defense argued that the emergency declaration triggered the modified gross-negligence standard of care found in the Health Emergency Powers Act. The district court ruled in favor of the estate’s motion for summary judgment, which St. Luke’s appealed.

The appellate court agreed with the district court’s decision to exclude gross negligence considerations during the medical review panel and cited precedent stating that statutory immunity can only be raised as an affirmative defense after the panel process is complete and a lawsuit has been filed.