Brandi Billeaudeau v. Opelousas General Hospital Authority

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-735 consolidated with CA 17-736

BRANDI BILLEAUDEAU, ET AL.

VERSUS

OPELOUSAS GENERAL HOSPITAL AUTHORITY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 11-C-5112-D C/W NO. 13-C-0097-D
HONORABLE D. JASON MECHE, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Billy H. Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED.

Kara Hadican Samuels
Tiffany A. Morales
Kara Hadican Samuels & Associates, L.L.C.
4004 Canal St.
New Orleans, LA 70119
(504) 558-9478
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Brandi Billeaudeau
Joseph Billeaudeau
Veronica Billeaudeau

Jennifer L. Thornton
Christian S. Chaney
Stanley, Reuter, Ross, Thornton & Alford, L.L.C.
909 Poydras, Suite 2500
New Orleans, LA 70112
(504) 523-1580
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Joseph Billeaudeau
Veronica Billeaudeau
Brandi Billeaudeau

Joseph L. McReynolds
John Jerry Glas
Karen P. Holland
Deutsch, Kerrigan & Stiles, L.L.P.
755 Magazine St.
New Orleans, LA 70130-3672
(504) 581-5141
COUNSEL FOR DEFENDANT-APPELLEE:
Opelousas General Hospital Authority

Nicholas Gachassin, III
Brandon M. Rhodes
Gary J. Delahoussaye
Gachassin Law Firm, L.L.C.
P. O. Box 80369
Lafayette, LA 70598-0369
(337) 235-4576
COUNSEL FOR DEFENDANT-APPELLEE:
Opelousas General Hospital Authority

J. Gregory Vidrine
Mahtook & LaFleur
P. O. Box 617
Ville Platte, LA 70586
(337) 363-6211
COUNSEL FOR DEFENDANT-APPELLEE:
Opelousas General Hospital Authority
Jacob E. Favaron
Allen & Gooch

P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANTS-APPELLEES:
Dr. Kondilo Skirlis-Zavala
Louisiana Patients’ Compensation Fund
Opelousas General Hospital

George P. Hebbler, Jr.
Thomas M. Young
Frances I. Mcginnis
Hebbler & Giordano, L.L.C.
3501 N. Causeway Blvd, #400
Metairie, LA 70002
(504) 833-8007
COUNSEL FOR DEFENDANT-APPELLEE:
Nautilus Ins. Co.

PERRET, Judge.

Veronica and Joseph Billeaudeau, individually and on behalf of Brandi

Billeaudeau (collectively “Plaintiffs”), appeal a trial court judgment that granted

Opelousas General Hospital Authority’s (hereinafter, “OGH”) and Nautilus

Insurance Company’s (collectively “Defendants”) Motion for Partial Summary

Judgment finding that the Louisiana Governmental Claims Act is controlling with

respect to Plaintiffs’ claim of negligent credentialing. Plaintiffs also appeal the

trial court’s judgment that denied their Motion to Declare La.R.S. 13:5102(B)(1)

unconstitutional. For the following reasons, we affirm the July 5, 2017 trial court

judgment.

FACTS:

The underlying facts of this case were discussed previously in Billeaudeau v.

Opelousas Gen. Hosp., 16-846, pp. 2-3 (La. 10/19/16), 218 So.3d 513, 514-15

(footnotes omitted), as follows:

On June 20, 2010, Brandi, a woman thirty-four
years of age with Down syndrome, was taken to OGH by
her parents, Veronica and Joseph Billeaudeau, after she
collapsed at home. Upon arrival at the ED, Dr. Zavala
diagnosed Brandi with focal motor seizure. Dr. Zavala
ordered the administration of anti-seizure medication and
a CT scan, which was reported as normal.

The Billeaudeaus disagreed with the doctor’s
diagnosis. Thinking their daughter had suffered a stroke,
they asked that Brandi be given tPA (t-plasminogen
activator), a treatment for stroke victims. However,
according to plaintiffs’ allegations, Dr. Zavala informed
them their daughter was not a candidate for tPA. The
Billeaudeaus then requested Brandi be transferred to Our
Lady of Lourdes (OLOL) in Lafayette. Dr. Zavala
arranged for Brandi’s transfer to OLOL, where she was
given tPA over four hours after she suffered what was
ultimately determined to be a stroke. Brandi survived the
stroke but unfortunately suffered severe, irreversible
brain damage.

