What do the forms patients must sign before surgery mean?

Snider v. Louisiana Medical Mutual Insurance Company, 13-0579, (La. 12/10/13) 130 So.3d 922.

A medical review panel decided that the defendant physician did not comply with the appropriate standard of care and that this conduct was a factor in causing "minor damage." The case was then tried to a jury, which disagreed with the panel's opinion and rendered a verdict for Dr. Yue.

Mr. Snider appealed and urged a number of assignments of error, including an independent assignment concerning the failure to obtain informed consent. The Third Circuit reversed the jury's verdict, basing its opinion — and discussion — only on this assignment of error, referencing no others: The physician failed to properly obtain informed consent. Despite Mr. Snider's having signed the consent form, the court decided the consent was not informed, as it related to implanting a pacemaker. It would have been reasonable for a patient to withhold consent for the placement of a pacemaker if adequately informed that there was a low-risk alternative of doing nothing, given the non-emergent nature of his condition.

The issues of liability and damages had been bifurcated. The appellate court remanded to the district court to decide the issue of damages, but the Supreme Court granted certiorari. The Supreme Court's opinion contains an extensive discussion of the Uniform Consent Law, La. R.S. 40:1299.40. The pacemaker procedure requires specific disclosures pursuant to 48 La. Admin. Code §2349.

Some lines on Mr. Snider's form, where remarks about his particular situation should have been listed, were left blank. Information listing reasonable alternatives and the risks of those alternatives should have been explained on other lines, which were otherwise left blank, except for the following: "SYMPTOMS FROM THE ABNORMAL HEARTRATE WILL CONTINUE."

Dr. Yue testified that he had provided and explained to Mr. Snider the required information and had answered all of his questions. The consent form signed by Mr. Snider did not state, and there was no evidence other than Dr. Yue's own testimony to prove that the explained consent was being obtained pursuant to the lists formulated by the Louisiana Medical Disclosure Panel concerning risks and options. Absent this evidence, in order for Dr. Yue to be covered by that subsection (La. R.S. 40: 1299.40)(E)(7)(c)(iv), the health care provider who will actually perform the procedure must advise the patient that he has obtained consent "pursuant to the lists formulated by the" disclosure panel.

The first paragraph of the consent form stated the risks required to be disclosed were "as defined by the Louisiana Medical Disclosure Panel or as determined by" the physician. The consent form did not list the risks identified by the panel but instead listed the risks as those "identified by the physician."

Certain information required for compliance with §40(E) was omitted, thus requiring the jury to be instructed pursuant to paragraph (E)(7)(a)(ii) that there was a rebuttable presumption the surgeon was negligent in his duty of full disclosure:

Instead, the district court judge instructed the jury that in a medical malpractice suit against a doctor 'a signed, written consent form provides a rebuttable presumption of valid consent.'

The Court then wrote: ". . .presumably, the district court judge did not conclude that Subsection (E) compliance was an issue in this case"; thus, the appellate court's ruling that the failure of Dr. Yue to comply with all of the requirements of (E) was an error of law was itself an error because consent could have been obtained by Dr. Yue's having complied with Subsections (E),(A), or (C). The Court reasoned there was ample evidence for the jury to decide that the written consent, combined with the verbal information Dr. Yue said he gave his patient, equated to valid informed consent.

The court also wrote that the jury instructions given by the district court judge were more in line with the requirements of Subsections (A) or (C), which require the physician to advise the patient of the nature, purpose, and known risks associated with the procedure. As a result of this interpretation, the Supreme Court then concluded that the de novo standard of review used by the appellate court was inappropriate, and the "manifest error" standard should have been used. As result of that conclusion, the Court ruled that rather than being allowed to substitute its own opinion in place of the fact-finder's under a de novo review, the manifest error rule compelled the appellate court, before it could reverse, to find instead that there is no factual basis for the judgment of the trial court and that the record established the finding was clearly wrong/manifestly erroneous, i.e., was it reasonable? Rosell v. Esco, 549 So.2d 840,844 (La. 1989); Stobart v. State, Department of Transportation and Development, 612 So.2d 880,882(La.1993).

The Court observed there was conflicting testimony on every assignment, of error argued by the plaintiff. When the fact-finder's determination is based on the credibility of one or more witnesses versus another witness or witnesses (including expert witnesses), the trial court's finding "can virtually never be manifestly erroneous." Bellard v. American Central Ins. Co., 2007-1335 (La. 4/18/08), 980 So.2d 654,672.

The case was remanded to the appellate court with instructions to consider and rule upon all of the plaintiff's assignments of error.

-Robert J. David