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Wilson v. Landry12/28/1999
recognized that the matter was really one of the standard of professional conduct, and so negligence has now generally displaced battery as the basis for liability"); 1 Fowler V. Harper et al., The Law of Torts § 3.10 & nn. 36-38 (3d ed. 1997) ("The problem of informed consent is essentially one of professional responsibility, not intentional wrongdoing, and can be handled more coherently within the framework of negligence law than as an aspect of battery."); 4 Stuart M. Speiser et al., The American Law of Torts § 15.71 n. 21 (noting that "more and more courts have turned to the theory of negligence--professional malpractice--as the basis for suits predicated on lack of informed consent"); David W. Robertson et al., Cases and Materials on Torts 608 n. 1 (1989) ("modern courts analyze the adequacy of consent as a question of negligence, not battery"); 3 David W. Louisell & Harold Williams, Medical Malpractice § 22.03 (1997); Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 2- 9(a) (1996) ("most modern authorities now treat lack of informed consent as a negligence, i.e., malpractice matter"); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960); Woolley v. Henderson, 418 A.2d 1123 (Me. 1980).
The Louisiana Legislature has also specified the theory of recovery in lack of informed consent claims as properly based on traditional fault theories, apparently to bring such claims under the Medical Malpractice Act. By La. Acts 1990, No. 1093, the Legislature amended La.Rev.Stat. 40:1299.40 to add Subsection E, which establishes the Louisiana Medical Disclosure Panel to determine the risks and hazards related to medical care and surgical procedures that must be disclosed to the patient. Pertinent to the present discussion, Subsection 1299.40 E(2)(a) provides:
In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. (emphasis added). Lugenbuhl, 96-1575 at 7-9, 701 So.2d at 452-453 (footnote omitted).
The Court then articulated its rejection of "battery-based liability in lack of informed consent cases (which include no-consent cases) in favor of liability based on breach of the doctor's duty to provide the patient with material information concerning the medical procedure." Lugenbuhl, 96- 1575 at 9, 701 So. 2d at 453.
This court recently dealt with a question similar to the one at issue in the present case in Banks v. Wright, 97-1869 (La. App. 1st Cir. 11/6/98), 721 So. 2d 1063, writ denied, 98-3026 (La. 1/29/99), 736 So. 2d 839. The plaintiff in Banks filed suit for intentional medical battery against Mary Jo Wright, M.D., the State of Louisiana through the Louisiana Health Care Authority, and Earl K. Long Medical Center. The plaintiff was admitted to Earl K. Long Medical Center on August 14, 1995, for an aorto-femoral bypass, scheduled for the following day. After the August 15, 1995 surgery, he discovered that he had been circumcised during surgery. He had not been informed of the possibility that he would be circumcised, nor did he consent to the procedure.
The State filed exceptions of prematurity and lack of subject matter jurisdiction, asserting that plaintiff was first required to present his claim to a state medical
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