Veronica, individually and as Brandi’s curatrix,
along with Joseph pursued a claim under the LMMA
[Louisiana Medical Malpractice Act] and brought suit
against OGH, among other defendants, specifically
alleging:

Defendant, Opelousas General Hospital, is
liable unto Petitioners because Ms. Billeaudeau’s
injuries and damages, which will be specified
hereinafter, were proximately and legally caused
by the fault, including negligence, of Opelousas
General Hospital and its officers, agents,
employees, and those for whom it is legally
responsible, including the following negligent acts
of omission and commission, among others, which
may be shown during the trial:

a. Failure to develop and/or implement
adequate policies and procedures to
competently address stroke and/or
administration of tPA;

b. Failure to distribute its written stroke
and/or tPA protocol to Dr. Kondilo Skirlis-
Zavala, a physician working in the hospital’s
emergency department;

c. Failure to ensure that Dr. Zavala had
reviewed and accepted the hospital’s written
stroke and/or tPA protocol;

d. Failure to supervise Dr. Zavala, a
physician working in Opelousas General’s
emergency department; and

e. Negligent credentialing of Dr. Zavala.

Thereafter, plaintiffs filed a motion for partial
summary judgment asking the District Court to declare
their claim against OGH for negligent credentialing was
not subject to the terms of the LMMA, including the cap
on damages found in La. Rev. Stat. § 40:1231.2(B)(1).

The trial court granted Plaintiffs’ Motion for Partial Summary Judgment

finding that negligent credentialing was not covered by the Louisiana Medical

Malpractice Act (“LMMA”). This court and the Louisiana Supreme Court

affirmed the trial court’s judgment, finding that Plaintiffs’ negligent credentialing

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claim sounds in general negligence and does not fall within the provision of the

LMMA.

On March 15, 2017, OGH filed a Motion for Partial Summary Judgment on

the Applicability of the Louisiana Government Claims Act and Rule to Show

Cause, arguing the following legal elements, in pertinent part:

1. The claim against OGHA [OGH] for negligent
credentialing is not covered by the Louisiana Medical
Malpractice Act. (Billeaudeau v. Opelousas General
Hospital Authority, et al, 2016 WL 6123862 (La. 2016)).

2. Hospital Service Districts, including St. Landry Parish
Hospital Service District No. 2, are political subdivisions
of the state. (LSA-R.S. 46:1064(A); LSA-R.S.
56:1072(2)(b); Bertrand v. Sandoz, 255 So.3d 754, 755
(La. 1971)).

3. The Opelousas General Hospital Authority is a public
trust established to finance, construct, operate, manage
and administer hospital and ancillary facilities for St.
Landry Parish Hospital Service District No. 2. (Bertrand
v. Sandoz, 255 So.3d 754, 762 (La. 1971); Exhibit A,
attachments 2, 3, 4, and 5).

4. The Opelousas General Hospital Authority is a
“political subdivision” of the State as that term is defined
by LSA-R.S. 13:5102(B)(1).

5. The Louisiana Governmental Claims Act, LSA-R.S.
13:5101 et seq., in general, and Section 5106 concerning
limitation of liability, in particular, will apply to the
plaintiffs’ claim of negligent credentialing.

6. Both the claims of the primary plaintiff, Brandi
Billeaudeau, and the derivative claims of her parents with
respect to negligent credentialing are subject to the single
statutory cap on damages established by LSA-R.S.
13:5106. . . .

In opposition to the Motion for Partial Judgment, Plaintiffs argue that OGH

is a public trust and not a political subdivision; thus, the limitations on liability that

are available to political subdivisions are not applicable to their claims. Plaintiffs

maintain that “(1) OGH has not identified itself as a political subdivision in this

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case or in any Answer filed with the Clerk of Court of St. Landry Parish; and (2)

OGH has already prayed for and paid for a jury trial.” Further, Plaintiffs argue that

OGH’s position that it is entitled to the protections of La.R.S. 13:5106 because it is

a “political subdivision” is inconsistent in that the “public trust was created

precisely so that the St. Landry Parish taxpayers would not be financially burdened

by the hospital, which is why they no longer have to approve the hospital’s

financing decisions.” Plaintiffs further allege that “[i]nterpreting a public trust to

be a political subdivision under §13:5102 and 5106 would also be inconsistent with

provisions in the Public Trust Act and OGH’s own Trust Indenture concerning

liability and the payment of liabilities.”

