No End-Run Around Louisiana’s LHEPA: Plaintiffs Must Plausibly Plead Gross Negligence or Willful Misconduct—and Relabeling as Contract Won’t Avoid the Shield

Ware v. Irving Place (5th Cir. Oct. 29, 2025)

Introduction

In this unpublished, per curiam decision, the Fifth Circuit affirmed the dismissal with prejudice of medical malpractice and breach of contract claims brought by the son of a nursing home resident who died during Louisiana’s COVID-era public health emergency. The case, arising from alleged care deficiencies at a nursing facility, squarely addresses two recurring pandemic-era litigation issues: (1) the pleading burden a plaintiff must meet to overcome the Louisiana Health Emergency Powers Act (LHEPA) liability shield, and (2) whether plaintiffs can circumvent that shield by recasting care-related grievances as breach-of-contract claims.

The panel held that the complaint did not plausibly allege gross negligence or willful misconduct, as required to evade LHEPA immunity, and that labeling the claim as a contract action did not change that outcome. While noting some confusion in district court opinions about the gross-negligence standard (particularly where courts have cited intentional-tort cases), the Fifth Circuit found any such error harmless here because the pleaded facts fell short under any proper gross negligence benchmark.

Parties:

• Plaintiff–Appellant: Christopher Ware, individually and on behalf of the Estate of Gwendolyn Wright.
• Defendant–Appellee: Irving Place Associates, L.P., d/b/a Highland Place Rehab and Nursing Center.

Key issues presented:

• What factual specificity is required to plausibly plead gross negligence or willful misconduct to avoid LHEPA immunity at the motion-to-dismiss stage?
• Can plaintiff evade LHEPA’s liability shield by repackaging care-related allegations as breach of contract?
• Does the temporal and causal relationship between alleged care lapses and a death weeks later suffice to meet plausibility under Twombly/Iqbal?

Summary of the Opinion

The Fifth Circuit affirmed the district court’s dismissal with prejudice. The court held:

• LHEPA shields healthcare providers from civil liability during a declared public health emergency unless the plaintiff plausibly alleges gross negligence or willful misconduct (La. R.S. § 29:771(B)(2)(c)(i)).
• The complaint’s specific factual allegations—delayed transfer after an alleged hypoxia episode, a period of being left unattended, and later emergency transport—did not plausibly support an inference that decedent’s death nearly three weeks after the initial episode was caused by gross negligence or willful misconduct.
• Although the district court’s discussions of “gross negligence” cited cases distinguishing negligence from intentional torts (which could suggest too high a bar), any such confusion was harmless because the pleaded facts still did not meet gross negligence.
• Recasting the same conduct as a breach of contract did not avoid LHEPA: plaintiff did not argue that contract claims are excluded from the statute’s shield, most alleged conduct predated the contract’s execution, the contract language did not guarantee “around-the-clock, one-on-one services” (it contemplated provision or assistance in procuring such services), and no plausible gross negligence or willful misconduct in any material breach was pleaded.
• The contract could be considered at the Rule 12 stage under the incorporation-by-reference doctrine (Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).

Analysis

Precedents and Authorities Cited

• LHEPA (La. R.S. § 29:771(B)(2)(c)(i)). The statute creates a broad immunity for healthcare providers during a declared public health emergency, with a carve-out only for “gross negligence” or “willful misconduct.” The Fifth Circuit’s analysis proceeds from the premise—undisputed on appeal—that the events occurred during such an emergency and that LHEPA applies to the claims.
• Pleading Standards: Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The court emphasized that “threadbare” or “conclusory” allegations do not suffice; a complaint must plausibly allege facts supporting a viable claim.
• Gross Negligence Articulation in District Courts: Baele v. Univ. Healthcare Sys., L.L.C., 2024 WL 3105009 (E.D. La. June 24, 2023). The district court used Baele’s description of gross negligence as “the want of even slight care and diligence” (a capacious, but still demanding, standard). The panel noted that some authorities cited in Baele—Morrow v. La. Med. Mut. Ins. Co., 361 So. 3d 986 (La. App. 1 Cir. 2023), and Whitehead v. Christus Health Cent. La., 344 So. 3d 91 (La. App. 3 Cir. 2022)—actually distinguished intentional torts from negligence, not gross negligence from ordinary negligence. The Fifth Circuit flagged this potential conflation but deemed it harmless on these facts.
• Incorporation by Reference: Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000). Because the contract was attached to the motion to dismiss, relied on in the complaint, and central to the claims, the court appropriately considered its text in evaluating the breach-of-contract theory at Rule 12(b)(6).

Legal Reasoning

1) LHEPA’s Threshold and the Twombly/Iqbal Filter. The court began from LHEPA’s statutory framework: during a public health emergency, health-care providers enjoy immunity from civil liability except where plaintiffs plausibly allege gross negligence or willful misconduct. That exception imports a heightened culpability beyond ordinary negligence. The federal plausibility standard screens out complaints supported by “labels and conclusions” or speculative links between alleged acts and injuries.

2) Applying the Exception: Are the Allegations of Gross Negligence or Willful Misconduct Plausible? The complaint alleged that (a) the facility failed to stabilize the resident during a hypoxia episode on November 19, 2021, delaying transfer for roughly 26 hours; (b) the resident was left unattended for several hours on November 29, 2021; and (c) she experienced breathing difficulties leading to emergency transport. The court held these facts, taken as true, did not plausibly support that the facility’s conduct rose to gross negligence or willful misconduct, nor that such conduct caused the resident’s death on December 9, 2021—almost three weeks after the initial episode. The temporal gap and the lack of concrete facts showing “want of even slight care” or a willful disregard of risk undermined plausibility.

