KP v. LeBlanc

REVISED January 12, 2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 23, 2010
No. 09-31015
Lyle W. Cayce
Clerk

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

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

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
 No. 09-31015

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

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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 Malpractice Act] 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.

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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.

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 No. 09-31015

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

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 No. 09-31015

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 the medical provider has to
pay should be paid by the Fund. Id. § 1299.44(B)(2)(A). We do not see specific
reference in that section to an obligation of the Board to determine whether the
claim is one covered by the Fund. Elsewhere, though, the Med-Mal Act declares
that the Fund is not “liable for any sums except those arising from medical
malpractice.” Id. § 1299.41(I). The Med-Mal Act under which the Fund
operates is specifically made inapplicable by Section 9:2800.12.
We know from the evidence that the Board has taken the position that the
Fund is not available to pay claims that are affected by Section 9:2800.12. That
view is unremarkable, as the statute clearly prohibits use of the Fund for
abortion claims that are brought under Section 9:2800.12. A Louisiana
“administrative agency does not have the authority to determine the
constitutionality of statutes.” Albe v. La. Workers Comp. Corp., 700 So. 2d 824,
828 (La. 1997). The Board has to apply statutes as written. This litigation calls
on the Board to defend the statute, not to question it.
The only basis argued for mootness is that in March 2008, the Board
agreed after this litigation commenced to have the Prudhome claim considered
by a medical review panel. At best, this is a voluntary cessation of one effect of
the earlier announced refusal to allow use of the Fund for abortion claims.
Voluntary cessation even of all the conduct being challenged in a lawsuit does
not moot a case. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 324 (5th Cir.
2009). A defendant, without court compulsion, could legally return to its former

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ways. The defendants, who are the ones asserting mootness, must convince us
that there is no reasonable prospect that what the plaintiffs allege as the cause
of their injury will recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 189 (2000). We are not convinced.
This suit is not moot.
B. Standing
Neither party has raised the issue of standing. We should address
standing, though, when there exists a significant question about it. See Doe v.
Tangipahoa Parish Sch. Bd., 473 F.3d 188, 194 (5th Cir. 2006). We raise the
point because of the similarity of the present action to a case heard en banc by
this court in 2001. Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc).
There, a physician who performed abortions challenged the constitutionality of
Section 9:0028.12. Id. at 409. Like the Plaintiffs here, a doctor sought to enjoin
enforcement of the statute. Id. Named as defendants in that suit were the
Attorney General and the Governor of Louisiana, who asserted Eleventh
Amendment immunity as a defense. Id. at 410.
The district court in Okpalobi declared the statute unconstitutional; a
panel of this Court affirmed. Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999),
superseded by Okpalobi, 244 F.3d 405 (en banc). The en banc Court reversed the
district court because ten of the fourteen judges agreed that the Plaintiffs lacked
Article III standing. Okpalobi, 244 F.3d at 429.
Article III of the United States Constitution grants jurisdiction to the
federal courts only over claims that constitute “cases” or “controversies.” U.S.
Const. art. III, § 2, cl. 1. Federal courts should exercise power only “in the last
resort[ ] and as a necessity . . . and only when adjudication is consistent with a
system of separated powers and the dispute is one traditionally thought to be
capable of resolution through the judicial process.” Allen v. Wright, 468 U.S.
737, 752 (1984) (citations, brackets, and quotation marks omitted).