Plaintiffs also filed a Motion to Declare La.R.S. 13:5102(B)(1)

unconstitutional. Plaintiffs argue that La.R.S. 13:5102(B)(1) is unconstitutional

“as vague, overbroad, and/or violative of Plaintiffs’ right to due process of law,

right to access to the Courts, right to trial by jury, right to equal protection, and any

and all other rights therein guaranteed.”

In response to Plaintiffs’ opposition, OGH submitted the following facts to

establish that there are no genuine issues of fact (emphasis in original):

1. Pursuant to an ordinance dated July 6, 1963, the St.
Landry Parish Police Jury created Hospital Service
District No. 2 of the Parish of St. Landry, State of
Louisiana, (referred to herein as “District”) wherein the
District “shall constitute a public corporation and
political subdivision of the state and shall have all the
powers and privileges granted by the state constitution
and state statutes to such subdivisions, including the
authority to incur debt, to issue bonds and to levy taxes.”
(Exhibit B; Bertrand v. Sandoz, 255 So.3d 754, 758-59
(La. 1971)).

2. The District’s hospital opened on May 27, 1957. By
1970, the hospital had experienced rapid growth and was
in need of expansion and renovation and, as a result, the
District formulated a plan for modernization and
expansion to be funded in part by a proposed bond issue
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by the District in the amount of $1,600,000.00.
(Bertrand v. Sandoz, 255 So.3d 754, 756-57 (La. 1971)).

3. The bond proposal was defeated by the voters on
January 12, 1971; due to the critical need for improving
the hospital, the District decided to utilize the recently
enacted Public Trust Act, Act 135 of 1970 (La. R.S.
9:2341-2347), which authorized the creation of an
express trust, with a public body as the beneficiary, to
finance public projects from self-generated revenue.
(Bertrand v. Sandoz, 255 So.3d 754, 757 (La. 1971)).

4. On April 6, 1971, the public trust named “Opelousas
General Hospital Authority” (“OGHA”) was created by
the District pursuant by [sic] a Trust Indenture to
“finance, operate, construct, lease, rent, manage and
administer hospital facilities and facilities ancillary and
related thereto, and for the public purposes hereinafter set
forth as a public instrumentality of the state or a
subdivision or agency thereof,” wherein the District is the
beneficiary, as amended September 25, 1986, May 15,
1991, and July 30, 1991. (Exhibit C, attachments 1, 2, 3,
and 4).

5. On December 13, 1971, the Louisiana Supreme Court,
in response to a suit filed contesting the validity of the
OGHA, held “that the public trust designated as
Opelousas General Hospital Authority is valid and may
issue revenue bonds without an election by a majority of
the taxpayers of the district.” (Bertrand v. Sandoz, 255
So.3d 754, 764 (La. 1971)).

6. On January 25, 1972, the District entered into an
“Agreement of Lease” with OGHA whereby the District
leases the land and hospital building to OGHA so that
OGHA can operate the hospital, as amended February 15,
1973, December 1, 1975, and June 1, 1990 (Exhibit D,
attachments 1, 2, 3, and 4).

7. On May 24, 1972, the Internal Revenue Service issued
rulings finding that:

a. The $1,600,000.00 in revenue bonds issued by
OGHA bear interest which is exempt from Federal
income taxation as prescribed in Section 103(a)(1)
of the Internal Revenue Code of 1954; and

b. The income earned by OGHA, as a result of the
operation of the hospital, is not subject to federal
income taxation. (Exhibit E).

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8. On January 22, 2004, OGHA filed a “Certificate of
Registration of Assumed Business Name” providing that
OGHA would do business as “Opelousas General Health
System”. (Exhibit F).

9. OGHA is a public trust established to finance,
construct, operate, manage and administer hospital and
ancillary facilities wherein Hospital Service District No.
2 of St. Landry Parish, a political subdivision of the State
of Louisiana, is the beneficiary.

10. OGHA is a “political subdivision” of the State as
that term is defined by LSA-R.S. 13:5102(B)(1).
Therefore, the Louisiana Governmental Claims Act,
LSA-R.S. 13:5101 et seq., in general, and Section 5106
concerning limitation of liability, in particular, will apply
to the plaintiffs’ claim of negligent credentialing.

After a hearing, the trial court signed a judgment on July 5, 2017, that

granted Defendants’ Motion for Partial Summary Judgment on the Applicability of

the Louisiana Governmental Claims Act and found that “LSA-R.S. 13:5101, et seq.,

in general, and LSA-R.S. 13:5106 concerning limitation of tort liability, in

particular, are controlling with respect to the Plaintiffs’ claims of negligent

credentialing.” The trial court also denied Plaintiffs’ Motion to Declare La. R.S.

