Danielle Hebert, invd.and on Behalf of Her Son,jarren Miller v. Louisiana Medical Mutual Insurance Company (Lammico) Jennings American Legion Hospital, and Timothy Magann, M.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-316

DANIELLE HEBERT, INDIVIDUALLY
AND ON BEHALF OF HER SON, JARREN MILLER

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY
(LAMMICO), JENNINGS AMERICAN LEGION HOSPITAL, AND
TIMOTHY MAGANN, M.D.

**********

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-57821
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Candyce G. Perret,
Judges.

AFFIRMED.

Damon L. Beard
Todd A. Townsley
Sage Thibodeaux
Hannah E. Mayeaux
The Townsley Law Firm
3102 Enterprise Boulevard
Lake Charles, Louisiana 70601
(337) 478-1400
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Danielle Hebert
Danielle Hebert, on behalf of her minor son, Jarren Miller

René J. Pfefferle
Watson, Blanche, Wilson, & Posner
505 North Boulevard
Baton Rouge, Louisiana 70821-2995
(225) 387-5511
COUNSEL FOR DEFENDANTS/APPELLEES:
Jennings American Legion Hospital
LAMMICO

Julie Savoy
Michael A. Dalman
Gachassin Law Firm
Post Office Box 80369
Lafayette, Louisiana 70598
(337) 235-4576
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. Timothy Magann

CONERY, Judge.

In this medical malpractice action, we consider the issue of whether a medical

malpractice claim which arose from treatment for a child’s strep infection occurring

during the pandemic must first be presented to a medical review panel in light of the

Louisiana Health Emergency Powers Act, La.R.S. 29:760, et seq. The Act, in part,

imposes a heightened burden of proving gross negligence or willful misconduct. For

the following reasons, we maintain the trial court’s determination that the instant

claim arises under the Medical Malpractice Act requiring pre-trial submission to a

medical review panel.

FACTS AND PROCEDURAL HISTORY

Danielle Hebert sought treatment at an urgent care facility for her son Jarren

Miller on October 5, 2020. Five-year old Jarren was exhibiting high fever and

initially responded to treatment with Amoxicillin, Tylenol, and Motrin as prescribed

by the acute care clinic. Jarren’s symptoms worsened, and Ms. Hebert sought

emergency treatment for Jarren at the E.R. of the American Legion Hospital in

Jennings on October 10, 2020. She reported that Jarren’s fever had returned the

previous day, along with lethargy, body aches, and chills. Jarren had also developed

diarrhea on October 10, prompting Ms. Hebert to pursue further treatment at the E.R.

American Legion Hospital E.R. nursing staff observed at that time that the child had

an increased pulse, decreased blood pressure, and a widening pulse pressure.

On assessment, Admitting Physician Timothy Magann ordered various tests,

including one for Covid-19, but allegedly failed to order testing to rule out sepsis.1

Dr. Magann determined that Jarren was suffering from fever, viral syndrome, and

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Dr. Magann’s notes indicate that Ms. Hebert provided her son’s history. She reported
that the October 5, 2020 evaluation at urgent care revealed: “Neg Flu, Strep, Mono[.]”

dehydration. He treated the child with intravenous fluids, a corticosteroid, and

Tylenol. Dr. Magann noted that Jarren’s condition had improved in response to

treatment and that the child was feeling better. Dr. Magann discharged Jarren with

instructions for quarantine until the Covid-19 test results were received and

recommended a follow up visit with a pediatrician after forty-eight hours. Dr.

Magann provided no additional prescription medications and recommended that

Tylenol and Motrin be administered as needed. He also urged a return visit to the

hospital “tomorrow” if Jarren’s condition was not considerably improved.