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Article III standing requires an injury-in-fact caused by a defendant's
challenged conduct that is redressable by a court. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). We discuss all three components.
1. Injury-in-fact
An injury sufficient to confer standing is both “concrete and particularized”
and “actual or imminent.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir.
2009). The initial alleged injury was the failure of the defendants to convene a
medical review panel. A panel was subsequently convened, a fact we discussed
earlier regarding mootness. Plaintiffs also complain that they sustained actual
pecuniary injuries when they were refused the benefits otherwise associated
with their paid membership in the Fund. For example, they are subject to
unlimited liability for the performance of abortion procedures because the
liability caps of the Fund are not being applied to their abortion patients. The
uncapped liability likely affects malpractice insurance rates.
We conclude that being denied these and other protections of the Med-Mal
Act is a “direct pecuniary injury” that generally is sufficient to establish injury-
in-fact. See Henderson v. Stalder, 287 F.3d 374, 379 (5th Cir. 2002).
Admittedly, the injury alleged here is not as concrete as some might be.
The Plaintiffs’ liability for suits filed by Prudhome or other future patients has
not yet materialized. Still, both this court and the Supreme Court have
generally permitted future events which are sufficiently likely to occur to serve
as a basis for standing when the plaintiffs, as here, are seeking injunctive relief.
For example, the Supreme Court has determined that a “real and immediate
threat of future injury” is sufficient to confer standing to pursue an injunction
so long as that threat is not merely conjectural. City of L.A. v. Lyons, 461 U.S.
95, 107 n.8 (1983). We have also held that in order to have standing to seek
injunctive relief, plaintiffs must demonstrate that they are “likely to suffer
future injury by the defendant.” James v. City of Dallas, 254 F.3d 551, 563 (5th

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Cir. 2001). Given the imminent threat posed by Prudhome’s suit – and the
probability of future suits of the same type – it is sufficiently likely that the
physicians will face liability for abortion-related procedures.
Plaintiffs have alleged a sufficient injury-in-fact.
2. Causation
Whether a defendant’s actions caused a plaintiff’s injuries must be
assessed. The Defendant Board is responsible for administering the benefits the
Plaintiffs claim to have been denied. Members of the Board serve as initial
arbiters of compensable claims under the Fund. Although the Board cannot
prevent a private litigant from pursuing relief in Louisiana court, it can
unilaterally preclude the Plaintiffs from claiming the benefits of limited liability
and independent medical review. It can subsequently refuse to recognize the
right to call on the Fund to pay a settlement or court judgment. This places the
Defendants among those who would contribute to Plaintiffs’ harm. The Board
is the body with the initial authority to disburse or withhold the benefits
associated with Fund membership.
Although the Board’s decision could be overridden by a court, that does not
block the tracing of the injury to these Defendants. Tracing an injury is not the
same as seeking its proximate cause. Bennett v. Spear, 520 U.S. 154, 168-69
(1997). Because the Defendants significantly contributed to the Plaintiffs’
alleged injuries, Plaintiffs have satisfied the requirement of traceability.
3. Redressability
Redressability was a key basis for the Okpalobi court’s holding that those
plaintiffs did not have standing. Okpalobi, 244 F.3d at 426-28. The court
concluded that the Governor and Attorney General could not prevent private
litigants from prosecuting causes of action pursuant to Section 9:2800.12. Id. at
428-29. The Board cannot either. The Board can, though, start the process for
considering a claim against an abortion provider under the Med-Mal Act, or it

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can refuse to do so. Until March 2008, it refused. Even if the Board convenes
a medical review panel, what the panel would do is unclear. It is supposed to
state an opinion about whether a physician has met the standard of care. For
abortion claims under Section 9:2800.12, though, such a standard may not
matter. Finally, the Board can refuse to pay a claim if it determines malpractice
legally was not involved.
We acknowledge that the Board is far from the sole participant in the
application of the challenged statute. For example, litigants may bypass the
Board and proceed directly in the courts. But at several points, Section
9:2800.12 impacts the Board’s actions sufficiently to confer standing on these
Plaintiffs. “[A] plaintiff satisfies the redressability requirement when he shows
that a favorable decision will relieve a discrete injury to himself. He need not
show that a favorable decision will relieve his every injury.” Larson v. Valente,
456 U.S. 228, 243 n.15 (1982). This distinguishes the Board’s role from that of
the Governor and Attorney General in Okpalobi. Those two officials were found
not to have “any duty or ability to do anything” relating to enforcement of the
statute. Okpalobi, 244 F.3d at 427. Here, the Board has definite responsibilities
relating to the application of Section 9:2800.12. Perhaps this distinction was
sufficiently obvious that the Defendants decided not to contest standing.
Plaintiffs have standing to seek relief from these Defendants.
C. Eleventh Amendment Immunity
The Eleventh Amendment bars suits by private citizens against a state in
federal court. See Hutto v. Finney, 437 U.S. 678, 700 (1978). The bar applies not
only to the state itself, but also protects state actors in their official capacities.
See Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 320 (2008).
We review de novo a district court’s order granting a motion to dismiss on
Eleventh Amendment grounds. Hudson v. City of New Orleans, 174 F.3d 677,
682 (5th Cir. 1999).

