Jennifer Ravain, Individually and on Behalf of Her Minor Child, Jason Ravain Versus Ochsner Medical Center Kenner, LLC, Jefferson Parish School Board, and East Jefferson High School ( 2023 )

JENNIFER RAVAIN, INDIVIDUALLY AND ON NO. 23-C-425
BEHALF OF HER MINOR CHILD, JASON
RAVAIN FIFTH CIRCUIT
VERSUS COURT OF APPEAL
OCHSNER MEDICAL CENTER KENNER, LLC, STATE OF LOUISIANA
JEFFERSON PARISH SCHOOL BOARD, AND
EAST JEFFERSON HIGH SCHOOL
September 28, 2023
Linda Wiseman
First Deputy Clerk
IN RE OCHSNER MEDICAL CENTER KENNER, LLC
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M.
TAYLOR, DIVISION "O", NUMBER 822-804
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Scott U. Schlegel
WRIT GRANTED
In this writ application, defendant, Ochsner Medical Center Kenner, L.L.C.
(“Ochsner”), seeks review of the trial court’s July 20, 2023 judgment, denying its
dilatory exception of prematurity. For the following reasons, we grant the writ
application, sustain the exception of prematurity, and dismiss plaintiff’s claims
against Ochsner without prejudice.
Facts and Procedural History
On November 15, 2021, plaintiff, Jennifer Ravain, individually and on
behalf of her minor child, Jason Ravain, filed this lawsuit against Ochsner, the
Jefferson Parish School Board, and East Jefferson High School. In her petition,
Ms. Ravain contends that on October 20, 2021, Jason was in his home room class
23-C-425
at East Jefferson High School when there was an announcement inviting students
to go to the Ochsner mobile vaccine unit if they wanted to receive a COVID shot.
Ms. Ravain asserts that Jason, who was 16 years old at the time, approached
the Ochsner mobile unit and was met by two nurses who took his basic
information, such as his name and date of birth, and then gave him a consent form
and told him to sign it. According to Ms. Ravain, Jason believed he was just
signing up for the shot, and he asked the nurses when he would be scheduled to
receive it. When Jason was told he would receive the shot “right then and there,”
he did not know what to do, and the shot was immediately administered.
In her petition, Ms. Ravain contends that Ochsner committed the intentional
tort of battery, because as a minor, Jason did not have the legal capacity to consent
to the shot. She further asserts that there are inherent risks associated with COVID
shots, but Ochsner still failed to obtain her consent, thereby causing both her and
Jason to suffer extreme emotional distress. She also claims damages for loss of her
parental right to direct the medical care of her minor child.
On October 11, 2022, Ochsner filed a dilatory exception of prematurity,
asserting that plaintiff’s claims are based on lack of informed consent and are
therefore, subject to the Louisiana Medical Malpractice Act (“LMMA”). Ochsner
contends that Ms. Ravain’s claims are premature, because they have not been
presented to a medical review panel.1 On January 2, 2023, Ms. Ravain filed a
memorandum in opposition to Ochsner’s exception of prematurity, arguing that the
LMMA does not apply because Jason was not a “patient” and Ochsner committed
an intentional tort, which is not included in the definition of “malpractice.”
1
La. R.S. 40:1231.8(A)(1)(a) provides, in pertinent part:
All malpractice claims against health care providers covered by this Part,
other than claims validly agreed for submission to a lawfully binding
arbitration procedure, shall be reviewed by a medical review panel
established as hereinafter provided for in this Section.
2
A hearing on the exception of prematurity was held on May 31, 2023, and
the trial court took the matter under advisement. On July 20, 2023, the trial court
rendered a judgment denying the exception and issued written reasons for
judgment. In its reasons, the trial court found that Jason was not a “patient” under
the LMMA, because he did not have parental consent to establish a patient-
physician relationship. The court further found that Jason did not receive “medical
care,” because he did not seek a diagnosis or information regarding a physical
condition. Also, the court found that Jason did not receive “treatment,” because he
was only seeking information and was not expecting to receive the COVID shot
that day.
