Court Discusses Informed Consent in Context of Medical Malpractice Case

For any medical procedure, a doctor or other practitioner is required to obtain “informed consent” from the patient. Essentially, this means that, except in certain emergency situations, a doctor is not permitted to perform any medical procedures that the patient has not authorized him to perform. Louisiana law outlines three ways for a doctor to get proper consent from a patient. First, the patient can acknowledge in a handwritten document that he or she had been informed of “The nature and purpose of the procedure” and of its “known risks,” and that he or she had the opportunity to have any questions “answered in a satisfactory manner.” La. R.S. 40:1299.40(A). Such consent is presumed under the law to be valid unless there is proof that the consent was given because the doctor misrepresented material facts.

The second option for obtaining consent requires the same elements as the first, with the exception that it does not have to be in writing. However, verbal consent is not given a presumption of valididty, but instead must be proved “according to the rules of evidence in ordinary cases.” La. R.S. 40:1299.40(C). The third and final option requires a doctor to disclose to the patient the list of risks for the proposed treatment that is maintained by the Louisiana Medical Disclosure Panel (LMDP). “Consent to medical care that appears on the [LMDP’s] list requiring disclosure shall be considered effective under [Louisiana law] if it is given in writing, [and] signed by the patient… and a competent witness. La. R.S. 40:1299.40(E). The LMDP offers a form for this purpose, the execution of which creates a “rebuttable presumption” that the consent is valid, provided that the doctor who will actually perform the treatment is the one who gives the required disclosure.

The issue of informed consent was at the center of the case Price v. ERBE USA, Inc., No. CA 09-1076 (La. Ct. App. 3d Cir, 2010). The plaintiff, James J. Price, visited the St. Patrick Hospital in Lake Charles on January 17, 2002, where he was scheduled for a colonoscopy procedure with Dr. Charles Humphries. During the procedure, Dr. Humphries found several polyps in Price’s colon, at which point he brought in Dr. Francis Bride, a gastroenterologist, to remove them. Dr. Bride’s surgical tool malfunctioned during the removal of one of the polyps, which resulted in an inadvertent burn to the wall of Price’s colon. Dr. Bride conducted extensive tests to detect a colon perforation and concluded none had occurred. Still, Dr. Bride ordered Price to remain in the hospital for an extended period that day for more monitoring, after which he released Price to go home. The next day, Price began to experience symptoms of a perforation. He returned to the emergency room at St. Patrick’s, and two days later underwent surgery to repair the perforation. Price later filed suit against Dr. Humphries and Dr. Bride, alleging a lack of consent for the polypectomy. At trial, a jury found for the doctors, and Price appealed.

The Court of Appeals reviewed the evidence presented at trial concerning Price’s consent to the colonoscopy. It noted that on January 4, 2002, Price received a pamphlet from Dr. Humphries which included specific information that polyps could be removed if discovered during the colonoscopy procedure. The pamphlet further discussed that removal carried several risks, including perforation of the colon wall. Price also signed two forms, which were witnessed by a nurse, on the morning of the procedure certifying that he was aware of the risks. The court concluded based on this evidence that the jury did not err in determining that Dr. Humphries had obtained informed consent of the third type under Louisiana statute (per La. R.S. 40:1299.40(E)) from Price.

As for whether Dr. Bride obtained the necessary consent, the court acknowledged that Dr. Bride certainly did not personally obtain consent from Price to perform a polypectomy, as he was uninvolved in the procedure until Dr. Humphries found the polyps. However, the court again turned to the pamphlet provided by Dr. Humphries on January 4, 2002, noting that it indicated polyps might be removed upon discovery as part of the colonoscopy procedure. Furthermore, Dr. Humphries testified at trial that he verbally informed Price on two occasions that if he discovered polyps during the procedure, he would bring in Dr. Bride to remove them. Finally, the court found that the consent form signed by Price permitted Dr. Bride to remove the polyps by its language because Dr. Bride was a physician “authorized” to perform the necessary procedure by Dr. Humphries. Accordingly, the court found no error on the part of the jury in concluding that Dr. Humphries obtained consent from Price for the polypectomy.

Although Price was not successful in his suit against Drs. Humphries and Bride, the case illustrates the importance that Louisiana law places on the obligation of doctors to obtain informed consent from their patients. The law seeks to protect patients from unnecessary or unwanted medical procedures, while permitting doctors to take action when needed to save a life or ease suffering. Ultimately, doctors have a responsibility to ensure their patients are knowledegable about and comfortable with any procedure they propose, and the failure to meet this responsibility can give rise to a negligence claim.

This case will be followed up with another analysis to help illustrate the specific technicalities involved in the matter, as well as how patients can best prevent getting a procedure they do not wish or can pursue litigation if a problem occurs.

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