Bourgeois v. McDonald

• Decision Date: 27 May 1993
• Docket Number: No. 92-CA-2361,92-CA-2361
• Citation: Bourgeois v. McDonald, 622 So.2d 684 (La. App. 1993)
• Parties: Nancy M. BOURGEOIS, v. Marguerite B. McDONALD, M.D., Enrique Suarez, M.D., and the State of Louisiana through the Louisiana State University Medical Center.
• Court: Court of Appeal of Louisiana

Page 684

622 So.2d 684

Nancy M. BOURGEOIS, v. Marguerite B. McDONALD, M.D., Enrique Suarez, M.D., and the State of Louisiana through the Louisiana State University Medical Center.

No. 92-CA-2361.

Court of Appeal of Louisiana Fourth Circuit.

May 27, 1993.

Rehearing Denied Sept. 15, 1993.

Lawrence S. Kullman, Pierre G. Walker, III, Lewis & Kullman, New Orleans, for appellee.

Richard P. Ieyoub, Atty. Gen., Robert S. Leake, Asst. Atty. Gen., Baton Rouge, for appellant.

Before KLEES, BYRNES and WALTZER, JJ.

BYRNES, Judge.

Plaintiff-Appellee, Mrs. Bourgeois, underwent surgery in 1980 to remove cataracts. Thereafter she had to wear "thick" spectacles to correct her vision. Though the glasses were not attractive and produced distortion of peripheral vision, they provided good central vision and allowed Mrs. Bourgeois to lead a normal life.

She tried unsuccessfully in the years immediately following her cataract surgery to replace the "thick" glasses with contacts.

On January 4, 1984, Mrs. Bourgeois met with the defendant-appellant, Dr. Marguerite McDonald, to discuss a new procedure known as epikeratophakia by which a so-called "living lens", or epi lens, is sewn onto the cornea of the patient to improve vision, thereby eliminating the problem Mrs. Bourgeois was having keeping contacts in place.

Dr. McDonald told Mrs. Bourgeois that she was not a candidate for epikeratophakia. Dr. McDonald advised her that she should have two operations to place a plastic intraocular lens (IOL) in each eye, substituting for the lenses that had been removed in the cataract surgeries.

It was Mrs. Bourgeois' understanding that she was to have one eye operation, go home, and if that surgery went well, she would return after a period of time to have the other eye operation. Mrs. Bourgeois testified without contradiction that she is a widow with no family to turn to and that it would be very difficult for her to take care of herself if both eyes were incapacitated by simultaneous operations.

On January 24, 1984 surgery was performed by Dr. McDonald on Mrs. Bourgeois to insert an intraocular lens in the left eye.

In connection with that surgery Mrs. Bourgeois signed only a general consent form. The only risks described were contained in the following pre-printed boiler plate form which on its face bears little relationship to the surgery to which Mrs. Bourgeois was consenting:

Some risks known to be associated with this procedure, including anesthesia, are death, brain damage, quadriplegia (paralysis of all arms and legs), paraplegia (paralysis of both legs), loss of organ, loss of arm or leg, loss of function of organ, loss of function of an arm or leg, and disfiguring scars.

No mention is made of eyes or visual impairments. This non-case specific boiler plate form is virtually identical to that found to be inadequate in Hondroulis v. Schumacher, 546 So.2d 466 (La.1989). It is not sufficient to qualify for the presumption of consent provided by LSA-R.S. 40:1299.40. There can be no presumption of consent where the consent form makes no mention of the risk at issue.

The day after the first operation Dr. McDonald came to Mrs. Bourgeois' hospital room and, contrary to previous discussions, told her that on the following day she intended to perform the "epi" on the right eye.

Mrs. Bourgeois protested that she did not wish to have the second operation so soon after the first. However, Dr. McDonald convinced her that she should proceed with the operation promptly, and that her convalescence would be brief. In connection with the second operation Mrs. Bourgeois signed two consent forms. She testified that she could not see what she was signing because of her surgery on the previous day. One was on the same pre-printed form Mrs. Bourgeois had signed in connection with the first operation. The other was more specific. That form contained the following relevant language:

I understand and the physicians have explained to me, that the visual correction of my aphakia with glasses, intraocular lenses or contact lenses would not be satisfactory. Cataract glasses produce disabling distortions, intraocular lenses have a significant incidence of complications and contact lenses cannot be used by everybody. I understand that I am being asked to enter into a study evaluating a new surgical method for correcting my vision.

