Fountain v. Ochsner Clinic Foundation Westbank Campus
Fountain v. Ochsner Clinic Foundation Westbank Campus
Opinion of the Court
hThe plaintiff, Latanya Fountain, sued the defendant, Dr. Washington Bryan, alleging that he breached the applicable standard of care when he failed to obtain her informed consent to perform a bilateral tubal ligation and ventral hernia repair by laparotomy leaving her with a large, disfiguring abdominal scar.
Factual Background and Procedural History
Ms. Fountain first presented to Dr. Bryan, a physician practicing obstetrics and gynecology, for pre-natal care in October 2008, when she was approximately height weeks pregnant. Subsequently, Dr. Bryan delivered Ms. Fountain’s baby naturally on 5 May 2009. . During the course of . her pregnancy, based upon Ms. Fountain’s complaints of significant abdominal pain when full after eating, Dr. Bryan suspected she was suffering from a hernia, but chose not to address the issue at that time due to her pregnancy.
On 2 June 2009, during her six-week post-partum check-up, Ms. Fountain and Dr. Bryan discussed various birth control options, including a tubal • ligation as a means of permanently preventing future pregnancies. At that time, Ms. Fountain signed a state-mandated form consenting to a tubal ligation.
| sMs. Fountain returned to Dr. Bryan’s office on 6 August. 2009 for the pre-opera-tive consultation. According to Dr. Bryan, during .this consultation, he explained the different surgical options available in detail to Ms. Fountain and the risks associated with each one. Specifically, Dr. Bryan testified that he presented Ms. Fountain with two options. The first option involved making two separate incisions: one at the site of the lower abdomen near the fallopian tubes to allow tubal ligation by mini laparotomy, and the other at the navel to excise the hernia sac by laparotomy. The second option involved making only one incision at the navel site, where he could use a laparoscope instrument to destroy the fallopian tubes and also through which he could then extract the hernia sac. Having expressed her concerns to him about wanting only one incision, Dr. Bryan testified that he suggested to Ms. Fountain that rather than a laparotomy, he would attempt to perform the surgery laparo-scopically.
Five days later, on the morning of 11 August 2009, Ms. Fountain arrived at Ochsner Hospital for her scheduled surgery. Despite her written consent to undergo a tubal ligation and ventral hernia repair by laparoscopy, Dr. Bryan actually performed a bilateral tubal ligation and ventral hernia repair by laparotomy. As a result, instead of the two-inch scar Ms. Fountain was expecting and to which she claims she consented, she woke up from surgery to discover an approximate 15 centimeter (roughly six inches), T-shaped disfiguring scar on her abdomen.
In 2010, Ms. Fountain filed a medical malpractice complaint against Dr. Bryan alleging that he breached the standard of care in failing to properly perform a ventral herniorrhaphy,
1. There is a lack of adequate documentation of informed consent for the procedure scheduled and performed. The patient was consented for laparo- ' scopic tubal ligation and ventral hernia repair, and the procedure scheduled was*733 a laparotomy with tubal ligation and ventral hernia repair. There is no evidence in the operative report that the procedure was started with laparoscopy and converted to laparotomy.
2. However, the procedure was appropriately performed, and post-operative management was appropriate.
3. We do not believe the patient suffered an injury due to the above.9
According to Dr. Bryan, because Ms. Fountain did not raise the issue of informed consent in the complaint that she filed with the medical review panel, he did not address the issue in his original submission. However,’ after the panel released its opinion finding a lack of adequate, documentation to support informed consent for the procedure scheduled and performed, Dr. Bryan filed a supplemental submission requesting reconsideration, which contained his explanation as to why | (¡it was medically reasonable for him to convert the tubal ligation by laparoscopy to tubal ligation by laparotomy.
In February 2013, Ms. Fountain brought suit against Dr., Bryan and Ochsner Hospital.
In contrast, Dr. Bryan testified that he indeed initiated Ms. Fountain’s surgery by laparoscopy and explained to the jury why he converted her tubal ligation and ventral hernia repair by laparoscopy to a laparoto-my. Specifically, he testified that on the morning of surgery, the hospital staff brought Ms. Fountain into the operating room, placed her in stirrups, and set up to do a tubal ligation by laparoscopy. He testified that he commenced the surgery by making an incision 17into the umbilicus site of her abdomen
Ms. Fountain’s surgery was documented in a post-operative report prepared by Dr. Bryan within an hour and a half following her surgery, which report was introduced into evidence at trial. Dr. Bryan’s report documented that the procedure(s) he performed included: “Mini laparotomy;” “Bilateral tubal ligation;” and “Ventral Herni-orrhaphy.”