Law and Discussion
A dilatory exception of prematurity, as provided for in La. C.C.P. art.
926(1), questions whether a cause of action has matured to the point where it is
ripe for judicial determination. Dupuy v. NMC Operating Co., L.L.C., 15-1754
(La. 3/15/16), 187 So.3d 436, 438; Williamson v. Hospital Service Dist. No. 1 of
Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782, 785. Under the LMMA, a
medical malpractice claim against a qualified health care provider is subject to
dismissal on a timely exception of prematurity if such claim has not first been
presented for review to a medical review panel. La. R.S. 40:1231.8; Dupuy, 187
So.3d at 438. An exception of prematurity neither challenges nor attempts to
defeat any of the elements of the plaintiff's cause of action, but instead asserts that
the plaintiff has failed to take some preliminary step necessary to make the
controversy ripe for judicial involvement. Id.Appellate courts conduct a de novo review of the trial court’s ruling on an
exception of prematurity, because the issue of whether a claim sounds in medical
malpractice involves a question of law. Perry v. State Farm Mut. Auto. Ins. Co.,
16-418 (La. App. 5 Cir. 12/14/16), 209 So.3d 308, 311; Matherne v. Jefferson
3
Parish Hospital Dist. No. 1, 11-1147 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536,
writ denied, 12-1545 (La. 10/12/12), 98 So.3d 873. The burden of proving
prematurity is on the moving party, which in a medical malpractice case, must
show that it is entitled to a medical review panel because the allegations fall within
the scope of the LMMA. Kelleher v. University Medical Center Management
Corp., 21-0011 (La. 10/10/21), 332 So.3d 654, 657; Perry, 209 So.3d at 311.
In this writ application, Ochsner argues that the trial court erred by denying
its exception of prematurity. It asserts that the LMMA applies in this case and that
plaintiff’s claims must first be presented to a medical review panel. We agree.
The LMMA and its limitations on tort liability for a qualified health care
provider apply only to claims “arising from medical malpractice,” while all other
tort liability on the part of the qualified health care provider is governed by general
tort law. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, 07-0016 (La.
9/5/07), 966 So.2d 519, 524; Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d
303, 315. La. R.S. 40:1231.1(A)(13) provides, in pertinent part:
“Malpractice” means any unintentional tort or any
breach of contract based on health care or
professional services rendered, or which should have
been rendered, by a health care provider, to a patient,
including failure to render services timely and the
handling of a patient….
The parties do not dispute that Ochsner is a qualified health care provider.
Ms. Ravain contends, and the trial court found, that the LMMA does not apply in
this matter because Jason was not a “patient” and did not receive “health care.”
La. R.S. 40:1231.1(15) of the LMMA provides that a “patient” means “a
natural person….who receives or should have received health care from a licensed
health care provider, under contract, express or implied.” In the present case,
Jason was a “patient” under the LMMA, because he is a natural person who
4
received health care from a licensed health care provider when he received the
COVID shot.
La. R.S. 40:1231.1(9) provides that “health care” is “any act or treatment
performed or furnished, or which should have been performed or furnished, by any
health care provider for, to, or on behalf of a patient during the patient’s medical
care, treatment, or confinement….” Vaccinations have been considered as “health
care” or “medical care” in the caselaw. See Hayes v. University Health Shreveport,
L.L.C, 21-1601 (La. 1/7/22), 332 So.3d 1163; Thompson v. Center for Pediatric
and Adolescent Medicine, L.L.C., 17-1088 (La. App. 5 Cir. 3/15/18), 244 So.3d
441, writ denied, 18-583 (La. 6/1/18), 243 So.3d 1062; Boyd v. Louisiana Medical
Mut. Ins. Co., 593 So.2d 427 (La. App. 1 Cir. 1991), writ denied, 594 So.2d 877(La. 1992). In her petition, Ms. Ravain also refers to the COVID shot as medical
care.2 The act of administering the COVID vaccine3 was an act performed by a
health care provider during Jason’s medical care or treatment, and thus, it is
considered health care.
