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Wilson v. Landry12/28/1999
review panel before he could bring suit in district court. The trial court denied the exceptions, and the State appealed.
The question presented on appeal was "whether the trial court erred in ruling plaintiff's suit involved a medical battery and, therefore, did not require review by a state medical review panel." Banks, 97-1869 at 3, 721 So. 2d at 1064. Quoting extensively from and relying on the principals set forth in Lugenbuhl, this court answered the question in the affirmative. Thus, pursuant to La. R.S. 40:1299.39.1(A)(1) and (B)(1)(a)(i), the plaintiff was required to first present his claims to a state medical review panel. This was true even though the plaintiff's surgery, which gave rise to his claim for lack of informed consent, occurred prior to the Lugenbuhl decision.
Although the Banks case involved exceptions of prematurity and lack of subject matter jurisdiction, and the case before us concerns an exception of no cause of action, we opine that based on the same principles the trial court properly maintained the exception. In Banks, the proper vehicles for challenging the plaintiff's petition were exceptions of prematurity and lack of subject matter jurisdiction because the plaintiff had not yet filed a claim with the state medical review panel. Until the matter was presented to and evaluated by the panel, the suit based on lack of informed consent in district court was premature, and the court lacked jurisdiction to hear and decide the case. However, the record in this case reflects that appellant filed a complaint with the Patient's Compensation Fund requesting review by a medical review panel in accordance with La. R.S. 40:1299.41 et seq. on July 17, 1997, prior to filing this suit on August 21, 1997. Thus, appellant had filed the necessary claim to recover under the appropriate cause of action--medical malpractice based on the breach of the doctor's duty to provide appellant with material information concerning the medical procedure. There is no separate cause of action of medical battery.
Application of Segura v. Frank and Lovell v. Lovell
On appeal, appellant argues that the trial court erred in its interpretation of Segura v. Frank, 93-1271 (La. 1/14/94), 630 So. 2d 714, cert. denied sub nom., Allstate Insurance Company v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), and Magee v. Landrieu, 95-0437 (La. App. 1st Cir. 3/17/95), 653 So. 2d 62, writs denied, 95-0790, 95-0800, 95-0805, and 95-0870 (La. 4/21/95), 654 So. 2d 319, 320, and misapplied the test for determining whether to apply a decision nonretroactively as set forth in Lovell v. Lovell, 378 So. 2d 418, 421-422 (La. 1979), and Magee, 95-0437 at 7, 653 So. 2d at 66. We disagree.
The Louisiana Supreme Court in Lovell, 378 So. 2d at 421-422, and later this court in Magee, 95-0437 at 7, 653 So. 2d at 66, articulated three factors to consider when determining whether a decision should be made nonretroactive. The factors are:
(1) the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed.
Segura set forth the following analysis and reasoning relevant to determining whether a recent decision should be applied to a pending case.
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