Page:Aka v. Jefferson Hospital Association, Inc.pdf/29

Rh   Nevertheless, the majority seeks to "reward" the plaintiff for causing Chatelain to be overruled. Again, this makes no sense when it is the General Assembly that changed the public policy of this state in response to Chatelain beginning with Act 1273 of 1999 and concluding with Act 1265 of 2001. The Aka lawsuit did not do so.

I would apply today's decision only from the date the General Assembly amended the wrongful death statute to include viable fetuses. That legislation (Act 1265) was approved on April 4, 2001, without an Emergency Clause and becomes effective ninety days after the General Assembly adjourned. To overturn Chatelain for one case for a period before the public policy of this state changed is a unique decision. There is no case where this court has previously done so. Certainly, the majority opinion cites us to none.

On a separate point, I disagree with the majority's rationale for affirming the trial court on the appellees' cross-appeal regarding the lack of faculty supervision for the residency program. The appellees' cross-appeal is conditional upon this court's reversing and remanding for a new trial. The fact that the appellees prevailed in the first trial and, thus, suffered no prejudice is not a sufficient reason to affirm. I would affirm the trial court on this point because the trial court gave a sufficient limiting instruction to the jury concerning Nurse Parker's testimony. For that reason, I conclude that the trial court did not abuse its discretion with respect to the cross-appeal.

Dissenting in part. Concurring in part.

T, J., joins.