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Wilson v. Landry12/28/1999
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A general rule, ..., is that an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. See Dripps v. Dripps, 366 So.2d 544 (La. 1978), and cases cited therein. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. See id. at 547-48.
In light of the foregoing, we conclude a claim is pending as long as it is subject to judicial scrutiny. Even though a lower court has adjudicated a claim and rendered judgment, the claim continues to be pending until appeal of that judgment has been exhausted. Until then, something further remains to fix the plaintiff's right to enforce the claim as well as the defendant's obligation to pay it. ... Segura, 93-1271 at 15-16, 19, 630 So.2d at 725, 727.
Applying the foregoing precepts, we conclude that the trial court correctly applied Lugenbuhl to this case. First, Lugenbuhl did not establish a principle of new law. Lugenbuhl was simply a restatement of the theory of recovery in lack of informed consent cases specified by the Louisiana Legislature. By La. Acts 1990, No. 1093, the Legislature amended La. R.S. 40:1299.40 to add Subsection E, which established the Louisiana Medical Disclosure Panel to determine the risks and hazards related to medical care and surgical procedures that must be disclosed to patients. Lugenbuhl, 96- 1575 at 9, 701 So. 2d at 452. This amendment provided that the only theory under which recovery would be allowed for failure to disclose or adequately disclose a risk or hazard to a patient is that of negligence; thus, bringing these claims under the purview of the MMA. Second, retroactive application of Lugenbuhl furthers the rule fashioned in the decision--that is, clarification that the only theory of recovery in lack of informed consent cases is that provided in the MMA for breach of the physician's duty of care. Dismissing pending litigation based on an alternative theory of recovery clearly furthers the purpose of the holding in Lugenbuhl. And third, retroactive application would not impose an inequitable result. Prior to the trial court's decision that Lugenbuhl applies to this case, there was no prior final, definitive judgment that would be nullified by application of Lugenbuhl. Furthermore, appellant has (and the record indicates that appellant is utilizing) another avenue of seeking redress. Specifically, appellant may file (and, in fact, has filed) a medical malpractice claim against appellee in accordance with the MMA.
CONCLUSION
Accordingly, the trial court's judgment, maintaining appellee's exception of no cause of action and dismissing this action with prejudice, is affirmed. Costs of this appeal are assessed to appellant, Evelyn Wilson, on behalf of the minor child Tryistan Wilson.
AFFIRMED.
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