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Richard v. Colomb6/29/2005
nal pleading, the amendment relates back to the date of filing of the original pleading." LSA-C.C.P. art. 1153.
Both causes of action, the claims of malpractice for (1) the lost needle and (2) the lack of informed consent, arose during the same medical transaction or occurrence, that is, the operation on Ms. Richard. See Gunter v. Plauche, 439 So.2d 437, 440-41 (La.1983). Dr. Dampeer does not dispute that he took an unnecessary stitch, during said operation, without advising Ms. Richard of the educational procedure or obtaining her consent. The needle used to take the stitch was the same needle that was lost during the operation and was the subject of the original malpractice claim. Thus, although the lack of informed consent was not specifically mentioned in the initial petition, the doctor was on "notice that judicial relief was being sought arising from that general factual situation of [Dr. Dampeer's] conduct" during the operation. Gunter, 439 So.2d at 441; see Scott, 632 So.2d at 794-95. Nor, under the particular facts herein, do we see any prejudice to Dr. Dampeer based on the filing of the consent claim years after the date of the operation and initial suit filing. See Giroir v. South Louisiana Medical Center, 475 So.2d 1040, 1044-45 (La.1985) (sufficient notice to defendant and no prejudice found). Ms. Richard did not discover the unnecessary stitch was taken until 1999. In 2000, she filed a premature amending and supplemental petition adding the informed consent claim. Subsequently, she requested a medical review panel, which found that no malpractice occurred. In the same year as the panel's decision, 2002, Ms. Richard filed a third amending and supplemental petition again adding the consent claim to her suit. Thus, Dr. Dampeer had sufficient notice of the transaction or occurrence, and time to prepare his defense.
Because the original malpractice claim was timely filed, and the amendment adding the informed consent claim related back to the date of the filing of the original suit, the informed consent claim was timely. For these reasons, we find no error in the trial court's denial of the exception of prescription.
INFORMED CONSENT
"The requirement of consent to medical treatment was initially based on the idea that a competent person has the right to make decisions regarding his or her own body." Lugenbuhl v. Dowling, 96-1575, p. 4 (La.10/10/97), 701 So.2d 447, 450. The applicable version of the Louisiana informed consent statute, Louisiana Revised Statutes 40:1299.40, provides as follows:
A. Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing 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, of 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, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. 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. (Emphasis added.)
Thus, a physician has a duty to inform the patient of (1) the nature and purpose of the procedure, and (2)
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