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Wilson v. Landry12/28/1999
In this medical battery action, the trial court dismissed the lawsuit of Evelyn Wilson, on behalf of the minor child, Tryistan Wilson, appellant, pursuant to an exception of no cause of action filed by William N. Landry, III, M.D., appellee. We affirm.
FACTS AND PROCEDURAL HISTORY
Tryistan Wilson was born on August 21, 1996, at Lakeview Regional Medical Center in St. Tammany Parish, Louisiana. On August 22, 1996, appellee performed a circumcision on Tryistan.
On August 21, 1997, appellant filed a petition for damages against appellee, asserting, among other things, the following allegations:
V.
On August 22, 1996[, appellee] undertook the performance of a circumcision on Tryistan Wilson.
VI.
Prior to performing the circumcision, [appellee] had not prepared and explained a written consent form authorizing him to perform the procedure and had not obtained written consent to circumcise Tryistan Wilson.
VII.
Prior to performing the circumcision, [appellee] had not orally discussed the performance of the procedure and had not obtained oral consent to circumcise Tryistan Wilson.
VIII.
In failing to obtain consent to perform the circumcision of Tryistan Wilson, [appellee] violated the statutory and jurisprudential law of Louisiana.
IX.
In failing to obtain consent to perform the circumcision of Tryistan Wilson, [appellee] violated the policies and procedures of Lakeview Regional Medical Center.
X.
The act of performing a circumcision procedure on Tryistan Wilson without proper authorization constitutes the commission of the intentional tort of medical battery by [appellee].
XI.
In the course of performing the circumcision of Tryistan Wilson, [appellee] cut Tryistan Wilson, causing severe injury to him.
XII.
After being cut by [appellee], Tryistan Wilson continued to bleed for several hours while preparations were made to perform reconstructive surgery on his penis.
Additionally, appellant alleged that Tryistan has since had two reconstructive surgeries, has sizeable, permanent scarring, and faces the prospect of possibly having impaired physical functioning of his penis.
On September 24, 1997, the State of Louisiana, through the Department of Health and Hospitals (DHH), intervened in the suit to recover the sum of $4,418.71, plus legal interest, in connection with medical services provided to Tryistan in connection with his injuries as a result of the operation.
On October 10, 1997, appellee filed a dilatory exception of prematurity and lack of procedural capacity as to appellant's petition, and on October 17, 1997, appellee filed a dilatory exception of prematurity as to DHH's petition in intervention.
On December 22, 1997, appellee filed a peremptory exception of no cause of action, contending that Louisiana law does not recognize a cause of action based on the intentional tort of medical battery in lack of informed consent cases. A hearing on the exception was held on May 13, 1998, and a judgment maintaining the exception and dismissing with prejudice the claims of appellant and DHH was rendered on June 5, 1998. This appeal followed.
ASSIGNMENTS OF ERROR
On appeal, appellant asserts the following assignments of error:
1. The trial court erred in its interpretation of Magee v. Landrieu[, 95-0437 (La. App. 1st Cir. 3/17/95),] 653 So. 2d 62 ... and Segura v. Frank[, 93-1271 (La. 1/14/94),] 630 So. 2d 714[.]
2. The trial court erred in
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