Katherine B. Kennedy, Wife of Huey Kennedy v. Oceans Behavioral Hospital of Kentwood, LLC

A

FIRST CIRCUIT

NO. 2026 CA 0087

KATHERINE B. KENNEDY, WIFE OF HUEY KENNEDY,
DECEASED

A VERSUS

OCEANS HEALTHCARE, L.L.C. AND OCEANS ACQUISITION,
INC.

Judgment Rendered:
v EP 2 3 2026

On Appeal from the
21 st Judicial District Court
Parish of'Tangipahoa, State of Louisiana
Trial Court No. 2023- 0004421

The Honorable Jeffrey S. Johnson, Judge Presiding

Roderick Alvendia Attorneys for Appellant,
Barrett R. Stephens Katherine B. Kennedy, Wife of
John Bartholomew Kelly, III Huey Kennedy, Deceased
Jeanne Katherine Demarest
Kurt A. Offner
New Orleans, Louisiana

Pete Lewis
Metairie, Louisiana

Keith C. Armstrong Attorneys for Appellee,
Joseph R. Dronet Oceans Behavioral Hospital of
Baton Rouge, Louisiana Kentwood, LLC d/ b/ a Oceans
Behavioral Hospital of
Hammond

WOLFE, J.

Plaintiff/appellant, Katherine B. Kennedy, wife of Huey Kennedy, deceased

Mrs. Kennedy"), appeals a judgment rendered by the district court sustaining a

dilatory exception raising the objection of prematurity filed by defendant/ appellee,

Oceans Behavioral Hospital of' Kentwood, LLC d/b/ a Oceans Behavioral Hospital

of Hammond (" Oceans"), dismissing Mrs. Kennedy' s claims against Oceans

without prejudice. The district court concluded that Mrs. Kennedy' s suit was

premature because she had not, submitted her claims to a medical review panel as

required by the Louisiana Medical Malpractice Act (" LMMA"), La. R.S.

40: 1231. 1, et seq. For the following reasons, we affirm.

On November 27, 2023, Mrs. Kennedy filed a Petition for Damages against

Oceans, claiming that her deceased husband, Huey Kennedy (" Mr. Kennedy"), was

a patient at Oceans with a diagnosis of dementia. Mr. Kennedy was housed in a

secure, locked unit. Mrs. Kennedy further averred that, on June 17, 2023, Mr.

Kennedy was allowed to leave his secured housing, without Oceans staff being

aware of his absence, an alleged violation of facility protocols. After Oceans staff

became aware of Mr. Kennedy' s absence, Mrs. Kennedy claims it took them more

than one hour to contact local law enforcement and, at that time, it had been over

two hours since Mr. Kennedy left the Oceans property. Unfortunately, twenty- four

hours later, Mr. Kennedy was found, deceased, in a ditch less than a half mile from

the Oceans facility. In her petition, Mrs. Kennedy argued that Mr. Kennedy' s

eventual death would not have occurred " had the proper and appropriate custodial

monitoring been taken in a timely manner by [ Oceans]." More specifically, Mrs.

Kennedy stated Oceans failed to " properly monitor their custodial patients[,]"

perform custodial rounds to locate patients[,]" " ensure all secured doors remained

properly closed/ locked/ secured[,]" " take proper, timely and appropriate actions

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after discovering that a patient was missing[,]" and " provide a safe setting for

patients to be housed/ confined under their custody and control[.]"

In response to Mrs. Kennedy' s petition, Oceans filed a dilatory exception

raising the objection of prematurity, maintaining that it is a qualified health care
provider' under the LMMA. Oceans alleged that Mrs. Kennedy' s claims against

Oceans sound in medical malpractice, that Mrs. Kennedy had not submitted her

claim to a medical review panel prior to filing suit, and, therefore, that Mrs.