13:5102(B)(1) unconstitutional.

During the hearing on June 12, 2017, the trial court provided the following

reasons for its finding that OGH is a political subdivision, and its denial of

Plaintiffs’ motion seeking to declare La.R.S. 13:5102(B)(1) unconstitutional:

I do find, or I did note that upon the termination of the
trust that the property reverts back to the beneficiary of
the trust which is Hospital Service District No. 2 of St.
Landry Parish. And it’s only leased to them, which
means that ownership --- at least part of it --- ownership
remains with the Hospital Service District and not the
trust. . . .

I think it’s a question of law. And a motion for summary
judgment based on the interpretation of statutes and, in
particular, Louisiana Revised Statute 13:5102(B)[,]
which defines political subdivision, under subpart (1), or
(B)(1), [as] [“]any parish, municipality, special district,
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schoolboard [sic], sheriff, public board, institution,
department, commission, district, corporation, agency,
authority, or an agency or subdivision of any of these
and . . . other public or governmental body of any kind
which is not a state agency.[”] I’m going to find that the
hospital, both the trust and the --- as you argued, the --- if
you diagram it you have the State gave the authority to
the police jury, the police jury created the hospital service
district, the hospital service district then essentially
created the trust and the property is still owned in part by
the hospital service district, will revert back to the
hospital service district upon the termination of the trust.
I think under a clear reading of Revised Statute
13:5102(B)(1) that both would be political subdivisions.

....

[I]t’s very difficult to declare a statute unconstitutional.
They’re presumed to be constitutional and valid. Again,
I understand, and I assume that the arguments can be
made, that there are no other cases that specifically deal
with the applicability of the statute to a public trust that is
essentially the funding arm or mechanism of a hospital
service district, but there have been numerous other
political subdivisions that have urged the protections or
the limitations of liability of the statute and I don’t think
it’s ever been held unconstitutional in any of those other
cases. But I’m going to deny the motion for summary
judgment seeking to declare 13:5102(B)(1)
unconstitutional.

Plaintiffs now appeal this final judgment. On appeal, Plaintiffs allege the

following three assignments of error: (1) the trial court erred in concluding that

OGH, a public trust, meets the statutory definition of “political subdivision”

contained in La.R.S. 13:5102(B)(1); (2) the trial court erred in holding that the

public trust is a “political subdivision;” and (3) in the alternative, the trial court

erred in determining that La.R.S. 13:5102(B)(1) is constitutional as applied to their

case.

STANDARD OF REVIEW:

An appellate court reviews a trial court’s granting of a motion for summary

judgment de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d

7

544. Under this standard of review, the appellate court uses the same criteria as the

trial court in determining if summary judgment is appropriate: whether there is a

genuine issue of material fact and whether the mover is entitled to judgment as a

matter of law. Id.

“[A] motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(A)(3). As stated in La.Code Civ.P. art. 966 (D)(1):

[I]f the mover will not bear the burden of proof at trial on
the issue that is before the court on the motion for
summary judgment, the mover’s burden on the motion
does not require him to negate all essential elements of
the adverse party’s claim, action, or defense, but rather to
point out to the court the absence of factual support for
one or more elements essential to the adverse party’s
claim, action, or defense. The burden is on the adverse
party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.

DISCUSSION:

In this case, we are to determine whether OGH falls within the statutory

definition of a “political subdivision” contained in La.R.S. 13:5102(B)(1), and if so,

whether this statute is constitutional. Our decision is premised on the fact that “the

Legislature is presumed to enact each statute with deliberation and with full

knowledge of all existing laws on the same subject.” M.J. Farms, Ltd. v. Exxon

Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27, amended on reh’g

(9/19/08). Thus, this court will interpret the legislative language “on the

assumption the Legislature was aware of existing statutes, well established

principles of statutory construction and with knowledge of the effect of their acts

and a purpose in view.” Id. As the Louisiana Supreme Court stated in Duckworth

8

v. La. Farm Bureau Mut. Ins. Co., 11-2835, p. 12 (La. 11/2/12), 125 So.3d 1057,

1064:

In Louisiana, as in other civil law jurisdictions,
legislation is superior to any other source of law. See, La.
C.C. art. 1; Doerr v. Mobil Oil Corp., 00-0947, p. 13
(La.12/19/00), 774 So.2d 119, 128. Therefore, as the
solemn expression of the legislative will, if an enactment
provides a solution to a particular situation, then no
jurisprudence, usage, equity or doctrine can prevail over
the legislation. See La. C.C. arts. 2 and 3. It is only
when a particular situation is not covered by legislation
that a solution can be sought elsewhere. La. C.C. art. 4.

