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Richard v. Colomb6/29/2005
the known material risks that may arise from the noticed procedure. LSA-R.S. 40:1299.40A; see Lugenbuhl, 96-1575 at pp. 4-9, 701 So.2d at 450-53. Liability is based on the physician's breach of that duty. Lugenbuhl, 96-1575 at p. 9, 701 So.2d at 453.
The more common lack of informed consent case arises not from the failure to notify the patient of the type of procedure to be performed, but rather the failure to inform the patient of the material risks that may occur during the procedure. Material risk cases involve a slightly different inquiry than cases where the doctor undertakes a procedure without providing the patient with any information concerning the doctor's intention to perform the procedure itself. See Lugenbuhl, 96-1575 at pp. 7 & 14-15, 701 So.2d at 452 & 455. To determine the materiality of a risk, the nature of the risk and the likelihood of its occurrence are among the elements to be defined. " 'Some' expert testimony is necessary to establish this aspect of materiality ...." Lugenbuhl, 96-1575 at p. 7, 701 So.2d at 451. "On the other hand, one can hardly argue that it is not below the standard of care for a doctor or nurse to perform a medical procedure without obtaining any kind of consent." Lugenbuhl, 96-1575 at p. 8 n. 5, 701 So.2d at 452 n. 5.
To recover damages, the plaintiff, after establishing a failure to inform the patient of a procedure or the attendant material risks, must also prove causation between the doctor's failure and the claimed damages. Otherwise, the doctor's conduct, however wrongful, has no legal consequence. In material risk cases, the plaintiff must prove both that the breach of duty was a cause in fact of the damage and "that a reasonable patient in the plaintiff's position would not have consented to the treatment or procedure" because of the disclosed information. Lugenbuhl, 96-1575 at p. 12, 701 So.2d at 454.
However, in a no consent case that involves no physical damages, "the usual causation inquiry into whether a reasonable person in the patient's position would have consented if he or she had known of the risk that materialized is not applicable ...." Lugenbuhl, 96-1575 at p. 14 & n. 9, 701 So.2d 455 & n. 9.
The standard of review for factual determinations is one of manifest error. Thus, for reversal, an appellate court must find that a reasonable factual basis does not exist for the finding and that the finding was clearly wrong. Brandt v. Engle, 00-3416, p. 10 (La.6/29/01), 791 So.2d 614, 621. In reviewing a factfinder's determination that a doctor failed to obtain the patient's informed consent, the appellate court should focus on the duty of the doctor to provide material information to the patient under the circumstances of the particular case, and view the evidence in the light most favorable to the party who prevailed before the trier-of-fact. Lugenbuhl, 96-1575 at p. 11, 701 So.2d 453-54.
Although one defense expert recognized a difference between a stitch taken as part of the procedure and a stitch taken solely for educational purposes, the medical experts focused on the stitch itself as if it was part of the overall noticed operation. All the medical experts testified that a stitch was not a material risk of the operation, and that they did not believe that taking the stitch breached the standard of care. Thus, if the stitch taken had been a part of the noticed procedure, Ms. Richard may have had no basis for recovery. However, no information of any kind was provided to Ms. Richard concerning the unnecessary educational stitch taken by Dr. Dampeer.
The essential element of informed consent is knowledge. The first information provided to the patient must be notifica
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