A normie friend asked me for my take on a recent Louisiana Supreme Court case, KATHLEEN WELCH AND CARROLL DEWAYNE WELCH VS. UNITED MEDICAL HEALTHWEST-NEW ORLEANS L.L.C. AND UNITED MEDICAL HEALTHCARE INC. (La. March 21, 2025).
The case involves the La. governor issuing various executive orders during Covid, “limiting gatherings and encouraging people to stay home” and also limiting liability of health care providers to cases of gross negligence or willful misconduct, under the Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760, et seq., which 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.”
As the case notes, “On March 11, 2020, Governor John Bel Edwards declared a public health emergency in connection with the COVID-19 pandemic.” (The federal limitation on liability of pharmaceutical companies has also been criticized by libertarians.) 1
It’s almost impossible to meet this standard of liability, as it’s much higher than the normal standard of negligence found in La. Civ. Code Art. 2315:
Art. 2315. Liability for acts causing damages
A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.
Welch sued for treatment from United Medical that resulted in injuries related to her pressure ulcers. However,
Because Welch’s treatment was during the declared public health emergency, United Medical argued its alleged liability is subject to a gross negligence or willful misconduct standard. Welch’s petition alleged only ordinary negligence, thus, United Medical moved for dismissal. Welch filed an opposition to the peremptory exception of no cause of action in which she made several arguments, including that the statute is unconstitutional.
As the court explained,
The rational desire was that healthcare workers show up to provide care in difficult and potentially life-threatening circumstances, despite the rest of the world being encouraged to stay home. By continuing to work, healthcare workers exposed themselves and their families to risks of an unknown virus. Should an act of alleged malpractice occur under those unprecedented circumstances, healthcare workers also risked potential liability. La. R.S. 29:771(B)(2)(c)(i) attempted to alleviate pressure on an overburdened healthcare system by limiting healthcare workers’ liability exposure to gross negligence or willful misconduct. Because of the extraordinary circumstances, healthcare workers were relieved of ordinary negligence. That policy decision encouraged healthcare workers to work through the emergency, which supported people’s access to medical services. Thus, the provision is rationally related to the state’s interest in ensuring access to medical care during a health emergency.
It has been argued that the statute should be applied only to COVID-19 related healthcare. However, LHEPA is drawn to cover all public health emergencies, not just COVID-19. Its aim is to ensure people’s access to essential services throughout the emergency, including medical care. La. R.S. 29:761(A)(2)(c-d). For example, if a person during a public health emergency is critically injured in a car accident, that person needs access to care. Healthcare workers are needed to work through the emergency for the system to remain open and functional for all patients. Here, Welch’s claim relates to healthcare, regardless of whether it is COVID-related. LHEPA’s liability provision rationally relates to its goal of protecting the availability of medical services during an emergency. This remains true, even if the medical services rendered did not relate to COVID-19.
The court upheld the declaration and the law.
My comments to my friend:
As far the result—many or most statutory laws are artificial, not based in natural law or reasoning, so the decisions of the judges are often arbitrary and not right or wrong. 2 John Hasnas is right about the myth of the rule of law, esp. when it comes to interpretation of statutory law—made up law, including state constitutions. They are all just legislation. 3
In my view state tort law did get out of hand in the 70s or whenever, leading to tort reform backlash. It’s no surprise government courts do a bad job of administering justice. 4 There should be tort law but it should be reasonable. (Anarchist theory relies heavily on tort law and insurance.) 5 On the other hand, the response should not be to swoop in with artificial statutory limits. In a libertarian system you would have open ended tort liability backed by insurance but it would be reasonable not insane. And there would be no state or statutes.
In today’s system you have one inefficient, statist system of tort law and courts against arbitrary limits imposed by the legislature, all governed by nebulous, arbitrary “due process” standards in yet another statist, arbitrary, legal-positivist written decree (the state constitution). I think there is no “right” or objective answer here. The courts have no choice but to try to construe the written arbitrary decrees placed in front of them.
In this case, I suppose the Court could have find the other way and cobbled together a written rationale for its decision, but instead it upheld the law. I can’t say that is an unreasonable holding by the Court, given that the judges have no power to really try to do justice but just to interpret words, as James Carter wrote in opposing the legislative codification of New York’s common law:
At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle! 6
I still do not quite get why Welch did not argue in the alternative that that the deprivation of due process violated the federal constitution via the 14th. I doubt she would have succeeded by why not allege it.
In any case, I read it. Seems like it was reasonably decided. As a libertarian I disagree with it for several reasons. First, if the state commandeers and monopolize an area of law like tort law it has an obligation to provide courts and standards to let people recover (I made a similar argument in favor of gay marriage previously: if the state insists on monopolizing the enforcement of contracts and related rights, and insists that you have to be “married” by its standards to qualify, then it must treat gay couples as “married,” unless it provides some other mechanism, like “matrimonial regimes”—e.g. “domestic partner regimes”–to uphold the contractual and other rights of citizens).
Here I think the state has no right to change the standard for normal negligence, in part because the Covid emergency was bullshit and did not give the state power to take rights way—not by a declaration of emergency, not by issuing executive orders “limiting gatherings and encouraging people to stay home” and not by limiting liability of health care providers to cases of gross negligence or willful misconduct. But then, I’m a libertarian, and anarchist, and think the state’s response to Covid was a crime. Like everything the state does.
- Jeffrey A. Tucker, “The Pandemic Excuse for a Corporatist Coup,” Brownstone Institute (July 11, 2024); Tucker’s tweet; Leslie Manookian, “Policy Imperatives for Health Freedom,” Brownstone Institute (October 3, 2024). [↩]
- Federal Judges Aren’t Real Judges; Another Problem with Legislation: James Carter v. the Field Codes; Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
- Hasnas, “The Myth of the Rule of Law.” [↩]
- Peter W. Huber, Liability: The Legal Revolution and Its Consequences (1988). [↩]
- Fraud, Restitution, and Retaliation: The Libertarian Approach; Hoppe, The Private Production of Defense, Ludwig von Mises Institute Essays in Political Economy (alternate version, from Journal of Libertarian Studies 14:1 (Winter 1998-1999): 27-52) (also in The Great Fiction). [↩]
- Another Problem with Legislation: James Carter v. the Field Codes. [↩]