The nurses’ notes from the day of Ms. Fountain’s surgery were received into evidence at trial as part of the medical records. These notes indicated that when she arrived in the operating room, Ms. Fountain was transferred to the operating room bed and that a “safety strap was applied to her mid thighs” and “secured to [the] bed.” This notation was consistent with the anesthesiology record also in evidence, which documented that Ms. Fountain was placed in the “supine” position for surgery (ie., laying completely flat), as opposed to being placed in a “lithotomy” position (ie., ,in stirrups) as claimed by Dr. Bryan. The medical records contain no indication that the surgical instruments typically used in laparoscopic surgery were ever opened or that trocars
On 16 March 2015, the jury returned a verdict finding Dr. Bryan liable to Ms. Fountain for failing to properly obtain her informed consent to perform the tubal ligation and ventral hernia repair by lapa-rotomy and that his failure to do so was a
On 8 April 2015, Dr. Bryan filed a motion and order for JNOV, which the trial court denied. This timely appeal followed.
Assignments of Error and Issues Presented for Review
On appeal, Dr. Bryan avers that the trial court’s denial of his motion for JNOV was manifestly erroneous because the jury’s verdict is. not supported by the facts adduced at trial. He also avers that the jury manifestly erred in finding that the lack of informed consent was the proximate cause of Ms. Fountain’s disfiguring scar. In addition, Dr. Bryan assigns multiple issues for our review, including:
(1) Is a physician presumed to have discharged his duty to obtain informed consent to a surgical procedure where the executed written consent form complies with the requirements of La. R.S. 40:1299.39.5;
(2) Are the risks identified and promulgated by the Louisiana Medical Disclosure Panel for a surgical procedure presumed to constitute adequate disclosure for an informed consent for that procedure;.'
(3) Can a jury determine the material risks required to be disclosed for an informed consent to a surgical procedure without benefit of expert testimony |inestablishing the frequency and severity of known risks of the procedure;
(4) What is a plaintiffs burden of proof to establish lack of informed consent to a surgical procedure;
(5) What is a plaintiffs burden of proof to establish lack of informed consent to a surgical procedure to which she had not consented;
(6) Did expert testimony identify any risks associated with the procedures actually performed that were not disclosed in the consent form signed by Ms. Fountain; and
(7) Did expert testimony establish that “but for” tubal .ligation with laparot-omy there would be no disfiguring scar?
Law and Analysis
Standard of Review
The question of whether informed consent was or was not given is a question of fact to be resolved by the fact finder, and the manifest error standard of review applies to such factual findings on appellate review. Snider v. Louisiana Medical Mut. Ins. Co., 13-0579, p. 20 (La.12/10/13), 130 So.3d 922, 938. Under the manifest error standard of review, a court of appeal may not set aside a trial court’s findings of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, in order to reverse a jury’s determination, an appellate court must find that’ a reasonable factual basis does not exist for the jury’s findings and, further, that the findings are clearly wrong. Henderson v. Ayo, 11-1605, p. 3 (La.App. 4 Cir. 6/13/12), 96 So.3d 641, 644; Brandt v. Engle, 00-3416, p. 10 (La.6/29/01), 791 So.2d 614, 621 (citing Rosell v. ESCO, 549 So.2d at 844). Consequently, the issue to be resolved- by a reviewing court is not whether the trier-of-fact was right, or wrong, but whether the Infact finder’s conclusion was a reasonable one. Snider, 13-0579, p. 20, 130 So.3d at 938 (citing Stobart v. State, Department of
Further, where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the jury should not be disturbed upon review, even though the appellate court may believe its own evaluations and inferences are reasonable.
Moreover, a motion for JNOY should be granted only when the evidence points so strongly in favor of the moving party that reasonable minds could not reach different conclusions. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La. 1991); La. C.C.P. art. 1811.
Based upon the assignments of error designated by Dr. Bryan, it is apparent that he seeks shelter from liability to Ms. Fountain on the basis pf the consent forms she signed prior to surgery. Specifically, he argues that because the forms she executed identified the material risks promulgated by the Louisiana Medical Disclosure Panel for the laparotomy he performed as required by La. R.S. |1240:1299.39.5,
Louisiana’s Uniform Consent Law
In 1975, Louisiana enacted a Uniform Consent Law, La. R.S. 40:1299,40.