Kennedy' s suit was premature. Specifically, Oceans argued expert medical

evidence is necessary, " as certain allegations of negligence by [ Mrs. Kennedy]

revolve around an inadequate amount of custodial supervision and monitoring, also

known as ` rounding[,]' which all were inherently linked to [ Mr. Kennedy' s]

requisite treatment as a dementia patient." Ultimately, Oceans concluded:

T] he allegations set forth by [ Mrs. Kennedy] all clearly occurred
within the scope of activities that Oceans is licensed to perforin [ as] a
behavioral health care provider, particularly the requisite monitoring
for patients with dementia. Further, since [ Mrs. Kennedy' s] alleged
injuries were related to and occurred during [ Mr. Kennedy' s]
treatment at Oceans, there is no conceivable argument that the alleged
injuries would have occurred had [ Mr. Kennedy] not sought

treatment.

Mrs. Kennedy opposed Oceans' exception, and generally asserted that her

claims do not sound in medical malpractice, that the negligent injuries she alleged

were neither treatment related nor a dereliction of professional skill, and that the

wrongs she alleged do not require expert medical evidence to determine if the

appropriate standard of care was breached by Oceans.2Moreover, Mrs. Kennedy

argued:

Simply put, general tort principles under La. C. C. art. 2315 apply to
the case at bar. [ Oceans] should be liable to [ Mrs. Kennedy] in this
claim for the failure to provide a secure facility. The operative facts

1 The parties do not dispute that Oceans is a qualified health care provider under the LMMA.

2 Attached to Mrs. Kennedy' s opposition were printouts of two appellate court decisions:
Tucker v. Seaside Behavioral Center, LLC, 2023- 0132 ( La. App. 5th Cir. 12/ 27/ 23), 378
So. 3d 879, writ denied, 2024- 00140 ( La. 3/ 19/ 24), 381 So. 3d 713 and LaCoste v. Pendleton
Methodist Hosp., L.L.C., 2007- 0008 ( La. 9/ 5/ 07), 966 So. 2d 519.

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in the case at bar are unrelated to any medical treatment or any
decisions or even nursing -related decisions by
physician -related
Oceans]. How and why Mr. Kennedy was allowed to leave a secure,
lockdown facility relates to [ Oceans'] failure to have effective
security measures in place to prevent same.

Following a hearing on August 26, 2024, the district court sustained Oceans'

exception, stating:

Here is what I think —this is my ruling. If you want to take out all of
the allegations regarding failure to monitor and failure to perform
custodial rounds, if you want to take out all of the allegations that
would reference a standard of care that they are required to perform
and just say, he was at a hospital that was secured, they allowed him
to escape — basically plead res ipsa, I think it stands, because I do
think it is a hybrid. But if you want to go down the road of, they
should have been doing it every 15 minutes and they were only doing
it every 30 minutes or this is a secure facility based for dementia
patients and here is what the standard of care speaks to with regard to
dementia patients, I think it is a medmal case.

The district court executed a written judgment on October 10, 2024, which granted

Oceans' exception, allowed Mrs. Kennedy two weeks from the date of hearing to

amend her petition and remove all allegations of medical malpractice, and, in the

absence of such an amendment, dismissed Mrs. Kennedy' s petition without

prejudice. However, when Mrs. Kennedy did not amend her petition, the district

court executed a second written judgment, on August 13, 2025, again granting

Oceans' exception and dismissing Mrs. Kennedy' s claims without prejudice. It is

from this judgment that Mrs. Kennedy now appeals.

Mrs. Kennedy advances one assignment of error in this appeal: whether the

district court erred in finding her allegations are rooted in medical malpractice and,

resultantly, granting Oceans' dilatory exception raising the objection of

prematurity?

The dilatory exception raising the objection of prematurity is provided in La.

Code Civ. P. art. 926; Wilson v®St. Helena School Board, 2018- 1532 ( La. App.

