GRETNA, La. (Legal Newsline) - A woman who sued a Louisiana school district for vaccinating her son against COVID-19 without her consent should have presented her case as a medical malpractice lawsuit.
The state Fifth Circuit Court of Appeal made that determination Sept. 28, finding Jennifer Ravain was required to submit her allegations to a medical review panel, as required by a state medical malpractice litigation law.
The ruling overturns a decision from Jefferson Parish District Court that found Ravain did not need to because her son Jason was not a "patient" of Ochsner Medical Center Kenner. The trial court also categorized the vaccination as an "intentional tort" not included in the definition of "malpractice."
But the Fifth Circuit found, in Louisiana law, "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."
And since vaccinations have been considered "health care" in caselaw, the Fifth Circuit found Ravain needed to go through a medical review panel when filing suit.
According to the lawsuit, on Oct. 20, 2021, an announcement came over the public address at East Jefferson High School stating that students were free to go to the Ochsner mobile vaccine unit if they were interested in getting the COVID-19 vaccination.
Ravain’s son asked the nurses when he would be able to schedule getting the shot, as he wanted to talk to his mother first, and they informed that it would be done right then, the suit says.
The minor proceeded to get the vaccination. Ravain claims that Defendants did not adhere to the law regarding obtaining consent from a parent of a minor before administrating shots.
All of this is not an "intentional tort," the Fifth Circuit added, citing a 1997 state Supreme Court decision finding no-consent cases sound in medical malpractice.
"Jason was a minor when he received the COVID shot without parental consent," the decision says. "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."
The ruling dismisses claims against Ochsner, without prejudice. Other defendants are the Jefferson Parish School Board and East Jefferson High School.