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Wilson v. Landry12/28/1999
interpreting the law to allow retroactive application of a judicial decision in derogation of a vested right.
3. The trial court erred in failing to conduct an analysis of the retroactive application of Lugenbuhl v. Dowling[, 96-1575 (La. 10/10/97), 701 So. 2d 447,] as set for in Magee[,] supra, Lovell[ v. Lovell, 368 So. 2d 418 (La. 1979),] and Chevron [Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)].
DISCUSSION
Peremptory Exception of No Cause of Action The standard that must be applied in "no cause of action" cases is as follows:
The peremptory exception of no cause of action is a procedural device used to test whether, under the allegations of the petition, the law affords any remedy for the grievance asserted. Leon v. Deters Custom Homes, Inc., 97-0772 (La. App. 1st Cir. 4/8/98), 711 So. 2d 346, 348. The court must accept well-pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence. Walters v. Rubicon, Inc., 706 So. 2d at 505-506. An appellate court owes no deference to a trial court's ruling granting an exception of no cause of action because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La. 7/5/94), 640 So. 2d 237, 253. Kewaunee Scientific Corp. v. Charles Ragusa & Son, Inc., 97-1823, p. 7 (La. App. 1st Cir. 9/25/98), 723 So.2d 470, 474.
Applicability of Lugenbuhl v. Dowling
On appeal, appellant argues that, because Lugenbuhl v. Dowling, 96- 1575 (La. 10/10/97), 701 So. 2d 447, was decided after this lawsuit was filed, the trial court erroneously applied Lugenbuhl to this case. According to appellant, Lugenbuhl announced a new rule of law, which supplanted and replaced a rule of law that had previously existed for fourteen years; and thus, Lugenbuhl should not have been retroactively applied to this case.
In Lugenbuhl, the Louisiana Supreme Court granted certiorari to review the issue of whether "lack of informed consent" cases should be treated as medical malpractice cases, or whether such cases should proceed under a theory of medical battery. The Court acknowledged that prior to the 1990 amendment to the Medical Malpractice Act (MMA) (whereby the Louisiana Legislature specified the theory of recovery in lack of informed consent claims as properly based on traditional fault theories to bring such claims under the MMA), it had imposed liability for the commission of medical battery. Lugenbuhl, 96-1575 at 5-9, 701 So. 2d at 451-452. In short, the Court explained:
While the early development of liability for failing to obtain informed consent was based on concepts of battery or unconsented touching, the imposition of liability in later cases has been based on breach of a duty imposed on the doctor to disclose material information in obtaining consent. Such a breach of duty by the doctor results in liability based on negligence or other fault. While perhaps the performance of a medical procedure without obtaining any kind of consent, in the absence of an emergency, technically constitutes a battery, liability issues involving inadequate consent are more appropriately analyzed under negligence or other fault concepts. See W. Page Keeton et al, Prosser and Keeton on the Law of Torts 190 (5th ed. 1984) ("Beginning around 1960, however, it began to be
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