On the following morning, Ms. Hebert called 911 after she found Jarren

bleeding from the mouth. Although he was initially transported to a Crowley

hospital, Jarren was transferred to Our Lady of Lourdes Hospital in Lafayette where

he was diagnosed with severe sepsis with septic shock. After Jarren’s legs became

cyanotic and swollen, Jarren was taken to Ochsner in New Orleans where he

ultimately underwent bilateral above-the-knee amputations.

Ms. Hebert, individually and on behalf of Jarren (Plaintiffs), filed this medical

malpractice claim on October 8, 2021, naming Jennings American Legion Hospital

(the Hospital), its insurer LAMMICO, and Dr. Magann as Defendants. Plaintiffs

styled their claims as ones for intentional tort and for gross and willful misconduct.

Plaintiffs simultaneously filed a request for the formation of a medical review panel

with the Commissioner of Administration.

In December 2021, the Hospital and LAMMICO filed an Exception of

Prematurity, noting that the matter had not yet gone before a medical review panel.

Dr. Magann filed a separate exception of prematurity. Defendants argued that a

medical review panel was required as Plaintiffs’ petition alleged medical malpractice

within the definition of La.R.S. 40:1231.1(A)(13) and under the six-factor test

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interpreting the Medical Malpractice Act as set forth in Coleman v. Deno, 01-1517

(La. 1/25/02), 813 So.2d 303. In support of their exceptions, Defendants provided

documentation regarding their respective qualified status. The Hospital also

submitted Jarren’s medical records from his October 10, 2020 treatment.

Opposing the exception, Plaintiffs argued that their claims are not premature

as they raised claims for intentional tort, gross negligence and/or willful misconduct.

Plaintiffs argued that La.R.S. 40:1231.1(A)(13) limits malpractice to “unintentional

tort[s.]” Plaintiffs contended, therefore, that the Medical Malpractice Act and its

requirement for pre-trial submission to a medical review panel is inapplicable to their

petition.

Plaintiffs further argued that their claim, which arose during the Covid-19

public health emergency, is governed by the Louisiana Health Emergency Powers

Act as provided by La.R.S. 29:760, et seq. rather than the Medical Malpractice Act.

They maintain that the primacy of La.R.S. 29:771(B)(2)(c)(i) pretermits the need to

submit claims to a medical review panel as the pertinent portion of the statute

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.”

In response, Defendants recognized the temporal applicability of the

Louisiana Health Emergency Powers Act but argued that the public health

emergency provision does not relieve Plaintiffs from following the Medical

Malpractice Act. Defendants instead argued that the two statutory provisions must

be harmonized, and that La.R.S. 29:771(B)(2)(c)(i) provides only a heightened

burden of proof for recovery on a medical malpractice action.

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Defendants further disputed Plaintiffs’ contention that claims for gross

negligence and/or willful misconduct are not the type of “unintentional tort” subject

to the Medical Malpractice Act pursuant to the definition of “malpractice” provided

by La.R.S. 40:1231.1(A)(13). To the extent Plaintiffs styled their claims as

intentional tort, Defendants maintained that Plaintiffs merely invoked the term,

describing only that Defendants made intentional treatment “choices.” Plaintiffs did

not allege that Defendants intended, desired, or knew that the result (amputation of

both legs above the knee) was substantially certain to follow.

The trial court heard the matter in March 2022. Ruling from the bench, the

trial court granted the exceptions, stating:

I don’t believe the emergency statute that was enacted takes this case
out of the Medical Malpractice Act. I don’t think it does. Also, there’s
the allegations in the petition - - you may say it’s intentional, but if you
look at the allegations, it’s either negligence, and I think the Medical -
- Medical Malpractice Act will cover the gross negligence issues that
were raised.

The trial court signed the judgment granting the exceptions of prematurity and

dismissing Plaintiffs’ claim on March 28, 2022.

Plaintiffs filed a timely appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assign the following as error on appeal:

1. Title 40 does not govern intentional or gross acts,
therefore, the trial court improperly sustained Defendants’ Exceptions
raising the objection of prematurity requiring Plaintiffs’ gross
negligence or willful misconduct claims to be reviewed by a medical
review panel.