The judiciary’s role in the civil law, first and
foremost, is not to legislate from the bench, but to
interpret the legislative will and apply statutory
pronouncements to specific cases. Albert Tate, Jr.,
Techniques of Judicial Interpretation in Louisiana, 22
La.L.Rev. 727, 728 (1962) (“The Louisiana judge must,
as stated, find primarily in legislative enactments the
legal principles to be applied in deciding the case before
him.”). Interpretation of the legislative will is
accomplished through the rules of statutory construction.
Pursuant to these rules, the interpretation of a legislative
enactment begins with the language of the law itself. In
re Succession of Faget, 10-0188, p. 8 (La.11/30/10), 53
So.3d 414, 420; Touchard v. Williams, 617 So.2d 885,
888 (La.1993). When a law is clear and unambiguous
and its application does not lead to absurd consequences,
the law must be applied as written, and no further
interpretation may be made in search of the legislative
intent. La. C.C. art. 9; La. R.S. 1:4. Unequivocal
provisions are not subject to judicial construction and
should be applied by giving the words their generally
prevailing meaning. La. C.C. art. 11; La. R.S. 1:3; Oubre
v. Louisiana Citizens Fair Plan, 11-0097, p. 12
(La.12/16/11), 79 So.3d 987, 997. Further, laws on the
same subject matter are to be interpreted in reference to
each other. La. C.C. art. 13.

We will now examine the instant case with these considerations in mind.

The Louisiana Constitution Article 12, § 10(C) “grants the legislature the

power to enact legislation to limit or set out the conditions of the State’s liability.”

Fulmer v. State, Dep't of Wildlife & Fisheries, 10-2779, p. 7 (La. 7/1/11), 68 So.3d

9

499, 504. Specifically, in 1995, La.Const. art. 12 §10(C) was amended to read, in

pertinent part:

[T]he legislature by law may limit or provide for the
extent of liability of the state, a state agency, or a
political subdivision in all cases, including the
circumstances giving rise to liability and the kinds and
amounts of recoverable damages. It shall provide a
procedure for suits against the state, a state agency, or a
political subdivision and provide for the effect of a
judgment, but no public property or public funds shall be
subject to seizure. The legislature may provide that such
limitations, procedures, and effects of judgments shall be
applicable to existing as well as future claims. No
judgment against the state, a state agency, or a political
subdivision shall be exigible, payable, or paid except
from funds appropriated therefor by the legislature or by
the political subdivision against which the judgment is
rendered.

The Louisiana Governmental Claims Act, found at La.R.S. 13:5101 et seq.,

applies:

to any suit . . . for injury to person . . . against the state, a
state agency . . . or a political subdivision of the state, as
defined herein, or against an officer or employee of a
political subdivision arising out of the discharge of his
official duties or within the course and scope of his
employment.

La.R.S. 13:5101(B). Louisiana Revised Statutes 13:5102(B)(1) defines a “political

subdivision” as “[a]ny parish, municipality, special district, school board, sheriff,

public board, institution, department, commission, district, corporation, agency,

authority, or an agency or subdivision of any of these, and other public or

governmental body of any kind which is not a state agency.” Louisiana Revised

Statutes 13:5106 establishes a $500,000.00 cap on general damage awards against

all public entities, and provides the legislature’s reasons for limiting the liability of

the state, as follows:

(1) That judgments against public entities have exceeded
ability to pay on current basis.

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(2) That the public fisc is threatened by these judgments
to the extent that the general health, safety, and welfare
of the citizenry may be threatened.

(3) That the limitations set forth in this Section are
needed to curb the trend of governmental liability abuses,
to balance an individual’s claim against the needs of the
public interests and the common good of the whole
society, and to avoid overburdening Louisiana's economy
and its taxpaying citizens with even more new and/or
increased taxes than are already needed for essential
programs.

(4) That the purpose of this Section is not to reestablish
any immunity based on the status of sovereignty but
rather to clarify the substantive content and parameters of
application of such legislatively created codal articles and
laws and also to assist in the implementation of Article II
of the constitution.

La.R.S. 13:5106(E).

