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SUPREME COURT OF LOUISIANA

No. 97-C-0744
PATRICK WARTELLE AND KRISTINE WARTELLE
Versus
WOMEN'S AND CHILDREN'S HOSPITAL, INC. AND

LOUISIANA PATIENTS' COMPENSATION FUND

LEMMON, J., Dissenting
The critical inquiry is the meaning of La. Civ. Code art. 26's language "except for purposes of actions resulting from its wrongful death."  The word "it" in that language refers to the unborn child who is born dead.
But for its wrongful death, the unborn child in the present case would have been born alive.  Until the death-causing medical malpractice committed by the admitted tortfeasor during the delivery, the unborn child was a live, full-term and fully viable fetus.
As this court noted in Danos v. St. Pierre, 402 So. 2d 633 (La. 1981)(on reh'g), it would be arbitrary and illogical to reward the tortfeasor with immunity from liability because the tortfeasor injured a viable fetus seriously enough to cause its death just before birth, rather than immediately after the birth.  When the Legislature heeded that reasoning by this court and amended Article 26 to add the pertinent language, the lawmakers clearly reserved all actions resulting from a tort committed on a viable fetus that caused the fetus wrongfully to be born dead.
In Thomas J. Andre, Louisiana Wrongful Death and Survival Actions

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Louisiana Law