I. claimant sustains damages caused by a characteristic of a product

AND

II. damages arose from a reasonably anticipated use of the product

--use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances

AND

III. damage causing characteristic of the product is unreasonably dangerous

a. characteristic existed at the time the product left the control of its manufacturer

OR

b. characteristic resulted from a reasonably anticipated alteration or modification of the product

--a change in a product that the product's manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances, and also means a change arising from ordinary wear and tear, but not because the product does not receive reasonable care and maintenance

BUT reasonably anticipated alterations or modifications of the product does not mean:

i) alteration, modification or removal of an otherwise adequate warning provided about a product, or

OR

ii) the failure of a person or entity, other than the manufacturer of a product, reasonably to provide to the product user or handler an adequate warning that the manufacturer provided about the product, when the manufacturer has satisfied his obligation to use reasonable care to provide the adequate warning by providing it to such person or entity rather than to the product user or handler

AND

IV. manufacturer failed to use reasonable care to provide an adequate warning of the damage causing characteristic and its danger to users and handlers of the product

BUT an adequate warning is not required if:

a. the product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics

OR

b. The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

UNLESS the manufacturer proves that at the time the product left his control he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the characteristic that caused the damage or the danger of such characteristic

BUT a manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product

AND

II. damages arose from a reasonably anticipated use of the product

--use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances

AND

III. damage causing characteristic of the product is unreasonably dangerous

a. characteristic existed at the time the product left the control of its manufacturer

OR

b. characteristic resulted from a reasonably anticipated alteration or modification of the product

--a change in a product that the product's manufacturer should reasonably expect to be made by an ordinary person in the same or similar circumstances, and also means a change arising from ordinary wear and tear, but not because the product does not receive reasonable care and maintenance

AND

IV. when the product left the manufacturer's control
(i) there existed an alternative design for the product that was capable of preventing the claimant's damage

AND

(ii) the likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product

BUT an adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product

--a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made

a. he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage or the danger of such characteristic

OR

b. he did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the alternative design identified by the claimant

OR

c. the alternative design identified by the claimant was not feasible, in light of then-existing reasonably available scientific and technological knowledge or then-existing economic practicality

The Supreme Court opinion does not discuss the nature of the alleged defect in the oil well pump, nor the cause of action alleged. Under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq., a product can be unreasonably dangerous in one of four ways: 1) construction or composition; 2) design; 3) inadequate warning; and 4) express warranty. Whether a product is unreasonably dangerous in design or because of an inadequate warning is determined at the time the product left the manufacturer's control. However, if the manufacturer later obtains actual knowledge or is imputed with constructive knowledge of a dangerous characteristic of the product, then the manufacturer must use reasonable care to provide a post-sale warning to users and handlers about the dangerous characteristic.

So, this commentator believes that if a manufacturer becomes aware (or should become aware) that its product is being used in an unsafe manner or is being misused, then the use becomes not only foreseeable, but forseen, and therefore is reasonably anticipated from the standpoint of the manufacturer. Once this knowledge is actually known or imputed to the manufacturer, then it must use reasonable care to provide post-sale adequate warnings. So, reasonably anticipate use is not a complete bar to recovery in a warnings claim, but rather must be determined based on the post-sale use and knowledge of the manufacturer.

The jury shall be further instructed that injury alone does not raise a presumption of the physician's, dentist's, optometrist's, or chiropractic physician's negligence.

These instructions are not to be given if the doctrine of res ipsa loquitur is found by the court to be applicable. La.R.S. 9:2794(C).

(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale (the locality rule) and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty (locality rule is inapplicable to specialists); and

(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and

(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794(A).

(a) He is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose. "Practicing medicine" includes but is not limited to training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

(b) He has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.

(c) He is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of care. In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing in that area.

(d) He is licensed to practice medicine by the Louisiana State Board of Medical Examiners under R.S. 37:1261 et seq., is licensed to practice medicine by any other jurisdiction in the United States, or is a graduate of a medical school accredited by the American Medical Association's Liaison Committee on Medical Education or the American Osteopathic Association.

La.R.S. 9:2794(D)

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant's fault and the injury alleged.

As examples of obvious negligence that could be inferred by a lay person, the Pfiffner court cited instances "where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body...." 643 So.2d at 1233-34. Other examples posited by the Pfiffner court include "[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary...." Id.

Where the malpractice is not so obvious, the plaintiff is cautioned that upon the defendant's prima facie showing in a motion for summary judgment, the plaintiff is required to produce expert medical evidence sufficient to establish that he/she will be able to satisfy his/her evidentiary burden of proof at trial, i.e. competent expert witness evidence of the breach of the applicable standard of care and that the breach caused the injuries. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002, 1009-10.

In Batson v. South Louisiana Medical Center, 99-0232 (La.11/19/99) 750 So.2d 949, the Louisiana Supreme Court held that three separate caps applied to three separate acts of medical negligence under the Malpractice Liability for State Services Act (MLSSA), La.R.S. 40:1299.39, et seq., where the damages were divisible into three different injuries, each traceable to a separate act of medical negligence.

It is important to note the differences in the language used in the MLSSA and the MMA. The MLSSA limits recovery to $500,00 for "the injury " for " an alleged act of malpractice." See La. R.S. 40:1299.39(F). The use of singular nouns in the MLSSA contrasts with the use of plural nouns in the MMA, which limits to $500,000 the amount recoverable "for all malpractice claims for injuries to or death of a patient..." La. R.S. 40:1299.42 B(1).

(1) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill;

(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;

(3) whether the pertinent act or omission involved assessment of the patient's condition;

(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;

(5) whether the injury would have occurred if the patient had not sought treatment; and

(6) whether the tort alleged was intentional.

See Lacoste v. Pendleton Methodist Hospital, L.L.C., 2007-0008 (La.9/5/07), 966 So.2d 519, 525-529, for a detailed analysis of the Coleman factors in relation to a Hurricane Katrina death case caused by failure to implement a proper evacuation claim and to equip the hospital with adequate emergency power, which allegations fell outside the protection of the Medical Malpractice Act.

A doctor has a duty to disclose all risks which are "material". To overcome the statutory presumption of informed consent where the patient has signed a consent form, the patient must first prove that a material risk existed. An adverse result does not establish a material risk. In broad outline, 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. The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great.

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient's position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.

The plaintiff in a lack of informed consent case must prove not only that the physician failed to disclose all material information, but also that there was a causal relationship between the doctor's failure and the damages claimed by the patient. Otherwise, the doctor's conduct, however wrongful, is legally inconsequential.

There are two aspects to the proof of causation in a lack of informed consent case. First, the plaintiff must prove, as in any other tort action, that the defendant's breach of duty was a cause-in-fact of the claimed damages or, viewed conversely, that the defendant's proper performance of his or her duty would have prevented the damages. Second, the plaintiff must further prove that a reasonable patient in the plaintiff's position would not have consented to the treatment or procedure, had the material information and risks been disclosed. Causation is established only if adequate disclosure reasonably would be expected to have caused a reasonable person to decline treatment because of the disclosure of the risk or danger that resulted in the injury. Although the patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed.

See Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988), and Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447, 454.

See also Miller v. LAMMICO, 2007-1352 (La.1/16/08), 973 So.2d 693, 702-03, 705, confirming that the Hall holding is not limited to circumstances in which the plaintiff is comparatively at fault.