2. Under a Public Health Emergency, Title 29 governs
Plaintiffs’ claims and Title 40, the Louisiana Medical Malpractice Act,
cannot form a basis for Defendants’ liability. Because Title 29 provides
the statutory framework for Plaintiffs’ claims and governs this action,
Plaintiffs’ Petition for Damages was not premature.

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LAW AND DISCUSSION

Exception of Prematurity

Louisiana Code of Civil Procedure Article 926(A)(1) provides for the

exception of prematurity. This dilatory exception questions whether the cause of

action has matured to the point where it is ripe for judicial determination. Kelleher

v. University Med. Ctr. Mgmt Corp., 21-00011 (La. 12/10/21), 332 So.3d 654. The

exception of prematurity subjects a medical malpractice claim against a qualified

health care provider to dismissal if “such claim has not first been reviewed by a pre-

suit medical review panel” as required by La.R.S. 40:1231.8. Id. at 657. In a medical

malpractice matter such as the present case, the exceptor must demonstrate that he

or she “is entitled to a medical review panel because the allegations fall within the

scope of the [Medical Malpractice] Act.” Id. The question of whether a medical

malpractice claim is within that scope is a question of law subject to the de novo

standard of review. Id.

With that standard in mind, we consider whether Plaintiffs’ claims must first

be submitted to a medical review panel.

The Medical Malpractice Act – Gross Negligence and Willful Misconduct

As they did below, Plaintiffs contend that their claims are not dictated by the

Medical Malpractice Act. Their argument is twofold. First, Plaintiffs maintain that

their petition alleges gross negligence, willful misconduct, and intentional tort by

Defendants, that such claims fall outside of the Medical Malpractice Act, and that

they do not, therefore, require submission to a medical review panel. Secondly, as

they did below, Plaintiffs point to the Louisiana Health Emergency Powers Act,

La.R.S. 29:760, et seq., noting that the subject treatment occurred during the Covid-

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19 global pandemic and that the Act supplants the Medical Malpractice Act in this

instance.

Typically, La.R.S. 9:2794(A) provides the burden of proof for medical

malpractice “based on the negligence” of a physician. As the parties acknowledge

however, the underlying medical treatment at issue in this case occurred in October

2020, well after the Governor’s March 11, 2020 declaration of a public health

emergency due to the pandemic. This court has recently explained that La.R.S.

29:771(B)(2)(c)(i) provides a “heightened burden of proof” against private health

care providers during the event of a public health emergency. Whitehead v. Christus

Health Cent. La., 21-764, p. 5 (La.App. 3 Cir. 6/8/22), 344 So.3d 91, 94 (emphasis

added). In this regard, La.R.S. 29:771(B)(2)(c)(i) provides:

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.

(Emphasis added.) The Whitehead panel identified the “obvious purpose” of this

modified burden of proof as the need “to allow health care providers to provide

medical care and treatment during a time of public health crisis without concerns of

liability for a patient’s poor outcome, unless the treatment decisions were grossly

negligent, or the provider’s misconduct was unlawful.” Id. at 95. As the more

specific statute, the panel explained that La.R.S. 29:771 prevails over the more

general malpractice statutes during a state of public health emergency and provides

the heightened burden of proof. Id.

Plaintiffs maintained that to the extent they have asserted gross negligence

and willful misconduct claims, La.R.S. 29:771, alone, is applicable. Plaintiffs point

out that the statute itself makes no reference to the Medical Malpractice Act and the

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necessity of prior submission to a medical review panel is unnecessary if the claims

are ones of gross negligence and/or willful misconduct. In this sense, Plaintiffs

suggest that claims of gross negligence and/or willful negligence stand apart and

distinct from the “unintentional tort” encompassed within the definition of

malpractice provide by the Medical Malpractice Act in La.R.S. 40:1231.1(A)(13).