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The Supreme Court carved out a narrow exception to the Eleventh
Amendment in Ex Parte Young, 209 U.S. 123 (1908). The rule is based on the
legal fiction that a sovereign state cannot act unconstitutionally. Id. at 159.
Thus, where a state actor enforces an unconstitutional law, he is stripped of his
official clothing and becomes a private person subject to suit. Id. at 160.
In order to use the Ex Parte Young exception, a plaintiff must demonstrate
that the state officer has “some connection” with the enforcement of the disputed
act. Id. at 157. The connection requirement exists to prevent litigants from
misusing the exception. There are plenty of state actors. A plaintiff must show
that the defendant state actors “have the requisite ‘connection’ to the statutory
scheme to remove the Eleventh Amendment barrier to suits brought in federal
court against the State.” Okpalobi, 244 F.3d at 410-11.
Ex Parte Young gives some guidance about the required “connection”
between a state actor and an allegedly unconstitutional act. “The fact that the
state officer, by virtue of his office, has some connection with the enforcement of
the act, is the important and material fact, and whether it arises out of the
general law, or is specially created by the act itself, is not material so long as it
exists.” Ex Parte Young, 209 U.S. at 157.
Defendants rely heavily on the lead opinion in Okpalobi for the proposition
that a “special” relationship – not just “some connection” – needs to exist.
Okpalobi, 244 F.3d at 414. Because that part of the en banc opinion did not
garner majority support, the Eleventh Amendment analysis is not binding
precedent. See United States v. Ferguson, 211 F.3d 878, 885 (5th Cir. 2000).
We need not resolve whether Ex Parte Young requires only “some
connection” or a “special relationship” between the state actor and the
challenged statute. We conclude that the Board falls within Ex Parte Young
under either standard. As noted above, the state actor must be connected with
an act’s “enforcement” for the exception to apply. Ex Parte Young, 209 U.S. at

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157. “Enforcement” typically involves compulsion or constraint. Webster’s Third
New International Dictionary 751 (1993). By excluding abortion-related
procedures from the coverage of the Med-Mal Act, Section 9:2800.12(C) implicitly
requires the Board to differentiate between claims allowable and not allowable
under the statute. By saying that only malpractice claims can be paid from the
Fund, the Med-Mal Act also requires the Board to determine whether a claim
presented to it has been statutorily excluded by Section 9:2800:12 from coverage.
La. Rev. Stat. Ann. § 40:1299.41(I).
In summary, the Board’s role starts with deciding whether to have a
medical review panel consider abortion claims and ends with deciding whether
to pay them. By virtue of these responsibilities, Board members are delegated
some enforcement authority. Indeed, the evidence in this record indicates that
the Board took an active role in enforcing Section 9:2800.12 as to Brittany
Prudhome. When she brought her claim to the Board, she was instructed that
she was without recourse under the Fund and should instead submit her claim
to the courts. The Board enforces Section 9:2800.12 by applying its prohibitions.
The Defendants have the requisite connection with Section 9:2800.12 to
fall within the Ex Parte Young exception. Consequently, this suit is not barred
by the Eleventh Amendment.
We REVERSE and REMAND for further proceedings.