The panel acknowledged the plaintiff’s criticism that the district court applied too “high” a gross-negligence standard, because the lower court cited sources distinguishing negligence from intentional torts. The Fifth Circuit clarified that such citations may suggest an overly stringent threshold; however, the outcome did not depend on any heightened standard. Under a properly understood gross negligence test, the pleaded facts still fell short.

3) Breach of Contract Does Not Avoid LHEPA. Turning to the contract claim, the court emphasized that the plaintiff did not contend LHEPA’s shield excludes contract theories. The only specific post-contract allegation was that the resident was left unattended for several hours on November 29. Moreover, the contract’s language did not promise absolute “around-the-clock, one-on-one services”; it contemplated that the facility would provide such services or assist in procuring them. Reading the contract alongside the sparse post-contract facts, the court found no plausible inference of gross negligence or willful misconduct in any material breach.

4) Procedural Posture Reinforces Dismissal with Prejudice. The negligence-based malpractice claim had already been dismissed with prejudice. The second amended complaint’s gross-negligence allegations were, in substance, a repackaging of the same ordinary-negligence theory—insufficient under LHEPA. Given the pleading deficiencies and the statutory shield, dismissal with prejudice was affirmed.

Impact and Practical Implications

Although unpublished, this decision delivers several practical signals for litigants and district courts in LHEPA-governed cases:

• Pleading burden is exacting. To avoid LHEPA immunity, plaintiffs must allege concrete, nonconclusory facts that, if true, show conduct amounting to gross negligence (e.g., the “want of even slight care”) or willful misconduct, and they must plausibly connect that conduct to the injury or death. General assertions that “standard of care was not met” will not suffice.
• Causation matters—especially with temporal gaps. A lapse followed by death weeks later requires specific, medically coherent allegations tying the lapse to the ultimate harm. The further in time the injury is from the alleged misconduct, the more particularized the pleading must be to remain plausible.
• No contract end-run. Where the gravamen is provision of healthcare during the emergency, labeling the claim “breach of contract” is unlikely to defeat LHEPA’s shield. Courts will examine the actual contract language (via incorporation by reference) and still require plausible allegations of gross negligence or willful misconduct related to any material breach.
• Clarifying the gross-negligence standard. The panel implicitly cautions against conflating intentional-tort standards with gross negligence. While not purporting to fix a definitive articulation, the court suggests that using intentional-tort benchmarks may overstate the burden. Even so, plaintiffs must plead more than ordinary negligence.
• Early resolution is likely where complaints are sparse. Defendants can leverage Twombly/Iqbal to obtain dismissal at Rule 12 if the complaint lacks specific facts showing aggravated fault and causal connection. Plaintiffs should anticipate this and plead detailed facts from the outset.

For plaintiffs, actionable detail might include, for example: explicit orders ignored; monitoring discontinued despite known acute risk; documented warnings deliberately disregarded; refusal to transfer despite objectively emergent criteria; or other facts evincing “even slight care” was absent or that harm was known and substantially certain to follow. For defendants, invoking LHEPA alongside the contract’s actual provisions—and highlighting pre-contract chronology—can be decisive at the pleadings stage.

Complex Concepts Simplified

• LHEPA (Louisiana Health Emergency Powers Act): A statute granting civil liability immunity to healthcare providers for acts or omissions during a declared public health emergency, unless the plaintiff proves gross negligence or willful misconduct (La. R.S. § 29:771(B)(2)(c)(i)).
• Gross Negligence vs. Ordinary Negligence: Ordinary negligence is a failure to exercise reasonable care. Gross negligence, by contrast, has been described as the “want of even slight care and diligence”—conduct so egregious it reflects a near-total disregard for duties of care. It is less than an intentional tort, which requires a purpose or substantial certainty of causing harm.
• Willful Misconduct: Deliberate wrongdoing or intentional acts done with knowledge of likely harm. It exceeds negligence and often involves a conscious choice to disregard risk.
• Twombly/Iqbal Plausibility: Federal courts require a complaint to allege enough factual matter to make a claim “plausible on its face,” not just possible. Conclusory statements without factual support cannot carry a claim past a motion to dismiss.
• Incorporation by Reference: On a motion to dismiss, courts may consider documents attached to the motion when the complaint references them and they are central to the claim (Collins v. Morgan Stanley Dean Witter).
• Dismissal with Prejudice: The claim is dismissed permanently and cannot be refiled. Reasserting it in an amended complaint is improper.

Conclusion

Ware v. Irving Place reinforces a straightforward but potent lesson of pandemic-era litigation in Louisiana: LHEPA’s liability shield is robust, and plaintiffs must meet a high—but not impossible—pleading bar to invoke the gross negligence or willful misconduct exception. Threadbare allegations of substandard care, without concrete facts demonstrating aggravated fault and a plausible causal nexus to the ultimate harm, will not survive Rule 12 scrutiny.

The decision also cautions against attempts to sidestep the statute by rebranding care-based grievances as contract disputes. Courts will review the actual contract language and, if the claim arises from the provision of healthcare during the emergency, apply the same LHEPA framework—demanding specific facts amounting to gross negligence or willful misconduct.

Finally, while the panel flags confusion stemming from district court citations that blur gross negligence with intentional tort standards, it leaves no doubt that, even under a correctly framed gross negligence test, the allegations here fell short. For future cases, the opinion offers practical guidance: plead concrete, causally specific facts showing extreme carelessness or deliberate disregard, or expect early dismissal.