Plaintiffs’ position was plainly rejected in Whitehead, however. The panel

noted that provisions regarding malpractice liability for state health care providers

do, in fact, exclude claims of gross negligence in certain circumstances or intentional

act. Whitehead, 344 So.3d 91 (citing La.R.S. 40:1237.1-1240). Whitehead,

however, did not involve state providers. Instead, like here, the defendants were

private health care providers for which “[n]o such similar provision exists in the

provisions of the act relating to malpractice liability for private health care services.”

Id. at 95.

Using principles of statutory construction, the Whitehead panel noted the

policies necessitated by the public health emergency and concluded that La.R.S.

29:771(B)(2)(c)(i)’s heightened burden of proof “‘during a declared state of medical

emergency prevails over the more general malpractice statutes.’” Id. at 95 (quoting

Lejeune v. Steck, 13-1017, p. 6 (La.App. 5 Cir. 5/21/14), 138 So.3d 1280, 1284, writ

denied, sub nom., Daigle v. Steck, 14-1408 (La. 10/3/14), 149 So.3d 800).

However, even during the time of a declared public health emergency, the

medical malpractice provisions for private health care providers continue to be found

in La.R.S. 40:1231.1-1231.10. Whitehead, 344 So.3d 91. In fact, La.R.S.

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40:1231.1(A)(13) defines malpractice by a private health care provider, in part, as

follows:

“Malpractice” means any unintentional tort … based on health care or
professional services rendered, or which should have been rendered, by
a health care provider, to a patient, including failure to render services
timely and the handling of a patient, … and also includes all legal
responsibility of a health care provider arising from acts or omissions.
. . . in the training or supervision of health care providers . . . .

(Emphasis added.)

As here, the Whitehead plaintiffs argued that their claims of gross negligence

and willful misconduct stand apart from the “unintentional tort” described in the

above definition. The Whitehead panel explained, however, that given the definition

provided by La.R.S. 40:1231.1(A)(13), courts of this state have determined that

claims for gross negligence of private health care providers are covered under the

Medical Malpractice Act. Whitehead, 344 So.3d 91 (citing Wesco v. Columbia

Lakeland Med. Ctr., 03-0328 (La.App. 4 Cir. 9/10/03), 862 So.2d 997, writ denied,

04-0525 (La. 4/30/04), 872 So.2d 490; Flood v. Pendleton Mem’l Methodist Hosp.,

02-0440 (La.App. 4 Cir. 7/17/02), 823 So.2d 1002, writ denied, 02-2206 (La.

11/8/02), 828 So.2d 1121). See also McDowell v. Garden Court Healthcare, L.L.C.,

54,645 (La.App. 2 Cir. 8/10/22), 345 So.3d 506. Thus, “any claims alleged by the

Whiteheads, other than intentional acts, must still first be presented to a medical

review panel.” Whitehead, 344 So.3d at 96.

Furthermore, since Whitehead’s release—and after the parties’ submission of

briefs in this case—the second circuit rendered McDowell v. Garden Court

Healthcare, L.L.C., 345 So.3d 506, a case in which the plaintiff similarly maintained

that her claims for gross negligence and willful misconduct were controlled strictly

by La.R.S. 29:771(B)(2)(c)(i), not the Medical Malpractice Act found in La.R.S.

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40:1231.1, et seq. The McDowell panel determined, however, that because the

plaintiff’s claims fell within the purview of the Medical Malpractice Act, that Act

required pre-trial submission to a medical review panel. Id.

As in this case, the subject medical treatment in McDowell occurred within

the pandemic and, thus, the heightened burden of La.R.S. 29:771(B)(2)(c)(i) was

applicable. Id. The second circuit remarked that:

The statutory law leaves no doubt “malpractice” under the MMA does
not include intentional acts; malpractice is specifically defined as “any
unintentional tort.” In turn, “tort” is defined as “any breach of duty or
any negligence act.” Although the MMA does not specifically
encompass “gross negligence,” it does not exclude the term from its
scope.