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DENNIS, Circuit Judge, concurring.
I fully concur in Judge Southwick’s opinion for the court, but also write
separately to make a few additional observations. The Louisiana statute that
the plaintiffs seek to challenge, La. Rev. Stat. Ann. § 9:2800.12, contains an
ambiguity which, although not dispositive, is relevant to the standing and
Eleventh Amendment analyses. Judge Southwick’s opinion refrains from
addressing this ambiguity, but quite rightly holds that the plaintiffs in this case
have standing and that the suit is not barred by the Eleventh Amendment
regardless of how the ambiguity should be resolved. However, my agreement
with the court’s holdings is strengthened by my understanding of the meaning
and effect of § 9:2800.12, which is as follows.
Section 9:2800.12(A) creates a private civil cause of action under which
“[a]ny person who performs an abortion is liable to the mother of the unborn
child for any damage occasioned or precipitated by the abortion.” The statute
does not specify a standard of care; consequently, as Judge Southwick’s opinion
indicates, the statute seems to implicitly impose strict liability, regardless of
fault, on health care providers who perform abortions.1 Further, the statute
provides that Louisiana’s statutory regime governing medical malpractice does
not apply to actions brought under § 9:2800.12 for damage related to abortions.
Id. § 9:2800.12(C)(2). However, the statute is silent as to whether a patient who
has suffered some harm arising from an abortion can still bring an ordinary
medical malpractice action under preexisting law, as with any other medical

1
A panel of this court previously concluded that the statute provides for strict liability.
Okpalobi v. Foster, 190 F.3d 337, 360 (5th Cir. 1999), vacated on other grounds, 244 F.3d 405
(5th Cir. 2001) (en banc). However, the defendants disagree with this reading and argue that
“the statute, read in pari materia with all of Louisiana tort law, requires proof of negligence.”
Appellees’ Brief 6 n.3. We do not need to decide on the exact nature or scope of the right of
action created by § 9:2800.12(A) in order to resolve the issues presented by this appeal.

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procedure, or whether such a patient’s only recourse is to bring a strict liability
action under § 9:2800.12.
Since § 9:2800.12 is silent on the matter, I believe the Louisiana
legislature did not mean to impliedly prevent patients from bringing claims
under ordinary medical malpractice law for damages arising from abortions.
Indeed, Brittany Prudhome, the former patient who sued K.P., D.B., and Hope
Medical for damages arising from an abortion, appears to have sought to bring
an ordinary malpractice claim rather than a strict liability claim under
§ 9:2800.12.2 Prudhome’s counsel’s letter to LeBlanc, in which she requested
that a medical review panel be convened, referred to her claim as a “medical
negligence claim” and asserted that K.P., D.B, and Hope Medical “failed to meet
the appropriate standard of medical care.” The letter made no mention of strict
liability or § 9:2800.12.
The Board, in its response to Prudhome and in its communications with
K.P., D.B., and Hope Medical, appears to have taken the position that it must
deny health care providers all the benefits of the Louisiana Patients’
Compensation Fund with regard to any claim arising from an abortion, even an
ordinary medical malpractice claim. These benefits, as Judge Southwick’s
opinion explains, include the convening of medical review panels, the limitation
of liability to $100,000, and the ability to self-insure by depositing $125,000 with
the Board.
The Board’s denial of these three benefits to K.P., D.B., and Hope Medical
(with respect to Prudhome’s claim in particular, and with respect to abortion-

2
This may well have been a reasonable legal strategy on Prudhome’s part, since the
strict liability cause of action under § 9:2800.12(A) may be unconstitutional, as the panel
decision in Okpalobi held it was. Okpalobi v. Foster, 190 F.3d 337, 359-60 (5th Cir. 1999),
vacated on other grounds, 244 F.3d 405 (5th Cir. 2001) (en banc). If Prudhome believed she
could show that K.P., D.B., and Hope Medical breached the relevant standard of care, then she
would not have needed to rely on strict liability in order to recover damages.

