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Jackson v. State6/29/2005
and actions taken by Drs. Ziegler and Swiger during surgery were not malpractice. It shows that their intent was to remove the fibroid tumors and to open the fallopian tubes, but the anatomical situation discovered as a result of surgery prompted them in the exercise of their medical judgment to proceed with removal of the uterus, fallopian tubes, and ovaries for the well-being of the patient. We cannot say that this record establishes a breach the standard of care even though Ms. Jackson underwent surgery in the hope of achieving fertility.
Moreover, the evidence shows that Ms. Jackson had no chance of conceiving absent some surgical intervention and possible utilization of IVF. As stated previously, the record does not show that Ms. Jackson desired IVF, that she was ever apprised of that option, or that she would be a realistic candidate for the procedure. Thus, the record does not establish that the surgery was the cause of Ms. Jackson's infertility or deprived her any real chance of pregnancy. For these reasons, we affirm the trial court's denial of Ms. Jackson's medical malpractice claim.
Informed Consent
The methods of obtaining informed consent are set forth in La. R.S. 40:1299.40, in relevant part, as follows:
A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed .... Such 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.
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C. Where consent to medical treatment from a patient ... is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.
In a lack of informed consent case, the plaintiff must prove not only that the physician failed to disclose all material information, but also that there was a causal connection between the failure to disclose and the claimed damages. Lugenbuhl, supra; LaCaze v. Collier, 434 So. 2d 1039 (La. 1983). To establish causation, the plaintiff must prove that the defendant's breach was a cause-in-fact of the claimed damages and that a reasonable person in the plaintiff's position would not have consented to the treatment or procedure if the material information and risks had been disclosed. Lugenbuhl, supra at 454. Some expert testimony is needed to establish the existence and nature of a material risk and the likelihood of its occurrence. Hondroulis v. Schumacher, 553 So. 2d 398, 412 (La. 1988). The issue is "whether a reasonable person in the patient's position probably would attach significance to the specific risk." Id.
In reviewing Ms. Jackson's informed consent claim, we are mindful of the supreme cou
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