Id. at 511 (emphasis added).

Both Whitehead and McDowell undermine Plaintiffs’ argument regarding

their claims of gross negligence and willful misconduct. We maintain that reasoning

here, finding that Plaintiffs’ claims of gross negligence and/or wrongful misconduct

fall within the type of treatment-related “unintentional tort” described by La.R.S.

40:1231.1(A)(13). Those claims must therefore proceed to a pre-trial medical

review panel.

The Medical Malpractice Act – Intentional Tort

Whitehead was released only days before Plaintiffs’ submission of their

appellant’s brief to this court. Plaintiffs, in turn, have offered only cursory argument

regarding its applicability. In a single paragraph, Plaintiffs suggest that Whitehead

is inapplicable.2 Plaintiffs contend that unlike the Whitehead plaintiffs, they have

alleged claims of intentional acts in their petition and that Plaintiffs specifically

2
The same law firm representing Plaintiffs in this case represented the plaintiffs in
Whitehead.

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alleged that “Defendants made ‘willful, deliberate, and intentional choices’ which

‘made it predictable or substantially certain harm would occur to Jarren Miller.’”

Plaintiffs argue that “[s]uch claims of intentional acts, therefore, must proceed

outside the LMMA.”

Plaintiffs do not address, however, the remainder of Whitehead’s statement

regarding the nature of an intentional tort. Considering whether the petition before

it contained an allegation of an intentional tort, the Whitehead panel explained that

such a tort requires that the provider either: “‘(1) consciously desires the physical

result of his act[;] or (2) knows that the result is substantially certain to follow from

his conduct, whatever his desire may be as to that result.’” Whitehead, 344 So.3d at

96 (quoting Bazley v. Tortorich, 397 So.2d 475 (La.1981). The Whitehead petition,

however, included “no allegations against any of the Defendants that they actively

desired or knew the results of their actions would result in harm” to the plaintiffs’

child. Id. (emphasis added). The panel thus concluded that the plaintiffs failed to

allege an intentional tort and that the allegations sounded in negligence, requiring

submission to a medical review panel.

The application of the supreme court’s definition of intentional tort in the

medical malpractice context in Whitehead follows this court’s earlier decision in

Cudges v. Our Lady of Lourdes Hospital, 514 So.2d 195 (La.App. 3 Cir. 1987). In

Cudges, the panel explained that the plaintiff’s petition “allege[d] neither of the two

tests set forth by the Supreme Court in Bazley. And from the facts alleged (not legal

conclusions alleged), it does not appear that the conduct complained of constitutes

an intentional tort . . . [.]”3 Id. at 197 (emphasis added).

3
Ms. Cudges alleged that: “[B]y the neglect and intentional acts of hospital personnel
plaintiff received by intravenous administration a believed to be near fatal overdose of the drug

10

Rather, the panel in Cudges explained, “[i]t appears from the pleadings that

the acts complained of were ordinary hospital procedures which may or may not

have been done negligently, but were certainly not done with the intent to precipitate

the alleged consequences of the acts.” Id. (footnote omitted). The panel thereafter

applied Ms. Cudges’ factual allegations to the Bazley standard for an intentional tort,

explaining that:

[F]rom the facts alleged in plaintiff’s petition, we are unable to
conclude that (1) defendant’s employees consciously desired the
physical result of their acts, or (2) knew that the result was substantially
certain to follow from their conduct. It appears from the pleadings that
the acts complained of were ordinary hospital procedures which may or
may not have been done negligently, but were certainly not done with
the intent to precipitate the alleged consequences of the act.

Id. (emphasis added) (footnote omitted). Thus, the panel explained, the defendant’s

exception of prematurity should have been sustained as to all of the plaintiff’s

demands. Id.

