Problems with informed consent usually arise in the discussion of the risks associated with the treatment. For example, if a physician says there are ten risks and an eleventh risk occurs, a suit
often is filed claiming the patient would not have consented to the operation had the patient known of that eleventh risk.
To understand the nuances of informed consent and to see how the courts can create a labyrinth
of legal complexity, it is worthwhile to review the informed consent experience in Louisiana.
Louisiana Uniform Consent Law of 1975 Louisiana attempted to solve the problem of informed consent in 1975 with the passage
of La. R.S. 40:1299.40. This law states that consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts, if
Incidentally, the risks listed in this law were supposed to be the whole universe of risks that needed to be told to the patient. The burden then shifted to the patient to ask any other
questions about risks.
The Louisiana Uniform Consent Law of 1975 was upheld by the Louisiana courts on many occasions. However, on June 19, 1989, the Louisiana Supreme Court
ruled in the Hondroulis v. Schumacher case, 553 So2d 398 (La. 1989), that "loss of function of an organ" was too generic and the doctor needed to be more specific. For example, the doctor in the Hondroulis
case used the standard wording in the statute, which included "loss of function of an organ", and the patient lost the function of the bladder after a lumbar laminectomy. The court said that the doctor had to
mention loss of function of the bladder specifically. The court said not all risks needed to be mentioned, just the "material" risks. The court said a risk is material "when a reasonable person in what
the doctor knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy."
Louisiana Medical Disclosure Panel/1990 - Present
After the Hondroulis case, physicians, on the advice of their attorneys, began listing many risks because they could not be sure what risks the court later
might determine with the retrospectoscope to be "material." In some cases, physicians listed over 100 risks. Finally, in 1990 the Louisiana legislature, taking an idea developed originally in the Texas
legislature, passed R.S. 40:1299.40 E which created the Medical Disclosure Panel. The task of the Medical Disclosure Panel is to define what risks must be disclosed for any given operation or therapy. The Panel consists
of six physicians, three attorneys from the Louisiana Trial Lawyers' Association, one attorney from the Louisiana Defense Counsel Association, and one dentist who specializes in oral and maxillofacial surgery. Since its
creation, the Medical Disclosure Panel has released the risks for 127 procedures. The work of the Panel continues and the members meet bimonthly. Although the risks developed by the Medical Disclosure Panel are not
legally binding in other states, it is worthwhile to review those risks when investigating what risks might be "material" for any given procedure or therapy.
Although I was the Chair of the Louisiana Medical Disclosure Panel
during its first 10 years, the official way to get copies of the
risks and the approved consent form is to call the Louisiana
Department of Health and Hospitals (DHH) in Baton Rouge, Louisiana.
The contact person (as of this updated note of January 19, 2007) at
DHH is John Newsom, phone 225-342-3807, email: jdnewsom@DHH.LA.GOV
A few important points about informed consent. It is the
responsibility of the physician who is performing the operation or
administering the medical treatment to get the informed consent. The
Medical Disclosure Panel's list and recommended consent form is
optional, not mandatory. Physicians who do not use the Medical
Disclosure Panel's risks and consent form are bound by the law of
R.S. 40:1299 (Uniform Consent Law Sections A, B, and C), and the
Hondroulis case interpretation of that law. Informed consent under
this older version of informed consent is valid as an oral consent as
well as a written consent. However, written consent always is advised
as oral consent is difficult to prove.
Copyright ©1995 Donald J. Palmisano, M.D., J.D.