Understanding Informed Consent in Medical Malpractice Cases

A recent decision from the Louisiana Court of Appeals provides insight into precisely what a medical provider must get from a patient in order to create the presumption that they consented to medical treatment under Louisiana law.
This litigation arose from a procedure performed at St. Patrick Hospital in Lake Charles. Dr. Charles Humphries, a family practitioner, performed a colonoscopy on James J. Price, IV. Dr. Humphries detected several polyps in Mr. Price’s colon during the procedure and immediately aborted the procedure and had a gastroenterologist, Dr. Francis Bride, surgically excise the polyps–removing three of four of them without incident. During the removal of the fourth, the electrocautery snare being used malfunctioned causing a deeper burn of the colon that was desired. Dr. Bride visually inspected the area to rule out the possibility of an acute perforation of the colon. Dr. Bride did not see a perforation but ordered abdominal x-rays to confirm his lack of suspicion, with x-rays negative for any danger signs. Mr. Price’s stay was extended to rule out a perforation, and he was released to go home.

The next day, Mr. Price began to experience symptoms of a perforation and was directed by Dr. Humphries to go the ER at St. Patrick’s hospital. Mr. Price was prescribed antibiotics in hopes that the perforation would seal on its own. When this didn’t work, surgery was required.

Mr. Price and his wife brought a medical malpractice claim against Drs. Humphries and Bride and St. Patrick’s. The claim was submitted to a medical review panel as required under Louisiana law and the defendants were absolved of liability. Three years later the case went to trial with only the claims against the Drs. remaining. The jury found in favor of the Drs. with respect to the two issues considered at trial: whether Mr. Price’s consent was obtained for the polypectomy procedure and whether Mr. Price received appropriate post-procedure care. The appeal considers only the issue of consent.

What is Informed Consent under Louisiana Law?
La.R.S. 40:1299.40 provides three ways a medical provider can obtain informed consent:

The first requires handwritten consent to the treatment proposed, with the consent showing that the patient acknowledges that he has been informed of the risks and nature of the procedure and had an opportunity to have any questions answered. The consent is presumed to be valid as long as there is no proof that it was obtained through misrepresentation of facts.

The second type of consent can be obtained if the information required for the first consent is provided to the patient and he has the opportunity to have questions answered. However, unlike the handwritten consent, this consent must be proved according to traditional evidence rules and is not presumed valid.

The third way a physician can obtain informed consent is through providing the patient with a list of the risks of the procedure prepared by the Louisiana Medical Disclosure Panel (created under the Louisiana Department of Health and Hospitals). This type of consent is effective if it is in writing, signed by the patient and a witness, and it specifically provides the risks and hazards of the particular procedure in layman’s terms. The use of the form list of risks creates a rebuttable presumption similar to that created in the first type of consent above.This consent is set apart from the other two however, in that the actual physician or provider that will perform the procedure in question must provide the disclosures to the patient.
Was there informed consent in this case?
In this case, the evidence of consent is based on the testimony of the parties and four expert witnesses.The evidence establishes clearly that Mr. Price and Dr. Humphries discussed some specifics of the colonoscopy prior to the procedure, however, just what was discussed is disputed. According to Mr. Price, he was not told of the possibility of polyps or any other physician being involved, but that the procedure was merely for “screening.” Dr. Humphries on the other hand, testified that he explained what would occur during the colonoscopy and what he intended to accomplish – along with the possibility of the discovery and removal of polyps via a gastroenterologist. Dr. Humphries even claims that Mr. Price specifically selected Dr. Bride to remove polyps if necessary. In addition, both Mr. Price and Dr. Humpries agreed that Mr. Price was provided with a pamphlet concerning his procedure that included a discussion of the possibility of removing polyps through a colonoscope. The record also establishes that Mr. Price signed two different forms prior to his procedure that list material risks. According to Dr. Humphries, the information in the forms was reviewed with Mr. Price before he was sedated for the procedure. Mr. Price related that he did not read the forms and did not remember the conversation or signing anything.

With respect to the issue of consent obtained by Dr. Humphries, the Court of Appeals finds that the first form signed by Mr. Price should be presumed valid under Louisiana law, and Mr. Price’s statement that he did not read the form does not defeat the presumption. The only way Mr. Price could have overcome the presumption would be if he was able to establish several factors: 1) The existence of a material risk that the physician must disclose, 2) The failure of the physician to inform the patient of this risk, 3) The realization of the risk, and 4) A connection between the failure to inform and the realization of the risk.

With respect to the consent issue, previous courts have held that appellate courts should focus on the duty of a doctor to provide material information to a patient according to the circumstances of the particular case. As long as the trial court has acted reasonably, their findings should not be reversed even if the appellate court would have weighed the evidence differently. Even though there is conflicting testimony, the evidence establishes that Mr. Price did receive specific information about the possibility of removing polyps immediately after they were discovered during his procedure. In addition, three of the four expert witnesses found that Dr. Humphries met the applicable standard of care in obtaining consent. As such, the Court of Appeals finds no manifest error worthy of overturning the jury’s findings.

With respect to Dr. Bride, even though he himself did not obtain consent from Mr. Price (aside from supposed verbal consent just prior to the procedure), under La.R.S. 40:1299.40(C) other forms of consent are allowed when the patient is provided with general information about a procedure and risks. Mr. Price received a handout indicating that if polyps were found they might be removed. In addition, Mr. Price was informed that if Dr. Humphries found polyps he would have Dr. Bride remove them. In addition, the wording of the second form signed by Mr. Price makes Dr. Bride an “authorized physician” to perform a polypectomy because Dr. Bride is an associate of Dr. Humphries who performed the additional procedure as necessary. As such, the jury did not manifestly err in concluding it was more likely than not that Mr. Price consented to the polypectomy being performed by Dr. Bride if polyps were found. As such, the Court of Appeals affirms the jury’s findings in all respects.

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