* * * * * *

I am aware that the correction obtained may not be perfect, and that an additional correction with glasses may be needed. I also understand that the possibility exists that the donor cornea may have to be removed if a significant distortion in vision is produced, but the top layer of my cornea will regrow.

As this form also fails to address the risk of virtual blindness which befell Mrs. Bourgeois, it also fails to qualify for the presumption of consent provided by LSA-R.S. 40:1299.40.

After the operations Mrs. Bourgeois was legally blind. She never recovered vision in her left eye.

Because of complications with the epi, Dr. McDonald performed additional surgeries on Mrs. Bourgeois' right eye on April 6, 1984 and May 17, 1984.

After eleven months of unsatisfactory results Mrs. Bourgeois went to Dr. McDonald in December of 1984 seeking help because she still could not see. Mrs. Bourgeois testified that Dr. McDonald told her that only a psychiatrist could give her vision, i.e., her problems were psychosomatic. Dr. McDonald did not offer to remove the epi from the right eye and never again saw or communicated with Mrs. Bourgeois.

In 1986 Dr. Azar changed the IOL in Mrs. Bourgeois' left eye to one that was more flexible. Although her vision did not improve, the pain she had experienced in the left eye was eliminated.

On July 13, 1991, Dr. Miles Friedlander removed the epi lens from Mrs. Bourgeois' right eye. One month later he implanted an intraocular lens in the right eye based on newer technology which was unavailable at the time Dr. McDonald operated and thereby restored her vision to a satisfactory level. Thereafter Mrs. Bourgeois was able to resume normal activities.

Mrs. Bourgeois filed suit against Dr. McDonald, Dr. Enrique Suarez, and the State of Louisiana through the Louisiana State University Medical Center, contending that the physicians had deviated from the proper standard of care in performing elective bilateral eye surgeries only two days apart and that they had not obtained her informed consent to do the procedures. Dr. Suarez was ultimately dismissed from the proceedings. At trial, the jury found no fault in the operations performed by Dr. McDonald. ¹ The jury did find that defendants failed to properly inform the plaintiff of the risks of the operations and awarded damages. The defendants appealed from this judgment, and the plaintiff answered the appeal on the issue of the damages awarded.

The Failure To Include The "Objective Standard Of Causation"

In A Jury Interrogatory Was Not Error

In Hondroulis v. Schumacher, 546 So.2d 466, 470 (La.1989) the court established an "objective standard of causation":

"Because of the likelihood of a patient's bias in testifying in hindsight on this hypothetical matter, this court and others have adopted an objective standard of causation: whether a reasonable patient in plaintiff's position would have consented to the treatment or procedure had the material information or risks been disclosed. (Emphasis added)

The Court's instructions on the question of consent were lengthy and thorough. As may be seen by reference to the following excerpts from the instructions to the jury the court made reference to the reasonable person/patient standard at least seven times:

... [T]he responsibility to inform the patient of the dangers present in proposed treatment and the disclosure of any material consequences which could influence the decision of a reasonable person in the patient's condition to decide whether to consent to an operation or not.

* * * * * *

A physician's failure to disclose a possible danger is not a breach of duty on her part in the absence of a showing that a reasonable person's consent would have been withheld if she had been informed of the danger.

* * * * * *

Under our law, a risk is material when a reasonable person in what the physician knows or should know to be the patient's position would be likely to attach significance ot the risk or cluster of risks in deciding whether or not to forego the proposed treatment or operation.

* * * * * *

Whether a reasonable person in the patient's position probably would attach significance ot the specific risk is a question of fact that you must decide from the evidence.

* * * * * *

Louisiana law provides that if a patient is proved to have signed a consent form, then that patient is presumed to have understood and consented to encounter such risks set forth in the consent form and the patient can only disprove this presumption by showing that her consent was induced by misrepresentation or inadequate disclosure.

A physician's duty to disclose material information, including reasonable alternative therapy, must be communicated in terms that a reasonable doctor would believe a reasonable patient in Mrs. Bourgeois' position would understand. Technical language should not be used to inform an untutored lay person and in order for a reasonable patient to have awareness of a risk.

* * * * * *

If you find from a preponderance of the evidence that Dr. McDonald did not properly obtain Mrs. Bourgeois' informed consent to one or both of the procedures performed in January of 1984, that there was a causal relationship between the Doctor's failure to disclose material information and the alleged harm suffered by the plaintiff and that a reasonable patient in the plaintiff's position would not have consented to the treatment or procedure had the material information and risk been disclosed, then you may hold Dr. McDonald responsible for whatever damages Mrs. Bourgeois suffered from that risk. (Emphasis...