Deborah Lavender
The Cochran Firm, Metairie, LLC
Assisted by Megan Shaffer, Ph.D.
I. Known risk—the likelihood that something bad or unexpected can result from a procedure, medication, treatment
A. Varies in severity, can be mild or life threatening
B. Under the Louisiana Uniform Consent Law, must disclose the nature and purpose of a medical procedure, along with the known risks, if any of death, brain damage, quadriplegia, paraplegia, loss or loss of function of any organ or limb, or disfiguring scars. Consent is presumed to be valid in the absence of proof that execution was induced by misrepresentation of material facts.
i. Rebuttable presumption of consent
ii. LaCaze v. Collier, 434 So.2d 1039 (La. 1983) considered oral consent, objective test for informed consent
C. Can obviously be related or seemingly unrelated to the treatment
i. post operative infection after surgery, such as breast augmentation
ii. kidney failure, skin changes after dye reaction in imaging studies
D. Must weigh the “risk” vs. benefit
E. LSA-R.S. 40:1299.40 E(2)(a) 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.
F. In Hondroulis v. Schuhmacher( 88-C-0600 (La. 9/12/88) 553 So.2d 398), the determination of materiality of risk, for disclosure, is a two-pronged test which established objective, reasonable man standard in order to protect physician from aberrational decisions on part of patient; first, existence and nature of risk must be determined, along with likelihood of its occurrence, and second, trier of fact must determine whether reasonable person in plaintiff’s condition would attach significance to that risk, considering incidence of particular injury and degree of harm.
G. Emergency exception to informed consent, Pizzalotto v. Wilson, 437 So.2d 859 (La. 1983)
II. Failure to treat a known risk complication is malpractice
A. Surgeon performing breast reduction surgery has an obligation to treat a postoperative infection timely
B. Batson v. South Louisiana Medical Center, 98 CA 0038R (La.App. 1 Cir 12/22/00) 778 So.2d 54. Patient suffered a post operative infection and hospital failed to administer antibiotics which were ordered, leading to patient’s sepsis, and subsequent multi organ failure. Ms. Batson also suffered a massive heart attack, and remained in critical condition on a vent. She progressed to ARDS and extensive decubitus ulcers requiring skin grafting. Ms. Batson, at age 37, was discharged to a nursing home, where she remained for 2 years, and remained wheelchair bound. Hospital was found liable for failing to treat Ms. Batson’s post operative infection.
C. Fusiler v. Dauterive, (2000-C-0151 (La 7/14/00) 764 So.2d 74). Patient brought action for injuries sustained while undergoing laparoscopic gallbladder removal. At conclusion of surgery, it was noted Mrs. Fusiler was bleeding from her mouth. During exploration of the abdomen, it was noted that Dr. Dauterive had at some point perforated her aorta, pierced the duodenum and mesentery. Upon attempting to correct the errors, Dr. Dauterive then punctured her intestine and splenic capsule. During the repairs, Mrs. Fusiler required 38 pints of blood, 9 units of plasma and 8 liters of Plasmalite.
Mrs. Fusiler spent considerable time in the hospital, with extensive follow up surgery. After discharge, she required further admitting and surgery and considerable complications. The medical review panel did not find that Dr. Dauterive breached the standard of care, as the defense expert indicated that because the defendant noticed his complication and attempted to repair it, this was appropriate treatment.
Both the trial court and the appellate court found in favor of the defendant, the Supreme Court found manifest error, reversed and remanded for correction.