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*737 physician or other health care provider to disclose or adequately 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.20
| i.Jn order for a plaintiff to prevail in an action based on a failure to obtain informed consent, he or she must prove: (1) a material risk existed that was unknown to the patient, (2) the physician failed to disclose the risk, (3) the disclosure of the risk would have led a reasonable patient in the patient’s position to reject the medical procedure or choose another course of treatment, and (4) the patient suffered injury. Snider, 13-0579, p. 8, 130 So.3d at 929-30. Additionally, this court has recognized that in a case “where the plaintiff alleges there has been no consent, the law requires only proof of a material risk that was not disclosed and the occurrence of that risk.” Rosales, 07-0517, p. 6, 973 So.2d at 862.
In Snider, 13-0579, p. 8, 130 So.3d at 930, the Supremei, Court (citing its earlier decision on rehearing in. Hondroulis v. Schuhmacher, 553 So.2d 398, 411 (La. 1988)), discussed the principles underlying Louisiana’s informed consent doctrine:
The informed consent doctrine is based on the principle that every human being of adult years and sound mind has the right to determine what shall be done to his or her own body. Surgeons and other doctors are thus required to provide their patients with sufficient information to permit the patient himself to make an -informed and intelligent decision on whether to submit to a proposed course of treatment. Where circumstances permit, a patient should be told ■ the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failure to undergo any treatment or procedure, at all, and the risks of any alternate methods of treatment.
The Uniform Consent Law provides three approaches for obtaining informed consent. See Lá. R.S. 40:1299.40 E(2)(b) (“Consent to medical treatment may be luevidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the Louisiana Medical Disclosure Panel pursuant to the provisions of ... [Suhsjeetion [E] as another method by which to evidence a patient’s consent to medical treatment.”)
First, pursuant to La. R.S. 40:1299.40 A(l),
Second, pursuant to La. R.S. 40:1299.40 C,
Third, pursuant to La. R.S. 40:1299.40 E, informed consent may be obtained by making the disclosures required by the Louisiana Medical Disclosure Panel (“the Panel”), which was created within the Department of Health and Hospitals to determine which risks and hazards related to medical care and surgical procedures must be disclosed by a physician or other health care provider to a patient and to establish the general form and substance of such disclosure, pursuant to La. R.S. 40:1299.40 E(3)(a).
A physician or other health care provider who chooses to utilize the lists prepared by the Panel in connection with obtaining a patient’s consent is considered to have complied with the requirements of the subsection if disclosure is made as provided in La. R.S. 40:1299.40 E(6). See La. R.S. 40:1299.40 E(5).
In order “to be covered” by the provisions of Subsection E of La. R.S. 40:1299.40, Paragraph E(7)(c) directs that the physician or other health care provider who will actually perform the considered medical or surgical procedure must also: (1) disclose the risks and hazards in the form and to the degree required by the Panel; (2) disclose additional risks, if any, particular to a patient because of a complicating medical condition; (3) disclose reasonable therapeutic alternatives and risks associated with such alternatives; (4) relate that he is obtaining a consent to medical treatment pursuant to the lists formulated by the Panel; and (5) provide an opportunity for the patient to ask any questions about the contemplated medical or surgical procedure, ■ risks, or alternatives and acknowledge in writing that he answered such questions, the receipt of which must also be acknowledged in writing. See La. R.S. 40:1299.40 E(7)(c).
When the disclosures are given as required by, and a consent form is executed in accordance with Subsection E, the consent is admissible in evidence and creates a rebuttable presumption of compliance with La. R.S. 40:1299.40 E(5) and (6), and this presumption must be included in a jury charge. See La. R.S. 40:1299.40(E)(7)(a)(i).
In the case sub judice, the surgical procedure at issue included a bilateral tubal ligation and ventral hernia repair. As listed in 48 La. Admin. Code, pt. I, § 2303, the Panel requires disclosure of the following risks and hazards associated with “Female Genital System Treatments and Procedures,” including the following:
C. All Fallopian Tube and Ovarian Surgery with or without Hysterectomy, including Removal and Lysis of Adhesions.
1. injury to the bowel and/or bladder;
2. sterility;
3. ' failure to obtain fertility (if applicable);’
4. failure to obtain sterility (if applicable);
5. loss of ovarian functions or hormone production from ovary(ies);
|1fl6. injury to ureter;
7. injury to blood vessels, hemorrhage, need for transfusion of blood products;
8. failure to remove entire ovary possible requiring further surgery (ovarian remnant syndrome);
9. pulmonary embolism.