The Louisiana Supreme Court recently provided a historical overview of the

Louisiana Governmental Claims Act in Fecke v. Bd. of Supervisors of Louisiana

State Univ., 15-1806, 15-1807, pp. 8-9 (La. 9/23/16), 217 So.3d 237, 244-45,

modified on reh’g sub nom. Fecke v. Bd. of Supervisors of Louisiana State Univ. &

Agric. & Mech. Coll., 15-1806, 15-1807 (La. 10/19/16), 218 So.3d 1 (footnotes

omitted) (alteration in original), and stated, in pertinent part:

The Louisiana Governmental Claims Act was
adopted in 1975 pursuant to an amendment to the
Louisiana Constitution giving constitutional status to the
proscription against sovereign immunity from substantive
tort liability. The Act establishes procedural rules that
apply to any suit in contract or for injury to person or
property against the state, a state agency, or a political
subdivision of the state. See La. Rev. Stat. 13:5101(B).
When enacted, La. Rev. Stat. 13:5106 provided the lone
limitation that “[n]o suit against the state, state agency or
political subdivision shall be instituted in any court other
than a Louisiana state court.” In 1985, the Legislature
amended La. Rev. Stat. 13:5106 to expand the limitations
on suits against the state and political subdivisions. The
1985 revision placed a limit of $500,000.00 on general
damages assessed against the state in personal injury and
wrongful death actions; provided for the recovery of
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medical care and related benefits, loss of earnings and/or
support, loss of future earnings or support; defined the
terms “medical care and related benefits,” “loss of
earnings,” “loss of support,” “loss of future earnings” and
“loss of future support”; and enunciated the legislative
findings and purposes of the statute. See La. Rev. Stat.
13:5106(B), (C), (D) and (E).

In 1993, this Court declared La. Rev. Stat.
13:5106(B)(1) unconstitutional, holding the $500,000.00
cap on general damages in a personal injury suit against
the State contravened the proscription against sovereign
immunity from tort liability provided for in Louisiana
Const. 1974 article XII, § 10(A). Chamberlain v. State
Through Dept. of Transp. and Development, 624 So.2d
874, 881 (La. 1993). In response, the Legislature
proposed an amendment to Louisiana Const. 1974 article
XII, § 10(C), to allow the legislature to “limit or provide
for the extent of liability of the state, a state agency, or a
political subdivision in all cases, including the
circumstances giving rise to liability and the kinds and
amounts of recoverable damages.” The amendment was
approved by the voters on October 21, 1995, and went
into effect November 23, 1995, allowing a cap on general
damages against the State to be reinstated. In
anticipation, the Legislature amended La. Rev. Stat.
13:5106 “in accordance with and based upon the
legislative authority provided for in the proposed
constitutional amendment to Article XII, Section 10 of
the Constitution of Louisiana.” See Digest, 1995 House
Bill No. 1936. The 1995 amendments to La. Rev. Stat.
13:5106(B) increased the maximum liability of the State
for general damages in wrongful death cases at
$750,000.00.

In an effort at tort reform, the Legislature in 1996
amended La. Rev. Stat. 13:5106(B) to limit general
damages in suits against the state, a state agency, or
political subdivision for personal injury or wrongful
death to $500,000.00. . . .

In 2004, this Court held the $500,000.00 cap on
damages for a wrongful death action under La. Rev. Stat.
13:5106(B)(2) applied to each individual plaintiff,
instead of each death victim. Lockett v. State,
Department of Transportation, 2003-1767 (La. 2/25/04),
869 So.2d 87. The Legislature responded, amending La.
R.S. 13:5106(B)(1) and (2) to limit the total liability of
the state and political subdivisions for personal injury or
wrongful death of any one person, including all claims
and derivative claims, to $500,000.00 regardless of the
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number of suits filed or claims made for the personal
injury or wrongful death of that person. More recently,
the Legislature amended La. Rev. Stat. 13:5106, adding
subsection F, to preclude the application of La. Rev.
13:5106 to claims arising under La. Rev. Stats.
40:1299.3917, the Malpractice Liability for State
Services Act.

The record evidences the fact that the Hospital Service District No. 2 of St.

