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Richard v. Colomb6/29/2005
tion of the "nature and purpose of the procedure or procedures ...." LSA-R.S. 40:1299.40A. Only then, after the patient has at least a general sense of the procedure to be performed and the purpose of the doctor's actions, can the material risks be recognized, and properly addressed and weighed by the patient. We do not read the informed consent statute as a waiver of the patient's right to be notified of the nature and purpose of a second procedure to be performed by a surgeon while the patient is under anesthesia, simply because the surgeon informed the patient of another procedure.
The focus here is not the number of stitches or the relative safety of a single stitch taken in a noticed procedure. Rather, the focus is the unnecessary quality of the stitcht; a fact that separated the stitch from the consented to operation, and established a secondary procedure. Thus, a two prong analysis is required to determine whether the procedure or technique is both (1) unrelated and (2) unnecessary. Under the unique circumstances of this case, that separate, unnecessary practice or educational procedure required additional informed consent. In the absence of notice and consent to the possibility that a second procedure may be undertaken, the doctor violated his legal duty to inform the patient. Although a general consent to educational or practice procedures may have sufficed, the patient should have been told that the surgeon may practice additional procedures or techniques on the patient's body in some manner outside the normal course of the primary, consented to operation, and outside any necessary emergency treatment. After informing the patient of the possibility of an educational procedure separate from the consented to primary operation, the doctor would then inform the patient of any material risks that may arise from the secondary educational procedure or that the procedure involved little or no risk.
Certainly, patients, including Ms. Richard, have the right to refuse a secondary practice or educational procedure not necessary to the primary operation. Specifically, when asked during the trial if she would have consented to practice surgery, Ms. Richard responded, "No, I wouldn't have.... I was scared as it was just going through the surgery. I wasn't going to, you know; take any risk of them doing anything extra." Although a no consent case may not require proof that a reasonable person would not have consented, the record here supports such a determination. See Lugenbuhl, 96-1575 at pp. 14-16 & n. 9, 701 So.2d 455-56 & n. 9. Thus, we find no error in the jury's finding that Dr. Dampeer breached his duty by performing a medical procedure upon Ms. Richard without her consent.
DAMAGES
" he doctor's breach of duty caused plaintiff to undergo a medical procedure ... for which the doctor failed to provide adequate information [,]... thereby causing damages to plaintiff's dignity privacy," and depriving her of the "opportunity of self-determination in regard to subjecting [herself] to an unwanted procedure." Lugenbuhl, 96-1575 at pp. 14-15, 701 So.2d at 455. Such damages are compensatory and appropriate. Lugenbuhl, 96-1575 at pp. 14-16, 701 So.2d at 455-56. A doctor may not patronize a patient and, without the patient's permission, mentally reserve the sole right to decide whether an unconscious patient should undergo a separate, unnecessary educational procedure. See Lugenbuhl, 96-1575 at p. 14, 701 So.2d at 455.
After considering the particular injury to this particular plaintiff, we find that $35,000.00, although at the high end of the appropriate range, is not an abuse of the trier of fact's "vast" discretion in the award of damages. Youn v. Mariti
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