K.P. v. LeBlanc

• Decision Date: 23 November 2010
• Docket Number: No. 09-31015,09-31015
• Citation: 627 F.3d 115
• Parties: K.P.; D.B., M.D.; Hope Medical Group for Women, Plaintiffs-Appellants, v. Lorraine LeBLANC, in her official capacity as Executive Director of the Louisiana Patient's Compensation Fund Oversight Board; Clark Cosse, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Melanie Firman, in her official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Vincent Culotta, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; William Schumacher, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Joseph Donchess, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Dionne Viator, in her official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Daniel Lennie, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Manuel Depascual, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

627 F.3d 115 K.P.; D.B., M.D.; Hope Medical Group for Women, Plaintiffs-Appellants, v. Lorraine LeBLANC, in her official capacity as Executive Director of the Louisiana Patient's Compensation Fund Oversight Board; Clark Cosse, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Melanie Firman, in her official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Vincent Culotta, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; William Schumacher, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Joseph Donchess, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Dionne Viator, in her official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Daniel Lennie, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board; Manuel Depascual, in his official capacity as a member of the Louisiana Patient's Compensation Fund Oversight Board, Defendants-Appellees. No. 09-31015. United States Court of Appeals, Fifth Circuit. Nov. 23, 2010.

Stephanie Toti, Staff Atty. (argued), Ctr. for Reproductive Rights, New York City, William E. Rittenburg, Rittenburg, Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiffs-Appellants.

Carlton Jones, III (argued), Roedel, Parsons, Koch, Blache, Balhoff & McCollister, A.L.C., Baton Rouge, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DENNIS, OWEN and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Physicians enrolled in the Louisiana Patient's Compensation Fund challenge the constitutionality of a state statute denying abortion providers the benefits of participation in the Fund. They seek to enjoin the Patient's Compensation Fund Oversight Board from using that statute to prevent processing and paying of abortion-related claims. The district court determined that the members of this Board were entitled to Eleventh Amendment immunity because they lacked sufficient connection with the challenged statute. We disagree and therefore REVERSE and REMAND.

I. STATEMENT OF FACTS

Hope Medical Group for Women ("Hope") provides women's health services, including elective abortions, in Shreveport, Louisiana. Plaintiffs K.P. and D.B. are both physicians who perform abortions at Hope.

Both K.P and D.B. are enrolled in the Louisiana Patient's Compensation Fund. The Fund was created by the 1975 Medical Malpractice Act ("the Med-Mal Act") in an effort to control the costs of medical malpractice insurance. The Fund's purpose is to make uniform compensation to patients claiming injuries as a result of medical malpractice. The Fund is a voluntary program for which all licensed and certified healthcare providers are eligible.

Participation in the program requires a healthcare provider to file an application and proof of financial responsibility with the Patients' Compensation Fund Oversight Board ("the Board"), which administers the Fund. Financial responsibility can be shown either by medical malpractice insurance coverage or $125,000 in cash or cash equivalents. Participating providers must also pay annual surcharges based on the risks associated with their respective practices and the claims history in those areas.

Healthcare providers that meet these requirements and pay the applicable charges are deemed qualified and are issued a certificate of enrollment. Once enrolled in the program, providers are eligible for significant benefits. Among these benefits is a cap on medical malpractice liability. A Fund participant's personal liability is limited to $100,000. Any damages in excess of that amount are paid by the Fund. Total recovery is limited to $500,000 plus future medical expenses. Qualified providers are also entitled to a medical review panel's expert opinion on whether the provider violated the standard of care. The panel's report is admissible in any subsequent civil proceeding.

In June 2007, a former Hope patient named Brittany Prudhome requested the formation of a Fund medical review panel to assess claims for injuries sustained during an abortion at Hope. Prudhome's complaint sought damages for medical negligence. She identified as defendants Doctors K.P. and D.B., as well as the clinic.

After reviewing her claim, the Board in July 2007 informed Prudhome that neither K.P. nor D.B. was qualified for Fund coverage as to her claim. The Board cited Louisiana Revised Statute Section 9:2800.12 as the reason it refused Prudhome's claim. That 1997 statute defines the tort liability of physicians who perform abortions. A doctor is liable for "any damage occasioned or precipitated by the abortion," including "injuries suffered or damages occasioned by the unborn child ...." La.Rev.Stat. Ann. § 9:2800.12(A), (B)(2). It further provides that "laws governing medical malpractice or limitations of liability thereof provided in [the Medical MalpracticeAct] are not applicable to this Section." Id. § 9:2800.12(C)(2).

