K.P. v. LeBlanc et al
Filing
115
ORDER& REASONS re: 93 MOTION for Summary Judgment filed by Bud Thompson, 94 MOTION for Summary Judgment filed by Lorraine LeBlanc, Kent Guidry, Joseph Donchess, James E. Hritz, Melanie Firman, M.D., Clark Cosse, Vincent Culotta, Manuel DePascual, Katharine C. Rathbun, M.D., 95 MOTION for Partial Summary Judgment filed by Delta Clinic Baton Rouge, Inc., D.B., M.D., Midtown Medical LLC, Causeway Medical Clinic, Bossier City Medical Suite, Hope Medical Group for Women, Women's Health Car e Center, Inc. ORDERED that 93 MOTION for Summary Judgment is GRANTED. FURTHER ORDERED that 94 MOTION for Summary Judgment is GRANTED. FURTHER ORDERED that 95 MOTION for Partial Summary Judgment is DENIED. FURTHER ORDERED that the parties shall advise the Court in writing and within 10 days whether any outstanding claims exist in this individual lawsuit, Civ. Act. 10-511. Signed by Judge Helen Ginger Berrigan on 2/22/12. (reference: 10-511)(PLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HOPE MEDICAL GROUP FOR WOMEN,
ET AL
CIVIL ACTION
VERSUS
NO. 07‐879 c/w 10‐511
Pertains to 10‐511
LORRAINE LEBLANC, ETC., ET AL
SECTION “C” (4)
ORDER AND REASONS
This matter comes before the Court on motions for summary judgment filed by
(1) the defendants, J. S. “Bud” Thompson, Jr., in his official capacity as Director of the
Louisiana Office of Risk Management (“Thompson”), (2) the defendants, Lorraine
LeBlanc, in her official capacity as Executive Director of the Louisiana Patient
Compensation Fund Oversight Board and Clark Cosse, Vincent Culotta, M.D., Kent
Guidry, Joseph Donchess, Melanie Firmin, M.D., Katharine Rathbun, M.D., Manuel
DePascual and James Hritz, in their official capacities as members of the Louisiana
Patient Compensation Fund Oversight Board and (3) the plaintiffs, Hope Medical
Group for Women, D.B., M.D. and K.P., M.D., Midtown Medical L.L.C., Delta Clinic
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Baton Rouge, Inc., Women’s Health Care Center, Inc., Bossier City Medical Suite, and
Causeway Medical Clinic. Rec. Docs. 93, 94, 95. Having considered the record, the
memoranda of counsel and the law, the Court finds that summary judgment is
appropriate as follows.
The individual plaintiffs are physicians who provide legal abortion services in
Louisiana. They challenge the constitutionality of Act 950, which affects coverage
under the Medical Malpractice Act, (Med‐Mal Act”) §40:1299.47K.1 and the Malpractice
Liability for State Services Act (MLSSA”), La. Rev. Stat. § 40:1299.39(A)(1)(a)(iv)(dd).2
In general, the challenged provisions of Act 950 exclude abortion providers from
coverage under the respective malpractice acts. The defendant Thompson is
responsible for the administrative management of claims under the MLSSA. The
remaining defendants are the executive director and members of the Louisiana Patient’s
Compensation Fund Oversight Board (“Board”), which has responsibility for the
This section provides:
The provisions of this Part shall not apply to any health care provider when
performing the elective termination of an uncomplicated viable pregnancy.
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This section provides:
However, no person or entity referenced in this Part shall be considered a “state
health care provider” or “person covered by this Part” when performing the
elective termination of an uncomplicated viable pregnancy.
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administration of the Louisiana Patient’s Compensation Fund (“Fund”) relative to the
Med‐Mal Act.
In this lawsuit, the plaintiffs seek both a declaration that Act 950 is
unconstitutional as applied to lawfully performed abortion procedures and an
injunction to that effect. In their cross‐motion for partial summary judgment, the
plaintiffs argue that Act 950 was enacted in 2010 to provide an independent basis for
excluding abortion providers from the benefits of the malpractice acts, in part because
of the disparity between expressed legislative intent that Act 950 apply to all lawful and
unlawful abortions, and the language of Act 950, which does not provide its own
definition of the word “viable.” The plaintiffs acknowledge that the application of the
definition of “viable” contained in La. Rev. Stat. § 40:1299.35.1(10)3 would result in Act
950 only applying to unlawful abortions. They seek assurances that this definition will
be considered by the defendants in applying Act 950.
“Viability” is defined in Section 40:1299.35.1(10) as follows:
“Viable” and “viability” each mean that stage of fetal development when, in the
judgment of the physician based upon the particular facts of the case before him,
and in light of the most advanced medical technology and information available
to him, there is a reasonable likelihood or sustained survival of the unborn child
outside the body of his mother, with or without artificial support.
The Court notes that the plaintiffs mis‐cite this section, and the defendants omit the first
part of the definition in their references. See e.g., Rec. Doc. 93 at 7; Rec. Doc. 94 at 7;
Rec. Doc. 95 at 6.