Ms. Ravain asserts that Ochsner’s action of administering the COVID
vaccine to her son was not included under the definition of “malpractice” because
it was an intentional tort. She claims Ochsner committed the intentional tort of
battery, because Jason did not have the legal capacity to consent to receiving the
COVID shot. However, in Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701
So.2d 447, the Louisiana Supreme Court rejected battery-based liability in lack of
informed consent and no consent cases, and found that such cases sound in medical
malpractice and must be submitted to a medical review panel. See also
Thibodeaux v. Jurgelsky, 04-2004 (La. 3/11/05), 898 So.2d 299; In re Medical
2
In her petition, Ms. Ravain refers to “medical treatment” and “informed consent to medical treatment.” She also
seeks damages for “Loss of Parental Right to Direct the medical care of her minor child.”
3
Plaintiff argues that there is no such thing as a COVID “vaccine,” because the shots did not prevent contraction or
transmission of the disease. However, the effectiveness of the vaccine is not at issue in this writ application.
5
Review Panel for Claim of Larche, 97-2397 (La. App. 4 Cir. 4/15/98), 714 So.2d
56; and Maybrier v. Louisiana Medical Mut. Ins. Co., 08-1508 (La. App. 3 Cir.
6/10/09), 12 So.3d 1115, n. 1, writ denied, 09-1558 (La. 10/9/09), 18 So.3d 1287.
Ms. Ravain also asserts that Ochsner failed to obtain parental consent prior
to administering the vaccine and that the consent form signed by Jason was invalid
due to his lack of capacity as a minor. These claims pertaining to lack of consent
fall under the LMMA. In Lugenbuhl, 701 So.2d at 452-453, the Louisiana
Supreme Court found that cases arising from lack of informed consent or no
consent to medical treatment are subject to the provisions of the LMMA. See also
Barnes v. Harandi, 98-0781 (La. App. 4 Cir. 12/9/98), 727 So.2d 530, 533.
In Filogene v. Brown, 03-1451 (La. App. 4 Cir. 3/31/04), 871 So.2d 1206,
writ denied, 04-1050 (La. 6/25/04), 876 So.2d 836, the plaintiff, individually and
on behalf of her minor child, filed suit against a doctor, alleging that the doctor
performed an abortion on her thirteen-year-old daughter without verifying her age
or obtaining valid parental consent. The doctor filed an exception of prematurity,
arguing that the plaintiff was required to submit her claims to a medical review
panel prior to commencing a civil action. After a hearing, the trial court
maintained the exception of prematurity. Id. at 1207. On appeal, the plaintiff
argued that her claims against the doctor were excluded from the LMMA because
the procedure to terminate her daughter’s pregnancy was an intentional tort. The
Fourth Circuit noted that in Lugenbuhl, the Louisiana Supreme Court rejected
battery-based liability in lack of informed consent and no consent cases, and found
that these claims must be submitted to a medical review panel. Filogene, 871
So.2d at 1208. The Filogene court affirmed the trial court’s judgment maintaining
defendant’s exception of prematurity, and stated that “any allegations that
Defendant failed to obtain proper consent prior to performing the procedure are
6
medical malpractice allegations and require submission to a medical review panel
prior to commencement of an action.” Id.
Similarly, in the present case, Jason was a minor when he received the
COVID shot without parental consent. Thus, Ms. Ravain’s claims arise from lack
of informed consent, or no consent, and are considered medical malpractice
allegations that must first be presented to a medical review panel.
Based on our de novo review and considering the applicable law, we find
that plaintiff’s claims in this lawsuit are subject to the provisions of the LMMA
and must first be submitted to a medical review panel. Accordingly, we grant
Ochsner’s writ application, sustain its exception of prematurity, and dismiss Ms.
Ravain’s claims without prejudice.
Gretna, Louisiana, this 28th day of September, 2023.
FHW
RAC
SUS
7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
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