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1st Cir. 6/ 3/ 19), 393 So. 3d 358, 360. The exception raising the objection of

prematurity questions whether a cause of action has matured to the point where it
is ripe for judicial determination. An action will be deemed prematurity when it is

brought before the right to enforce it has accrued. La. Code Civ. P. art. 423; Id.

Generally, a judgment sustaining an exception raising the objection of

prematurity and dismissing a cause of action on that basis is reversed under the
manifest error standard of review. N' Dakpri v. Louisiana State Board of

Cosmetology, 2023- 1213 ( La. App. 1st Cir. 6/ 21/ 24), 392 So. 3d 407, 415, writ

denied, 2024- 00932 ( La. 11/ 6/ 24), 395 So. 3d 1176. However, where a purely legal

question is presented, the judgment is reviewed de novo. Id. On the trial of a

dilatory exception, such as prematurity, evidence may be introduced to support or

controvert the objection pleaded, when the grounds thereof do not appear from the

petition. See La. Code Civ. P. art. 930. Where no evidence is introduced at the

hearing, the trial court must render its decision on the exception based upon the
facts as alleged in the petition, and all allegations therein must be accepted as true.

The exception raising the objection of prematurity is the proper procedural

mechanism for a qualified health care provider to invoke when a medical

malpractice plaintiff has failed to submit the claim for an opinion by a medical

review panel before filing suit against the provider. Prejean v. Rodrigue, 2023-

0646 ( La. App. 1st Cir. 12/ 27/ 23), 381 So. 3d 98, 102. If a lawsuit against a health

care provider covered by the LMMA has been filed in district court and the claim

has not been first presented to a medical review panel in accordance with La. R.S.

40: 1231. 8( A)( 1)( a), the exception raising the objection of prematurity must be

sustained, and the suit dismissed.. Prejean, 381 So. 3d at 102. The burden is on the

defendant to prove prematurity and initial immunity from a suit as a qualified

health care provider under the LNIMA. Id. The defendant must also show he is

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entitled to a medical review panel because the allegations fall within the LMMA.

Louisiana Revised Statutes 40: 1231. 1( A)( 13) defines " malpractice" as, in

pertinent part: " any unintentional tort [ ... ] including but not limited to failure to

render services timely and the handling of a patient [..., or] in the staffing, training,

or supervision of health care providers[.]" The LMMA further defines

malpractice" as " all acts associated with the medical treatment of an individual,

whether directly related to clinical care or performed in an administrative or

managerial capacity necessary for the delivery of such care." Additionally, La.

R.S. 40: 1231. 1( A)(9) defines " health care," in pertinent part, as " any act,

treatment, administration, service, or care related to policies and procedures and

the administration thereof [. .] 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[.]"

When reviewing whether claims in a petition sound in medical malpractice

under the LMMA, courts must " scrutinize[] the allegations for their factual content

and determine[] whether they involve healthcare, fall under the LMMA, and must

proceed to [ a medical review panel]." Reynolds v. Oaks Nursing &

Rehabilitation, 55, 516 ( La. App. 2d Cir. 4/ 10/ 24), 383 So. 3d 1107, 1114, writ

denied, 2024- 00598 ( La. 9/ 24/ 24), 392 So. 3d 1142. The fact that the plaintiff may

have made allegations sounding in both medical malpractice and general tort law

does not remove the petition from the penumbra of the LMMA, if a claim for

medical malpractice is stated. Andrews v. Our Lady of the Lake Ascension

Community Hosp., Inc., 2013- 1237 ( La. App. 1st Cir. 2/ 18/ 14), 142 So. 3d 36, 38.

In addition, the Louisiana Supreme Court has emphasized. that the LMMA

and its limitations for tort liability for a qualified health care provider apply strictly

to claims " arising from medical malpractice." Williamson v. Hospital Service

0

Dist. No. I of Jefferson, 2004- 0451 ( La. 12/ 1/ 04), 888 So. 2d 782, 786. This is so

because the LMMA' s limitations on the liability of health care providers are

special legislation in derogation of the rights of tort victims, and as such, the

coverage of the act should be strictly construed. Billeaudeau v. Opelousas

General Hospital Authority, 2016- 0846 ( La. 10/ 19/ 16), 218 So. 3d 513, 520.

