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Jackson v. State6/29/2005
rt's recent informed consent decision in Thibodeaux v. Jurgelsky, 2004-2004 (La. 3/11/05), 898 So. 2d 299, rehearing denied. That opinion forcefully reminds us that we must not substitute our own factual finding for that of the trial court and that the evidence must be viewed in the light most favorable to the party who prevailed before the trier of fact. See also Lugenbuhl, supra.
Claiming that she signed a blank consent form that was later filled in by the physicians, Ms. Jackson asserts that she did not give informed consent for removal of her uterus and ovaries. Ms. Jackson, who had been a patient at Conway over the years, testified at trial that Conway had patients sign a blank consent form at admission. Cross-examination of Ms. Jackson revealed that at her deposition she initially denied ever seeing the form, but then she admitted that the signature was hers and claimed that one side was blank when she signed. She then claimed that it was handed to her so that one page covered the other; however, the original form signed by her was only one page printed on both sides.
The record includes a fully executed consent form signed by Ms. Jackson. The signed form is presumed valid and effective absent proof that its execution was induced by misrepresentation of material facts. La. R.S. 40:1299.40(A)(1). Ms. Jackson has not established that misrepresentation of material facts induced her to sign the form. Because Ms. Jackson gave conflicting versions of signing the form, the trial court could have disbelieved her claim that she signed a blank form. The presence in the record of suspect consent forms from years before and about which nothing is known does not establish a practice by Conway of having patients sign blank consent forms at admission nor does it call into question the validity of the fully executed consent form in this instance. Thus, we find no merit to Ms. Jackson's claim that she signed a blank form.
Ms. Jackson also claims there are other problems with the consent form that establish lack of informed consent. She claims that she did not consent to removal of her uterus and ovaries. She notes the appearance of the names of both Dr. Kleinpeter and Dr. Swiger on the form, the lack of explanation as to the meaning of "if indicated" used in reference to removal of her uterus and ovaries, the lack of any mention of menopause on the form, and the change in treatment plan from Lupron injections to immediate surgery as grounds for finding a lack of informed consent. We will review the relevant testimony to address these complaints.
Ms. Jackson denied any conversations with her physicians prior to surgery about the risks involved or the procedures to be done. At her deposition, a copy of which was admitted into evidence, she recalled meeting with three doctors, one an older man and two younger men, about a week before surgery at which time they talked about giving her Lupron prior to performing surgery but then told her that they wanted to go ahead with surgery to remove the fibroid tumor and unblock her tubes. She recounted being told that the fibroid tumor might be enlarged, pressing against her uterus, and closing her fallopian tubes. Ms. Jackson denied that any doctors told her prior to surgery that they might have to do a hysterectomy or remove her ovaries. She testified that she did not even know what a hysterectomy was until it was explained to her when she was finally told what surgery had been done at a follow-up visit on February 21, 1995.
Dr. Bowling, Ms. Jackson's expert, was critical of Conway's efforts to obtain consent for the surgery and believed that Ms. Jackson did not fully understand the procedure and risks. She found the consent form
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