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The plaintiffs argue that Act 950 is unconstitutionally vague as applied to
lawfully performed abortions. They argue that it can be interpreted as its sponsor
intended it or as applying only to unlawful abortions and that this ambiguity renders
the statute unconstitutionally vague because it fails to give the plaintiffs reasonable
notice whether they are covered by the malpractice acts when performing lawful
abortions and because it invites arbitrary and discriminatory enforcement by the
defendants. Rec. Doc. 95 at 9.
The defendants do not dispute the facts set forth by the plaintiffs. They argue,
however, that “[t]here is a an established body of law defining the term ‘viable’ in the
context of abortion law.” Rec. Doc. 93 at 5; Rec. Doc. 94 at 5. “Even more important,
Louisiana law already defines ‘viable’ in the context of abortion legislation.” Id. In so
doing, the defendants refer to the statutory definition contained in La. Rev. Stat.
40:1299.35.1(10). Rec. Doc. 93 at 7; Rec. Doc. 94 at 7. The defendants argue that there is
no justiciable controversy and the suit should be dismissed for a lack of ripeness.
The parties agree that the argued ambiguity derives from comments made
during the legislative by one of the bill’s sponsors and from the preamble to the bill, not
the text of Act 950 itself. The parties agree that the comments by the legislator and the
preamble are not part of the statute. The plaintiffs want “some form of legally binding
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assurance” or “binding document that Defendants will not apply Act 950 to lawfully
performed abortion procedures” because they “rightly fear that Defendants are
positioning themselves to apply Act 950 to lawfully performed abortion procedures if
the relief requested by Plaintiffs is denied.” Rec. Docs. 95 at 1‐2; Rec. Doc. 111 at 2. The
defendants argue that they “should not be required to execute an affidavit stating that
they will not apply a statute in a manner which is not implicated by its clear wording.”
Rec. Doc. 102 at 6; Rec. Doc. 103 at 6. The defendants also state that they do “not
interpret or intend to apply Act 950 to lawful abortions, which would be beyond the
clear wording of the statute.” Rec. Doc. 112 at 5; Rec. Doc. 113 at 5.
For purposes of determining whether a case‐or‐controversy exists, “[o]ur
decisions have required that the dispute be ‘definite and concrete, touching the legal
relations of parties having adverse legal interests’; and that it be ‘real and substantial’
and ‘admi[t] of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a hypothetical
state of facts.’” Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118, 127 (2007). “‘Basically,
the question in each case is whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’”
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Id., quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).
The plaintiffs’ feared interpretation of Act 950 does not derive from the clear
language of the statute. The plaintiffs’ feared interpretation does not derive from
threats made by the defendants. Instead, the challenged word “viable” enjoys the
plaintiffs’ desired jurisprudential and statutory definition elsewhere and the
defendants, through counsel, affirmatively state that they will not apply Act 950 to
lawful abortions. The fact that the plaintiffs’ feared interpretation derives from relevant
but unenforceable periphery of the legislative process leading to the enactment of Act
950 may explain the cause of the plaintiffs’ concern, but it does not transform this
matter into “a case of actual controversy” for purposes of the Declaratory Judgment
Act, 28 U.S.C. § 2201. Under these circumstances, the plaintiffs’ challenge to Act 950 is
reduced to the hypothetical.
In any event, the facts of this case call for judicial restraint. “The Declaratory
Judgment Act provides that a court ‘may declare the rights and other legal relations of
any interested party,’ ... not that it must do so.” Medimmune, 549 U.S. at 136 (emphasis
original). “This text has long been understood ‘to confer on federal courts unique and
substantial discretion in deciding whether to declare the rights of litigants.” Id. This
case affects the federal‐state relationship. The Court will not assume either that the
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substance of Act 950 is unconstitutional or that the defendant state actors will execute
Act 950 in an unlawful way or contrary to their express representations in this matter.
Whatever perceived threat made in the legislative process has been undone in
this lawsuit. There is no threat that Act 950 will be applied to legally performed
abortions.4
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by J. S. “Bud”
Thompson, Jr., in his official capacity as Director of the Louisiana Office of Risk
Management is GRANTED. Rec. Doc. 93
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Lorraine LeBlanc, in her official capacity as Executive Director of the Louisiana Patient
Compensation Fund Oversight Board and Clark Cosse, Vincent Culotta, M.D., Kent
Guidry, Joseph Donchess, Melanie Firmin, M.D., Katharine Rathbun, M.D., Manuel
DePascual and James Hritz, in their official capacities as members of the Louisiana
Patient Compensation Fund Oversight Board is GRANTED. Rec. Doc. 94.
IT IS FURTHER ORDERED that the cross‐motion for partial summary judgment
The Court notes that the details of the proposed “legally binding document”
reflecting the parties’ agreement are not provided by the plaintiffs. The Court can not
easily envision how it would “force” the defendants to sign such an document or how it
would “force” its effect on the successors of the defendants.
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filed by Hope Medical Group for Women, D.B., M.D. and K.P., M.D., Midtown Medical
L.L.C., Delta Clinic Baton Rouge, Inc., Women’s Health Care Center, Inc., Bossier City
Medical Suite, and Causeway Medical Clinic is DENIED, Rec. Doc. 95.
IT IS FURTHER ORDERED that the parties shall confer and advise the Court in
writing and within 10 days whether any outstanding claims exist in this individual
lawsuit, Civ. Act. 10‐511.
New Orleans, Louisiana, this 22nd of February, 2012.
___________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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