D. Abdominal Endoscopy (Peritoneos-copy, Laparoscopy).
1. puncture of the bowel or blood vessel;
2. abdominal infection and complications of infection;
3. abdominal incision and operation to correct injury;
4. injury to bladder;
5. injury to ureter;
6. possible air embolus.
The Consent Forms Signed by Ms. Fountain
It is uncontested that Ms. Fountain voluntarily gave her written consent for Dr. Bryan to perform a bilateral tubal ligation and ventral hernia repair and, the written consent form she admittedly signed informed her that the procedures included a “laparoscopic tubal ligation and ventral hernia repair.” As noted previously, the purpose of -the procedures was described on the form as follows: “to cut into my belly [to] destroy my tubes in an at
On appeal, Dr.. Bryan claims he informed Ms. Fountain of all risks associated with “tubal ligation,” encompassing not only tubal ligation by laparoscopy but also “tubal ligation by. laparotomy.” In addition, he claims he advised Ms. Fountain as to the general risks associated with surgery under general anesthesia, including “disfiguring scars.” By signing the consent form, Dr. Bryan therefore contends Ms. Fountain accepted all risks of scarring associated with surgery, whether by lapar-oscopy or laparotomy.
UaMs.- Fountain does not dispute that prior to surgery she signed the consent form aforedescribed, which expressly identified the surgical procedures she was undergoing as a “laparoscopic tubal ligation and ventral hernia repair.” She also does not dispute that she understood that following the minimally-invasive laparo-scopic surgery, a scar would remain on her abdomen — ie., a ' possible two-inch scar as described to her by Dr. Bryan. Ms. Fountain argues that, under the informed consent statute, and the specific consent form she signed, the form is a disclosure only for the risks of scarring associated with the minimally invasive surgery identified on the form to which she consented; that is, laparoscopic surgery. Nonetheless, it is undeniable that Dr. Bryan performed an altogether different surgery — a tubal ligation by laparoto-my, which actually involved cutting directly through her abdominal wall — to which she claims — and the jury apparently believed — she did not give her’ consent. We agree.
In this case, despite Dr. Bryan’s testimony to the contrary, the consent form signed by Ms. Fountain evidences her consent only to the procedures identified: la-paroscopic tubal ligation and ventral hernia repair. Consequently, her acceptance of the risks of scarring were the material risks of scarring associated only with that laparoscopic procedure. And though Dr. Bryan contends he disclosed the risks of laparotomy to Ms/ Fountain (presumably by 'circling sections “C”-and “D” on Attachment II of the consent form), “laparot-omy” is not mentioned anywhere on l^the form, nor does the form seek Ms. Fountain’s consent for or alert-her to the risks of scarring associated with that particular surgical procedure; At trial, Ms. Fountain denied ever having received Attachment II.
Our review of the record in this case reveals that ample evidence was presented upon which the jury could have reasonably found that Dr. Bryan never initiated Ms. Fountain’s surgery laparoscopically and, further, that he failed to obtain the proper informed consent from Ms. Fountain for the laparotomy he actually performed. Because a reasonable factual basis exists for the jury’s findings, the jury’s verdict is not manifestly erroneous or clearly wrong. Accordingly, we find the various assignments of error asserted by Dr. Bryan relating to the issue of informed consent lack merit.
1 graving determined that the presumption of informed consent does not apply, in accordance with the informed consent statute, this case is “subject to proof according to the rules of evidence in ordinary cases.” See La. R.S. 40:1299.40 C.
The plaintiffs expert, Dr. Edward Koch, a board certified obstetrician/ gynecologist from McLean, Virginia, explained to the jury that the risks associated with a lapar-oscopy and a laparotomy differ as they are two different surgical procedures involving the use of different surgical instruments.
• Our review of the appellate record leads us to conclude that the jury’s factual- finding that Dr. Bryan failed'to disclose to Ms. Fountain the risk of scarring associated with the laparotomy he performed and that such a risk was material is supported by the evidence .admitted at trial. Accordingly, we, hold the jury was not manifestly erroneous or clearly wrong in finding Dr. Bryan liable to Ms. Fountain for subjecting her to, the risk of a disfiguring scar from a laparotomy performed without her consent.
