Proving Lack of Informed Consent Under the Louisiana Uniform Consent Law

Louisiana’s Uniform Consent Law, La. R.S. 40:1299.40, requires disclosure of the nature and purpose of a medical or surgical procedure, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars. Thus, a competent person contemplating treatment must be advised of the known serious complications which might result. This enables the patient to make an informed decision. Written 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.

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.

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