Belcher et al v. Lopinto et al, No. 2:2018cv07368 - Document 36 (E.D. La. 2019)

Court Description: ORDER AND REASONS - IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 17 ) by Defendants CorrectHealth Jefferson, LLC, and Ironshore Specialty Insurance Company is DENIED, as set forth in document. Signed by Judge Jane Triche Milazzo on 2/8/2019. (sa)

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Belcher et al v. Lopinto et al Doc. 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JAYNE BELCHER ET AL. CIVIL ACTION VERSUS NO: 18-7368 SHERIFF JOSEPH LOPINTO, III, ET AL. SECTION: “H” ORDER AND REASONS Before the Court is a Motion to Dismiss (Doc. 17) by Defendants CorrectHealth Jefferson, LLC (“CorrectHealth”) and Ironshore Specialty Insurance Company (“Ironshore”). Defendants argue that “the Louisiana Medical Malpractice Act applies to Plaintiffs’ claims” against them, and that such claims should be dismissed as premature because of Plaintiffs’ failure to comply with certain requirements of the Act. 1 In both their Complaint and their First Amendment Complaint, however, Plaintiffs specifically waived any claims they may have had against Defendants under the Louisiana Medical Malpractice Act. 2 Moreover, Plaintiffs’ “claim of deliberate medical indifference under the Fourteenth Amendment asserts a claim based on the violation of constitutional civil rights 1 2 Doc. 17-1 at 3. Doc. 1 at 15, ¶ 83 (“Plaintiffs are not proceeding under the Louisiana Medical Malpractice Act.”); Doc. 32 at 16, ¶ 83 (same). 1 Dockets.Justia.com under 42 U.S.C. § 1983, and therefore the Louisiana Medical Malpractice Act does not apply.” 3 Similarly, because “the Louisiana Medical Malpractice Act defines malpractice as an ‘unintentional tort or breach of contract,’” the Act also does not apply to Plaintiffs’ Louisiana law intentional infliction of emotional distress claims. 4 CONCLUSION For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED. New Orleans, Louisiana this 8th day of February, 2019. ____________________________________ JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE 3 4 Colbert v. City of Baton Rouge/Par. of E. Baton Rouge, No. CV 17-28, 2018 WL 344966, at *7 (M.D. La. Jan. 9, 2018). Bailey v. E.B.R. Par. Prison, No. 12-224, 2015 WL 545706, at *3 (M.D. La. Feb. 9, 2015) (emphasis in original) (quoting LA. REV. STAT. § 40:1231.1(A)(13)). 2

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