In his last assignment of error, Dr. Bryan avers that the jury manifestly erred in “finding that Ms. Fountain’s lack of consent to tubal ligation with laparoto-my was the cause-in-fact of’ her disfiguring scar on the basis that Ms. Fountain lacked the requisite expert testimony to prove this element of her case. Specifically,disaccording to Dr. Bryan, while Dr. Koch testified that the “care given to Ms. Fountain contributed to her large scar,” he “never opined that but for the switch in tubal ligation procedure, [Ms.] Fountain would not have. sustained such a. large scar.” We disagree.
Our review of the record indicates that both Dr. Koch and Dr. Bryan testified that the T-sháped scar Ms. Fountain sustained was a result of the incision Dr. Bryan made when he performed the tubal ligation and ventral hernia repair by laparotomy. Specifically, under cross-examination Dr. Bryan testified:
Q. Okay. But what she actually got, as written in your operative report, what she actually got was a mini laparotomy. And the scars that we’ve talked about that are on her stomach are all as a result of her having a mini laparotomy and lapa-rotomy for the ventral hernia repair, correct?
A. That’s correct.
And Dr. Koch testified as follows:
A. It directly is a cause of her scar. Whatever happened during the surgery, which is totally' unexpected, has left her with quite a disfiguring scar, much different than the small incision that he described [to] her in her appointment were she agreed to having her tubal ligation and ventral hernia repaired originally.
Dr. Bryan’s argument appears to presuppose that the jury believed his testimony that he began Ms. Fountain’s surgery laparoscopically and, due. to unexpected circumstances and for her safety," had to
In light of the record before us, we find the jury’s choice was reasonable and supported by the evidence. This assignment of error also lacks merit.
CONCLUSION
For the foregoing reasons, finding the jury’s verdict is supported by the record evidence, and thus, is not manifestly erroneous or clearly wrong, we affirm.
AFFIRMED.
. Ms. Fountain also named as a defendant, Ochsner Foundation Clinic Westbank Campus, alleging medical malpractice. At trial, the jury exonerated the hospital and that finding has not been challenged on appeal.
. Dr. Bryan testified that Ms. Fountain was presented with a consent form mandated by the state, which she signed, and that she delayed making a final .decision to undergo permanent sterilization for the time period required under state law.
. The CT scan performed on 6 July 2009, confirmed the presence of "a small fat-containing ventral hernia in [Ms. Fountain's] left paramidline abdomen several centimeters above the umbilicus [navel] with the defect measuring only 5 [millimeters] - or so in width and the hernia sac measuring approximately 2,0 x 1.3 [centimeters].”
.Laparotomy and laparoscopy are two separate and distinct approaches to abdominal surgery. Laparoscopy is a minimally invasive surgery, which requires special equipment and a high resolution display device to visualize (rather than expose) the intra-abdominal contents during surgery. Conversely, laparot-omy it the cutting open of the abdominal
,The patient consent form Ms. Fountain executed on 6 August 2009 contains no reference tp a "mini laparotomy,” which, according to the medical records and Dr. Bryan’s own testimony, is the procedure he previously scheduled for her in June.
. The' trial testimony and photographs entered into evidence confirm the existence of the large, disfiguring scar described by Ms. Fountain.
. “Herniorrhaphy” refers to the surgical repair of a hernia. .
. See Footnote 1, supra.
. In essence, while the medical review panel concluded that Dr. Bryan failed to obtain Ms. Fountain’s informed consent for the laparoto-my, because the laparotomy performed was done properly and the post-operative management was appropriate, the panel determined that the lack of informed consent did not give rise to any-injury to Ms, Fountain. ■
. For reasons unexplained, the members of the medical review panel never received, and therefore never reviewed or considered, Dr. Bryan’s supplemental submission and request for reconsideration.
. See Footnote 1, supra.
. The "umbilicus” is also known as the navel.
. The "peritoneum” is the serous (thin and watery, like serum)- membrane lining the : walls ’ of ‘.the abdominal and pelvic cavities.
, See Footnote 7, supra.
. A "trocar” is a surgical instrument with a ■ three-sided cutting point enclosed in a tube that is used to puncture the wall of a body cavity to provide an access port for the subsequent placement of other instruments during laparoscopic surgery. See Mosby’s Medical Dictionary, "trocar,” 9th edition, 2009.