Based on Section 9:2800.12, the Board reasoned that abortion providers were not entitled to participate in the Fund for abortion-related procedures. Despite the two doctors' enrollment in the Fund, the Board refused to convene a review panel to hear Prudhome's complaint. Prudhome subsequently filed suit against the doctors and Hope in state court.

In November 2007, the doctor identified as K.P. filed suit in the United States District Court for the Middle District of Louisiana. The Defendants were the members of the Board and also Lorraine LeBlanc, the Fund's Executive Director, named in their official capacities. Later, Hope and the doctor identified as D.B. became Plaintiffs. The suit challenged the constitutionality of Section 9:2800.12 both on its face and as applied. Specifically, Plaintiffs contended that the statute is unconstitutionally vague and violates the rights of physicians and their patients to equal protection and privacy as guaranteed by the Fourteenth Amendment. Plaintiffs requested declaratory and injunctive relief.

The Defendants filed a motion to dismiss on the grounds that they are immune from suit under the Eleventh Amendment. The district court dismissed the action, concluding that the statute in question did not charge these defendants with any particular enforcement authority. This appeal followed.

II. DISCUSSION

A. Mootness

After litigation commenced in this case, the Board in March 2008 agreed to convene a medical review panel to assess Prudhome's claims. In correspondence with Prudhome's attorney, the Board expressed a willingness to review the merits of her action but reserved the right to refuse payment if the Board later determined that abortion-related procedures were not covered by the Med-Mal Act. Defendants now assert that their determination to admit Prudhome's claim against the Plaintiffs moots this action.

Mootness exists when the actual controversy among the parties has ended. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir.2006). If accepting the claim for processing gives to the Plaintiffs everything the Defendants could properly be ordered to do by a court in this lawsuit, mootness might have arisen. The constitutional issues at the core of this litigation would be for another cast of players.

To understand whether the case is moot, we need to understand the role of the Defendants regarding a claim such as that presented by Prudhome. Among the actions the Board takes is to decide-as a gatekeeper, to use the parties' word-whether the claim is one it may accept. The Board has now changed positions on that, from its July 2007 denial to its March 2008 acceptance. In a letter dated March 12, 2008, the Board stated that the claim would be considered by a medical review panel. Relevant to mootness, though, the Board reserved its right to deny the coverage of the Fund if it is determined that the claim was not "malpractice" as defined by state law. The reservation was capitalized, presumably, because of its importance:

THE PATIENT'S COMPENSATION FUND AND THE OVERSIGHT BOARD RESERVE THE RIGHT TO DENY PCF COVERAGE FOR THOSE ALLEGATIONS DETERMINED TO BE OUTSIDE OF THE SCOPE OF MALPRACTICE AS DEFINED IN THE MEDICAL MALPRACTICE ACT.

Section 9:2800.12 was not cited, but it was the unnamed potential barrier to use of the Fund. The Board did not commit the medical review panel to completing its usual process for a claim and preparing a report.

The difficulties the panel would have in preparing a report can be seen from the panel procedures and responsibilities set out at some length in a section of the Med-Mal Act. See La.Rev.Stat. Ann. § 40:1299.47. The panel is to receive evidence, consult with experts if it desires, and then "express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care." Id. § 1299.47(F), (G). The panel report is admissible in a medical malpractice action. Id. § 1299.47(H). Section 9:2800.12, though, might make the report irrelevant because it provides that no standard of care will apply to damages resulting from abortions. Id. § 9.2800.12. Thus, it could be that the panel or the Board may decide that the report is useless to an abortion claim under Section 9:2800.12 and end up not preparing one. We find no concession by the Defendants that the medical review panel will actually prepare a report that will state an opinion on whether medical malpractice occurred.

The Board would again become involved in a claim such as Prudhome's at least by the time of a settlement between a patient and the abortion providers, or after a civil action were concluded. That is when the Board would decide whether an amount greater than the $100,000 that...