Plaintiffs do not address Cudges, but, in disputing the applicability of

Whitehead, point to their assertion that Defendants made “willful, deliberate, and

intentional choices” which “made it predictable or substantially certain harm would

occur to Jarren Miller.”

Review of Plaintiffs’ petition, however, reveals that Plaintiffs have not alleged

specific facts pertaining to intentional acts as required by Bazley. Rather, the

Heprin causing a dramatic loss of blood pressure and near death condition . . . .” Id. at 196. Ms.
Cudges also alleged that:

“During the same hospital stay thru [sic] the direct negligence and/or intentional
acts of Our Lady of Lourdes Hospital personnel, while attempting to draw blood,
the unknown lab personnel continued to attempt to draw blood over the pleas of
complainant that ‘something was wrong,’ resulting in a venopuncture . . . Therefore,
defendant’s negligence and intentional act have caused complainant great pain . . .”

Id. at 197.

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conduct complained of was treatment related and characterized as having been

related to Defendants’ “intentional choices.” Like the petitions under review in

Whitehead and Cudges, Plaintiffs’ petition does not allege specific facts to

demonstrate that the defendant health care providers consciously desired the

physical result of their acts or knew that the result was substantially certain to follow

from their conduct. That deficiency of fact pleading, in turn, likewise distances

Plaintiffs’ claims from the definition of intentional tort provided by the supreme

court in Bazley, 397 So.2d 475.

Reference to McDowell, 345 So.3d 506, is particularly instructive. As did

Plaintiffs in this case, Ms. McDowell asserted that her claims of gross negligence

could not be reviewed by a medical review panel as the acts were intentional. The

second circuit panel, however, reviewed Ms. McDowell’s allegations under the

factors of Coleman v. Deno, 813 So.2d 303, emphasizing the final factor, which

addresses whether the tort alleged was intentional. Id. The second circuit explained

that Ms. McDowell’s allegations, “pertain to medical treatment and sound in medical

malpractice.” Id. at 512. The panel stated that “[t]he mere fact plaintiff has labeled

the alleged acts as ‘gross negligence’ and ‘willful misconduct’ is not determinative

of whether the alleged conduct falls under the MMA.” Id. The McDowell panel

found that the trial court had properly sustained the exception of prematurity and

explained that the issue before it—as here—was limited to one of prematurity. Id.

Any assertion that the complained of conduct actually breached the heightened

standard of La.R.S. 29:771(B)(2)(c)(i) remained for presentation to post medical

review panel proceedings.

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Plaintiffs’ factual allegations in this case similarly relate to treatment errors or

omissions by Defendants, obviously stemming from medical treatment and related

care as defined in La.R.S. 40:1231.1(A)(13), which again provides:

“Malpractice” means any unintentional tort or any breach of contract
based on health care or professional services rendered, or which should
have been rendered, by a health care provider, to a patient, including
failure to render services timely and the handling of a patient, including
loading and unloading of a patient, and also includes all legal
responsibility of a health care provider arising from acts or omissions
during the procurement of blood or blood components, in the training
or supervision of health care providers, or from defects in blood, tissue,
transplants, drugs, and medicines, or from defects in or failures of
prosthetic devices implanted in or used on or in the person of a patient.

(Emphasis added.) Plaintiffs’ petition as it pertains to the Hospital cites failures of

evaluation, treatment, documentation, communication, supervision/training of staff,

and the like. As for Dr. Magann, Plaintiffs alleged the same failures—largely word

for word—absent the allegations pertaining to training and supervision.

Moreover, following the analysis reflected in McDowell, Plaintiffs’ claims

satisfy the Coleman factors as they: 1) are treatment related or caused by a

dereliction of skill; 2) will require expert medical evidence as to standard of care; 3)

pertain to assessment of the patient’s condition; 4) occurred within the context of a

physician-patient relationship or within the hospital’s scope of activities; 5) will

require consideration of whether the injury would have occurred absent treatment;

and 6) are not alleged to have been intentional. See Coleman, 813 So.2d 303.