. It is apparent from our review pf the, rec- ' ord that the cá'se before the jury hinged on Dr. Bryan’s credibility and the jury's determination of whether or not he was telling the truth about initiating Ms, Fountain’s surgery laparoscopically, and only thereafter, for her safety, converted to laparotomy. Based upon their responses to the jury interrogatories and the resulting verdict, it is obvious that the jury did not find Dr. Bryan’s testimony credible.
. .La, R.S. 40:1299.39.5 was redesignated as La. R.S. 40:1157.1 by. H.C.R, No. 84 of the 2015 Regular Session (hereinafter referred to in other footnotes as "HCR 84”).
. La. R.S.40:1299.40 was amended by La. Acts 2012, No. 759, §' 2, effective 12 June 2012; to consist of La. R.S. 40:1299.39.5 to 40:1299.39.7. Section 3 of Act 759 repealed La. R.S. 40.1299,40. The repealing Act revised Part XXII, “Uniform Consent Law” of Chapter ’5 of Title 40 of the Louisiana Revised Statutes. The. general subject matter of Part XXII remained unchanged. Thereafter, La, R.S. 40:1299,39.5, 40:1299.39.6, and 40:1299.39.7 were redesignated as La. R.S. 40:1157.1, 40:1157:2, and 40:1157.3, respectively, by HCR 84, effective 2 June 2015.
.By La. Acts 2012, No. 759, § 2, La. R.S. 40:1299.40 E(2)(a) was amended and became La. R.S.- 40:1299.39.5 D (currently La.- R.S. 40:1157.1 D). . ’
. The 1990 amendment, specifically La. R.S. 40:1299.40 E(3)(a) (currently La. R.S. 40:1157,2), created the Louisiana Medical Disclosure Panel and charged it with determining which risks and hazards related to medical care and surgical procedures must be disclosed by a physician to a patient, and establishing the general form and substance . of such disclosure.
. The substance of former La. R.S. 40:1299.40 E(2)(b) now appears in La. R.S. 40:1157.1 E (redesignated' from R.S. 40:1299.39.5 E).
. The substance of former La. R.S. 40:1299.40 A(l) now appears in La. R.S. 40:1157,1 A (redesignated from R.S. 40:1299.39.5 A).
. In addition to other revisions to the statute, the phrase “handwritten consent” was deleted from former La. R.S. 40:1299.40 A(l) by 2008 La. Acts, No. 738, § 1, effective 3
.The substance of former La. R.S. 40:1299.40 .C now appears in La. R.S. 40:1157.1 C (redesignated from R.S. 40:1299.39.5 C).
. The substance of former La. R.S. 40:1299.40 E(3)(a) now appears in La. R.S. 40:1157.2 B(l) (redesignated from La. R.S.40:1299.39.6 B(l)).
. The substance of former La. R.S. 40:1299.40 E(4)(a) and (b) now appears in La. R.S. 40:1157.2 J(l) and (2) (redesignated from La. R.S.40:1299.39.6(J)(1) and (2)).
. The substance of former La. R.S. 40:1299.40 E(4)(c) now appears in La. R.S. 40:1157.2 J(3) (redesignated from. R.S.40:1299.39.6 J(3)).
. The substance of former La. R.S. 40:1299.40 E(5) now appears in La. R.S. 40:1157.2 M (redesignated from La. R.S. 40:1299.39.6 M).
. See Footnote 28, supra.
. The substance of former La. R.S. 40:1299.40 'E(6) now appears in La. R.S. 40:1157.2 N (redesignated from La. R.S. 40:1299.39.6 N).
. The substance of former La. R.S. 40:1299.40 E(7)(b) now appears in La. R.S. 40:1157.2 0(2) (redesignated from La. R.S. 40:1299.39.6 0(2)).
. The substance of former La. R.S. 40:1299.40 E(7)(c) now appears in La. R.S. 40:1157.2 P (redesignated from R.S.40:1299.39,6 P).
. The substance of former La. R.S. 40:1299.40 E(7)(a)(i) now appears in La. R.S. 40:1157.2 0(l)(a) (redesignated from La. R.S.40:1299.39.6 0(1 )(a)).