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related malpractice claims in general) constitutes three concrete and
particularized injuries, each of which independently satisfies the injury-in-fact
requirement of Article III standing.3 The Board’s refusal to convene a medical
review board has already taken place and, as Judge Southwick’s opinion
explains, it is not moot. The denial of a medical review board concretely injured
K.P., D.B., and Hope Medical because medical review boards benefit health care
providers by facilitating the dismissal of meritless malpractice suits and aiding
in the settlement of suits that appear to be meritorious.4 Although Prudhome’s
suit has not yet been resolved, the Board’s apparent policy of refusing to pay
abortion-related malpractice claims in excess of $100,000 also causes concrete
pecuniary injury to the plaintiffs by effectively raising their cost of obtaining
malpractice insurance.5 See Henderson v. Stalder, 287 F.3d 374, 379 (5th Cir.
2002) (“a direct pecuniary injury” is “an injury in fact”). Likewise, by refusing
Patients’ Compensation Fund coverage for all abortion-related malpractice
claims, the Board denies K.P., D.B., and Hope Medical the financially beneficial
opportunity to self-insure with respect to such claims by depositing $125,000

3
See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (explaining that
Article III standing requires an “injury in fact” which is “concrete and particularized” and
“actual or imminent”).
4
See Everett v. Goldman, 359 So. 2d 1256, 1264 (La. 1978) (“Pretrial screening through
a medical review panel is designed to weed out frivolous claims without the delay or expense
of a court trial. It is thought that the use of such panels will encourage settlement because
both parties will be given a preliminary view of the merits of the case.”). Thus, regardless of
whether Prudhome’s malpractice claim has any merit, K.P., D.B., and Hope Medical were
injured by the Board’s refusal to convene a review panel to assess whether they had violated
the relevant standard of care.
5
The $100,000 cap on liability for participating health care providers was designed to
make malpractice insurance more affordable. See Descant v. Adm’rs of Tulane Educ. Fund,
639 So. 2d 246, 248 (La. 1994) (“In part, the [Medical Malpractice] Act was designed to
increase the likelihood that health care providers would carry malpractice insurance by
regulating the total damage recovery of malpractice victims, thereby reducing insurance
premiums.”).

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with the Board. All three of these injuries are concrete and immediate, not
abstract or speculative; they plainly fulfill the injury-in-fact requirement.
Moreover, the injuries are obviously directly caused by the Board’s decisions, and
could be redressed by an injunction requiring the Board to treat abortion-related
malpractice claims the same way it treats other malpractice claims.6 Thus,
based on my reading of § 9:2800.12, I conclude that the facts as alleged by the
plaintiffs easily fulfill the three requirements of Article III standing.
Regarding the Eleventh Amendment issue, I fully agree with Judge
Southwick’s discussion of Ex parte Young and Okpalobi. However, the opinion’s
conception of “enforcement” as involving compulsion or constraint seems to me
to be unnecessarily restrictive. In a legal sense, to “enforce” a law or regulation
simply means “[t]o give force or effect” to it. Black’s Law Dictionary (8th ed.
2004). There is no need to ask whether the Board has done anything that
amounts to compulsion or constraint. The Board has plainly given force and
effect to its interpretation of § 9:2800.12, by refusing to convene a medical review
panel and by denying the other benefits of the Fund to K.P., D.B., and Hope
Medical. Moreover, the defendants have expressly stated, in a filing in the
district court, that the Board has a “gatekeeping function.” Because the Board
has actually enforced § 9:2800.12 by engaging in “gatekeeping,” it undeniably
has the “connection with the enforcement of the act” that is required under Ex
parte Young, 209 U.S. 123, 157 (1908).
With these observations, I join the court’s opinion.

6
See Lujan, 504 U.S. at 560-61 (stating that the three elements of Article III standing
are injury-in-fact, causation, and redressability).

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