Therefore, to assist courts in determining whether a certain conduct by a qualified

health care provider constitutes " malpractice," the Louisiana Supreme Court has

set forth the following six factors:

1) whether the particular wrong is ' treatment related' or caused by a
dereliction of professional skill;

2) whether the wrong requires expert medical evidence to determine
whether the appropriate standard of care was breached;

3) whether the pertinent act or omission involved assessment of the
patient' s condition;

4) whether an incident occurred in the context of a physician -patient
relationship, or was within the scope of activities which a hospital
is licensed to perforrn;

5) whether the injury would have occurred if the patient had not
sought treatment; and

6) whether the tort alleged was intentional.

Coleman v. Deno, 2001- 1517 ( La. 1/ 25/ 02), 813 So. 2d 303, 315- 16.

As we apply the Coleman factors to the instant proceeding, we rely on prior

cases involving unsupervised/ escapee nursing home residents. Although the cases

do not have identical issues to the facts presented herein, we find them to be

helpful and instructive. In McKnight v. D& W Health Services, Inc., 2002- 2552

La. App. 1st Cir. 11/ 7/ 03), 873 So. 2d 18, 20, the mother of a nursing home

resident filed suit against a nursing home operator, alleging her son died of injury,

heat exhaustion, exposure, and other causes after wandering off the nursing home

premises. Id. In response, the defendant nursing home operator filed a dilatory

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exception raising the objection of prematurity, claiming it is qualified health care

provider entitled to the benefit of a medical review panel prior to filing suit. Id.

On appeal, after the district court denied the nursing home' s exception, this court

noted that " character of plaintiffs cause of action must be determined from an

examination of her petition' s allegations[,]" which included that the nursing home

had the " care, custody and control" of her son, a " resident" and " patient" of the

nursing home. Id. at 21. The plaintiff further alleged that, while a resident and

patient, her son " was generally in a confused state of mind and was physically

unable to care for himself." Id. Plaintiff expressly alleged the nursing home

operator' s " actions in allowing her son to wander off its premises and in failing to

locate him and ' return him to proper care' constituted abuse and/ or neglect'[.]" Id.

at 21.

After presenting the relevant allegations, this court then reviewed the

definitions of "malpractice" and " health care" under the LNE10A, giving particular

attention to the lack of a definition for the word " handling," a specified activity

encompassed within the definition of "malpractice." Therefore, this court defined

handling" as the " management or having overall responsibility for supervising or

directing a patient." Id. Ultimately, this court concluded that the alleged negligent

conduct would, if proven, amount to a " dereliction of professional skill" as the

nursing home allegedly " failed to properly supervise and restrain her late son from

leaving the premises[.]" Id. at 22. Further, this court concluded that the plaintiff' s

allegations " clearly bring her claims within the requisite context of ' health care'

rendered to a ' patient' during his ' confinement' at a nursing home[,]" and found

that the first, second, fourth, fifth, and sixth Coleman factors weigh in favor of the

conclusion that the plaintiff s claims were grounded in malpractice. Id. at 22.

Additionally, in Dutrey v. Plaquemine Manor Nursing Home, 2012- 1295

La. App. Ist Cir. 6/ 17/ 13), 205 So. 3d 934, 938, this court considered the death of

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a nursing home resident, who, though blind and suffering from dementia, was

nevertheless allowed to smoke a cigarette unsupervised. Unfortunately, the

resident was severely burned when his shirt caught fire, untimely resulting in his

death. The decedent' s siblings filed suit against the nursing home, which then filed

a dilatory exception raising the objection of prematurity. Id. Relying on

McKnight, this court ruled that, even in the absence of an evidentiary hearing, the

plaintiffs' allegations " clearly established the alleged tort was the result of [the

nursing home' s] failure to properly assess the decedent' s physical and mental

incapacities where it detennined his smoking status did not require supervision."