Landry was created in 1953 as a political subdivision of the State of Louisiana,

pursuant to La.R.S. 46:1064(A), which provides:

The hospital service districts as defined in R.S.
46:1072 are hereby declared to be political subdivisions
of the state, and for the purpose of purchasing and
acquiring lands and purchasing, acquiring, constructing
and maintaining hospitals, nursing homes, physicians and
dentists offices, laboratories, and other physical facilities
necessary to carry out the purposes of this Chapter. Title
to such land and physical facilities shall be in the public.
Such districts shall be subdivisions of the state of
Louisiana within the meaning of the laws of Louisiana
relating to the voting and levy of special maintenance
taxes incurring debt and issuing bonds therefor, including
particularly but without limitation R.S. 39:504.1, 515-518,
551-571, 575-577, 611-617, 701-706, and 911, and shall
be authorized to issue hospital revenue bonds pursuant to
R.S. 39:559.1 and 1011-1024, and as otherwise permitted
by law. Hospital service districts are hereby further
authorized to issue bonds pursuant to the foregoing to
refund outstanding bonded indebtedness whether issued
by such hospital service district or by another political
subdivision of the state on behalf of such hospital service
district or in respect of any hospital facilities owned or
operated by any such hospital service district.

The record further supports the fact that OGH was created as a “public trust”

under the Public Trust Act, Act 135 of 1970, now La.R.S. 9:2341 et seq., for the

benefit of the Hospital Service District No. 2 of St. Landry. The Trust Indenture,

signed on April 6, 1971, states the reason for creating the trust, as follows:

ARTICLE 1
CREATION OF TRUST

The undersigned Trustor creates and established a
Trust (herein called “The Trust”) for the use and benefit
13

of Hospital Service District No. 2, (herein called the
“Beneficiary”), to finance, operate, construct, lease, rent,
manage and administer hospital facilities and facilities
ancillary and related thereto, and for the public purposes
hereinafter set forth as a public instrumentality of the
state or a subdivision or agency thereof, under the
provision of Act No. 135, 1970, L[a].R.S. 9:2341, et seq.
as amended, Louisiana Revised Statutes 1970, and the
Louisiana Trust Code and other statutes of the State of
Louisiana, as applicable.

On September 25, 1986, the Trust Indenture was amended to include Article

IV, section 4.1, to state “The purpose of the Trust shall constitute authorized public

functions or purposes held to be an essential public function conducted in the

public interest . . . .”

According to La.R.S. 9:2341(D), as amended in 1978, (emphasis added),

“[a]ll public trusts hereafter created or amended under this Chapter shall

constitute public corporations of the beneficiary . . . All public trusts created

heretofore or hereafter shall be subject to the Public Contracts Law, Public Records

Law, Public Meetings Law, Code of Ethics, and the Bond Validation Procedures

Law.” Although the Public Trust Act was amended in 1976 and 1978 to include,

and clarify, section D of La.R.S. 9:2341, the record indicates that the Hospital

Service District No. 2 of St. Landry amended its Trust Indenture Instrument on

September 25, 1986, May 15, 1991, and again on July 30, 1991, to conform the

trust to the amended and re-enacted Public Trust Act. The record also indicates

that the Hospital Service District No. 2 of St. Landry leased the land and hospital

building to OGH on January 25, 1972, and amended the lease agreements on

February 15, 1973, December 1, 1975, and June 1, 1990.

Although Plaintiffs cite to Bertrand v. Sandoz, 260 La. 239, 255 So.2d 754

(1971), for the proposition that the Louisiana Supreme Court confirmed that OGH

is a public trust and not a political subdivision, we find this case inapplicable to the

14

facts of this matter because the Louisiana Governmental Claims Act was enacted

four years after this supreme court case was decided, and the definition of

“political subdivision” used in La.R.S. 13:5102(B)(1) was not at issue in Bertrand.

For these reasons, we agree with the trial court that the 1986 and 1991

amendments to the Hospital Service District No. 2 of St. Landry’s Trust Indenture

brought the OGH within the scope of the legislative amendments throughout the

years and that OGH is a “public corporation” within the meaning of the Louisiana

Governmental Claims Act.

The second issue for this court to address is whether La.R.S. 13:5102(B)(1)

is constitutional as applied to Plaintiffs’ case. Plaintiffs argue that there is no

rational relationship to any state interest in extending the Louisiana Governmental

Claims Act to OGH, and that it only serves “to deprive the Billeaudeaus of their

constitutional guarantees of equal protection, due process of law, access to the

courts, and an adequate remedy under the law.”

