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
Free access — add to your briefcase to read the full text and ask questions with AI
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 MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 09/28/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-C-425 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Danyelle M. Taylor (DISTRICT JUDGE) Nadia M. de la Houssaye (Relator) Carmen M. Rodriguez (Relator) Olden C. Toups, Jr. (Respondent) G. Shelly Maturin, II (Respondent)
MAILED Jason M. Welborn (Respondent) Jacob H. Hargett (Respondent) Attorney at Law 1540 West Pinkook Road Lafayette, LA 70503 • Complete it8ms 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mallplece, or on the front If space permits.
:::b~=:~ 0£cuA1/\., D. Is delivefy address different from ll9m 1? If YES. enter delivery address below: 0 No 1. Attorney at Law f r 1540 West Pinkook Road Lafayette, LA 70503 23-C-425 09-28-23
Ill 11111111111111111111111111111111 ~ 111111111 9590 9402 2434 6249 3572 07 2. Miele Number (rramfer from SIJIVice label) 7D1b 2070 aaaa 0954 PS Form 3811, July 2015 PSN 7530-02..(JO(HI053 Domestio Retum Reoelpt :