Pertaining to the sixth factor, whether or not the acts are alleged to have been

intentional, Plaintiffs argue that they alleged that each of Defendants’

actions/inactions constituted intentional and/or constituted gross negligence or

willful misconduct as Defendants made willful, deliberate and intentional choices

not to communicate and ignored the consequences of a sepsis diagnosis. Plaintiffs

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further asserted that: “These willful, deliberate, and intentional choices made it

predictable or substantially certain harm would occur to Jarren Miller. At a

minimum, these actions constituted an extreme departure from ordinary care and

made it predictable and substantially certain that harm to Jarren Miller [would

follow].”

As in Whitehead, however, Plaintiffs’ petition likewise contains “no

allegations against any of the Defendants that they actively desired or knew the

results of their actions would result in harm[.]” Whitehead, 344 So.3d at 96

(emphasis added.) Absent that allegation, Plaintiffs’ factual claims instead sound in

medical malpractice despite the Plaintiffs’ attempt to couch Defendants’ actions as

“intentional,” with no specific facts pleaded to demonstrate such intent.

This lack of factual pleading was found fatal to the plaintiff’s claim in Butler-

Bowie v. Olive Branch Senior Care Ctr., 52,520, p. 10 (La.App. 2 Cir. 2/27/19), 266

So.3d 478, 484. In that case, the second circuit explained that “something more than

a conclusory allegation of intentional conduct is required to state a cause of action.”

Rather, “[w]here special statutes limit the tort cause of action to claims based on

intentional conduct, the plaintiff is required to allege at least some facts; the mere

invocation of the word “intentional” will not create a cause of action.” Id. at 485

(emphasis added). The Butler-Bowie panel explained that the plaintiff in that case

had instead alleged negligence and substandard conduct, which fall under the

Medical Malpractice Act. Plaintiffs in this case similarly characterize “choices” as

intentional, but include no allegations regarding Defendants’ intent, desire, or

knowledge as to outcome as required for the definition of intentional tort as set forth

in Bazley, 397 So.2d 475.

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Accordingly, we conclude that each of Plaintiffs’ claims are encompassed

within the type of unintentional tort described in the Medical Malpractice Act and

thus require pre-trial submission to a medical review panel.

Strict Construction of the Medical Malpractice Act

In the remainder of their brief, Plaintiffs return to a position rejected in

Whitehead. Namely, they contend that the Medical Malpractice Act’s exclusive

remedy for unintentional tort must be strictly construed against health care providers

and should not be read to include actions for gross negligence or willful misconduct

which they, again, equate to an intentional tort. Plaintiffs maintain instead that

reference should be made to the Workers’ Compensation statutory scheme which

provides the exclusive remedy available to an injured employee but not for those

who have suffered an intentional tort.

The Whitehead panel found no merit in this conflation of gross

negligence/willful misconduct with an intentional tort and further recognized that

“even the Workers’ Compensation Act is still the exclusive remedy for gross

negligence claims.” Whitehead, 344 So.3d at 96. To the extent that Plaintiffs

reference intentional conduct in their petition, we have recognized above that the

Plaintiffs do not allege that Defendants consciously desired the harmful outcome or

that Defendants knew that the result was substantially certain to follow. As seen in

Whitehead, McDowell, and Butler-Bowie, such a failure supports the trial court’s

determination that the exception of prematurity must be sustained. We maintain that

reasoning here.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment of March 28,

2022 sustaining the Exception of Prematurity filed by Defendants/Appellees,

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Jennings American Legion Hospital and Louisiana Medical Mutual Insurance

Company, and the Exception of Prematurity filed by Defendant/Appellee Dr.

Timothy Magann. Costs of this proceeding are assessed to Plaintiffs/Appellants

Danielle Hebert, individually and on behalf of her minor son, Jarren Miller.

AFFIRMED.

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