The Louisiana Supreme Court addressed the principles of review for

constitutionality in La Fed’n of Teachers v. State, 13-120, 13-232, 13-350, pp 21-

22 (La. 5/7/13), 118 So.3d 1033, 1048-49 (emphasis added), and stated:

As a general rule, legislative instruments are presumed to
be constitutional; therefore, the party challenging the
validity of a legislative instrument has the burden of
proving its unconstitutionality. See State v. Citizen, 04-
1841, p. 11 (La.4/1/05), 898 So.2d 325, 334; Louisiana
Municipal Association, 04-0227 at 45, 893 So.2d at 842;
Board of Commissioners of North Lafourche
Conservation, Levee and Drainage District v. Board of
Commissioners of Atchafalaya Basin Levee District, 95-
1353, pp. 3-4 (La.1/16/96), 666 So.2d 636, 639.

Because the provisions of the Louisiana
Constitution are not grants of power, but instead are
limitations on the otherwise plenary power of the people
of the state, exercised through the legislature, the
legislature may enact any legislation that the constitution
does not prohibit. Louisiana Municipal Association, 04-
15

0227 at 45, 893 So.2d at 842-43; Polk v. Edwards, 626
So.2d 1128, 1132 (La.1993); Board of Commissioners of
Orleans Levee District v. Department of Natural
Resources, 496 So.2d 281, 286 (La.1986).
Consequently, a party challenging the
constitutionality of a legislative instrument must point
to a particular provision of the constitution that
would prohibit the enactment of the legislative
instrument and must demonstrate clearly and
convincingly that it was the constitutional aim of that
provision to deny the legislature the power to enact
the legislative instrument in question. See World
Trade Center Taxing District v. All Taxpayers, Property
Owners, 05-0374, p. 12 (La.6/29/05), 908 So.2d 623, 632;
Caddo-Shreveport Sales and Use Tax Commission v.
Office of Motor Vehicles Department of Public Safety
and Corrections of the State, 97-2233, pp. 5–6
(La.4/14/98), 710 So.2d 776, 779; Polk, 626 So.2d at
1132. A constitutional limitation on the legislative power
may be either express or implied. World Trade Center
Taxing District, 05-0374 at 12, 908 So.2d at 632; Caddo-
Shreveport Sales and Use Tax Commission, 97-2233 at 6,
710 So.2d at 779-80.

Finally, because it is presumed that the legislature
acts within its constitutional authority in promulgating a
legislative instrument, this court must construe a
legislative instrument so as to preserve its
constitutionality when it is reasonable to do so. See
State v. Fleury, 01-0871, p. 5 (La.10/16/01), 799 So.2d
468, 472; Moore v. Roemer, 567 So.2d 75, 78 (La.1990).
In other words, if a legislative instrument is susceptible
to two constructions, one of which would render it
unconstitutional or raise grave constitutional questions,
the court will adopt the interpretation of the legislative
instrument which, without doing violence to its language,
will maintain its constitutionality. See Hondroulis v.
Schuhmacher, 553 So.2d 398, 416-17 (La.1988).
Nevertheless, the constitution is the supreme law of this
state to which all legislative instruments must yield. See
World Trade Center Taxing District, 05-0374 at 12, 908
So.2d at 632; Caddo-Shreveport Sales and Use Tax
Commission, 97-2233 at 6, 710 So.2d at 780. When a
legislative instrument conflicts with a constitutional
provision, the legislative instrument must fall. See
Caddo-Shreveport Sales and Use Tax Commission, 97-
2233 at 6, 710 So.2d at 780.

Thus, under La Fed’n of Teachers, the Louisiana Supreme Court made it

clear that a person challenging the constitutionality of a statute must point to a
16

particular provision of the constitution that has been violated and must demonstrate

clearly and convincingly how the statutory provision has violated the constitutional

provision.

After reviewing Plaintiffs’ pleadings, we find that Plaintiffs failed to actually

explain how their rights were violated by the statutes at issue in order to overcome

the presumption of constitutionality. Further, the La.Const. art. 12, § 10(C) directs

the legislature to provide both a procedure for suits against entities such as OGH

and for a limitation on the effect of judgments against it. We find that the

legislature clearly expressed its purpose in enacting the Louisiana Governmental

Claims Act and we find that the statutes evidence the legislative intent to limit

recovery of damages from political subdivisions of the state as defined by La.R.S.

13:5102(B)(1).

Accordingly, we find that the trial court properly granted Defendants’

Motion for Partial Summary Judgment on the applicability of the Louisiana

Governmental Claims Act and its finding that the provisions of the Act are

controlling with respect to Plaintiffs’ claims of negligent credentialing. Further,

we find that the trial court properly denied Plaintiffs’ Motion to Declare La.R.S

13:5102(B)(1) unconstitutional.

AFFIRMED.

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