Id. at 948. Ultimately, this court sustained the district court' s granting of the

nursing home' s exception, finding the first, second, third, and sixth Coleman

factors weighed in favor of the petition' s allegations sounding in medical

malpractice. Id.

Lastly, in In re Medical. Review Panel Proceedings of Lyons, 51, 750 ( La.

App. 2d Cir. 11/ 15/ 17), 245 So. 3d 254, 255, an assisted living facility resident who

suffered from dementia, was found wandering in the parking lot of the facility

looking for her car. The resident was redirected inside the facility and reportedly

participated in activities later that afternoon. The resident " was present in her

room at the 9: 00 p.m. bed check, but she was not there for the 11: 00 p.m. bed

check. She was subsequently discovered lying unconscious on the ground outside

the building below and open third -story window" and it was " determined that she

had fallen [twenty- one] feet from an open window." Id. at 255- 56. On review, the

appellate court noted:

It is indisputable that. Alzheimer' s disease and the associated dementia
that [ the patient] suffered from was a medical condition that required
health care treatment. In our view, by virtue of its agreement to
monitor her health and needs for special services and to take the
appropriate measures to provide such care, its failure to secure the
safety of [ the patient] was an omission constituting health care as
defined by the Act as it was ' 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.'

Id. at 262- 63.

Here, the plain language of Mrs. Kennedy' s petition notes that Mr. Kennedy

was a " patient admitted to [ Oceans] with a diagnosis that included dementia[,]"

and that Oceans erred, in pertinent part, by failing to " monitor their custodial

patients[,]" " perform custodial rounds to locate patients[,]" and " ensure all secured

doors remained properly closed/ locked/ secured[.]" Additionally, and similar to

Lyons, Mrs. Kennedy alleged in her petition that Oceans knew Mr. Kennedy had a

propensity to wander, as less than one week before his unfortunate death, Mr.

Kennedy " was permitted to walk into another patient' s room and was struck

multiple times in the face by the resident of that room, causing lacerations near his

eye and on his forehead."

We, therefore, find that the first Coleman factor weighs in favor of a finding

of malpractice. In addition, as expert testimony will likely be required regarding

the appropriate intervals to conduct patient custodial rounds, we find the second

and fourth Coleman factors likewise weigh in favor of a finding of medical

malpractice. Lastly, had Mr. Kennedy not been a patient at Oceans, he would not

have suffered his injuries. In fact, Mrs. Kennedy admits that Mr. Kennedy' s

eventual death would not have occurred " had the proper and appropriate custodial

monitoring been taken in a timely manner by [ Oceans]." Therefore, the fifth

Coleman factor weighs in favor of a finding of medical malpractice. Finally, as

neither party suggests Mr. Kennedy' s death was a result of an intentional tort, we

do not consider the sixth Coleman factor.

We recognize the tragic nature of Mr. Kennedy' s death, but must find that

the facts, as alleged by Mrs. Kennedy and accepted as true, as well as analogous

Louisiana jurisprudence, support the district court' s ruling that Mrs. Kennedy' s

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claims sound in medical malpractice and must first be brought before a medical

review n,"n^^ as required~by the ~~'~~ Accordingly, after ------ o—
de novo

review of the record, we find no error in the district court' s ruling.

CONCLUSION

For the reasons set forth above, we affirm the district court' s August 13,

sustainingthe dilatoryexceptionraisingthe objection

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dy, ~'^~ of -^~~
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deceased' s claims—against—defendant/appellee,

Oceans Behavioral Hospital mf LLC d/ b/ a Oceans Behavioral Hospital

of Hammond. Costs ofthis appeal are assessed to Katherine B. Kennedy, wife of

Huey Kennedy, deceased.

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