. The substance of former La. R.S. 40:1299.40 E(7)(a)(ii) now appears in La. R.S. 40:1157.2 0(l)(b) ‘ (redesignated from La. R.S.40:1299.39.6 0(l)(b)). ' '
. The term "[e]mergency services” is defined by La. R.S. 40:2113.6 C as meaning "services ... that must be provided immediately to stabilize a medical condition which, if not stabilized, could reasonably be expected to result in the loss of the person’s life, serious permanent disfigurement or loss or impairment of the function of a bodily member or organ, or which is necessary to provide’ for the care of a woman in active labor if 'the hospital is so equipped and, if the hospital is not equipped, to provide necessary treatment to allow the woman to travel to allow the woman to a more appropriate facility without undue risk of serious harm.”
.Section 4 of 2012 La. Acts, No, 759, declared that all existing medical disclosure lists duly promulgated by either a prior Panel or by the Department of Health and Hospitals Secretary would remain effective and would be deemed to have been promulgated by the newly-created Panel until such time as those lists could be updated and re-promulgated pursuant to the provisions of Act 759.
. “Multiparity” is the status of a mother of more than one child.
. Attachment II, captioned "Patient Consent to Medical Treatment, Surgical Procedure and Acknowledgement, Receipt of Medical Information,” lists the risks identified by the Panel in 48 La. Admin. . Code, pt. 1 § 2303 as being associated with “Female Genital System Treatments and Procedures.” Circled on the form Dr. Bryan contends he gave to Ms. Fountain were items "C. All fallopian tube and ovarian surgery with or without hysterec- ■ tomy, including removal and, lysis of adhe-sions” and "D. Abdominal endoscopy (perito-neoscopy, laparoscopy).”. The.specific risks identified in "C” and "D” are listed, above. Notably, neither "C” or "D” even discuss scarring risks. Moreover, at trial, Ms, Fountain denied ever having received Attachment II.
.■ At trial, Dr. Biyan testified that he was of the belief that the consent form Ms. Fountain signed gave him the authority to attempt to perform the identified procedures laparoscop-ically, but that, if necessary .for her safety, that authority, extended to allow him to convert the procedure to an "open procedure or a laparotomy." He. further testified that every single consent form, including the one executed by Ms. Fountain, includes, the possibility of • a laparotomy,in the.event it is not possible to continue the surgery laparoscopically, both of
. La. R.S. 40:1299.36 now appears in La. R.S. 40:1157.2, redesignated by HCR 84.
. Dr. Bryan testified at trial that in Ms. Fountain's case, while the plan was for him to proceed with a laparoscopic approach for the tubal ligation, it was never his intention to complete the ventral hernia repair laparo-scopically; as he was not certified or authorized to perform laparoscopic hernia surgery. (Dr. Bryan testified that in 2009, most all hernia repair surgeries were performed with laparotomy.) Specifically, Dr. Bryan testified that it was always his intent to attempt to do the tubal ligation laparoscopically and then proceed through the same incision to complete the ventral hernia repair by laparotomy, thereby resulting in only the one scar Ms. Fountain said she wanted. Dr. Bryan claims he advised Ms. Fountain- of this "plan” and that this is what she agreed to when she signed the consent form on 6 August 2009. Conversely, Ms, Fountain testified that in the 6 August 2009 pre-operative consultation, Dr. Bryan told her that he could perform both elective procedures laparoscopically through a relatively small incision and that he never even discussed with her the possibility of performing a-mini laparotomy (which requires cutting through, opening up, and exposing the abdominal cavity), to accomplish either the tubal ligation or the ventral hernia repair.
. As noted supra, pursuant to former La. R.S. -40:1299.40 E(7)(c)(v), the substance of which now appears in La. R.S. 40:1157.2 P(5) (redesignated from La. R.S. 40:1299.39.6 P(5)), Sections "C" and "D” of Attachment II
.Pursuant to former La, R.S. 40:1299.40 C, the substance of which now appears in La. R.S. 40:1157.1 C (redesignated from La. R.S. 40:1299.39.5 C), claims of consent outside the scope of any presumption are controlled by the ordinary rules of evidence,
. Ms. Faucheaux testified that, as Ms. Fountain's holding nurse, she was responsible for and did present her with a number of consent forms, in addition to information contained in the hospital’s computer, identifying the procedure that was going to take place.
. According to Dr. Koch, his review of the medical records suggested to him that the surgical instruments generally associated with
Case-law data current through December 31, 2025. Source: CourtListener bulk data.