Hondroulis v. Schuhmacher
| Citation | 553 So.2d 398 |
| Decision Date | 12 September 1988 |
| Docket Number | No. 88-C-0600,88-C-0600 |
| Parties | Viola K. HONDROULIS v. John SCHUHMACHER, M.D. * |
| Court | Supreme Court of Louisiana |
Trevor G. Bryan, Jefferson, Bryan, Gray & Jupiter, New Orleans, for applicant.
Edward Rice, Jr., Lisa D. Newman, Adams & Reese, New Orleans, for respondent.
Does a medical consent form, which tracks the language of LSA-R.S. 40:1299.40 A., 1 have to specify all known risks of a particular surgical procedure? Absent misrepresentation of material facts, what proof is required to rebut the statutory presumption of consent which arises when a patient signs the form?
In 1975, plaintiff, Viola K. Hondroulis, had a bilateral L-5/S-1 discectomy. In May of 1981, she consulted defendant, Dr. John Schuhmacher, because of pain in her lower back radiating into her right hip and leg. On June 24, 1981, Schuhmacher performed bi-lateral laminectomies at L-5/S-1 to relieve pressure on the nerves. 2 As a result of the surgery, Hondroulis lost sphincter and bladder control and became numb in her left leg. She also has the pain in her lower back, right hip and right leg which had existed before the second surgery. Although plaintiff signed a statutory consent form, she contends that she would not have undergone the surgery if she had known of these possible consequences.
According to patient Hondroulis' deposition, she was given no verbal advice about possible complications from the surgery. 3 Hondroulis consented to a lumbar laminectomy for removal of a ruptured disc and said, in deposition, that she knew death, paralysis and loss of other bodily functions can result from surgery. Defendants moved for summary judgment on the basis of the consent form, that excerpt from her deposition, and affidavits from three doctors that Dr. Schuhmacher's care was within the standard established for neurosurgeons. 4 In answering interrogatories, plaintiff's counsel said that a medical expert had not been retained.
The medical records of Hondroulis contain the reports of three post-operative consultants. One consultant, Dr. Richard W. Levy, concluded that Viola Hondroulis has a "partially compromised urinary sphincter, and bowel sphincter secondary to the June, 1981, surgery." Dr. Levy hesitated to recommend additional surgery for fear of aggravating her condition. According to the report of another consulting doctor, Gary Glynn, Hondroulis has probably developed bilateral, multilevel radiculopathy, or disease of the nerve roots: Dr. Glynn did not give an opinion on what should be done. A third doctor, J. Gregory Kinnett, also thought the numbness and incontinence resulted from bilateral multilevel radiculopathy rather than spinal stenosis. Dr. Kinnett said Hondroulis deserves the option of surgical intervention.
The trial court held that a doctor is not required to inform a patient of all conceivable risks inherent in a surgical procedure and that Hondroulis was bound by the consent form unless she signed it because material facts were misrepresented. Summary judgment was rendered on behalf of the defendant doctor.
A five judge court of appeal panel affirmed the trial court because of jurisprudence 5 holding that a written consent tracking the language of the statute constitutes valid informed consent. Three judges on the panel concurred on the ground that the statutory language does not preclude patient evidence that he or she was not advised of known risks associated with a surgical procedure. 6 A writ was granted to review the judgment of the court of appeal. 7
The Louisiana Uniform Consent Law requires disclosure of the nature and purpose of a medical or surgical procedure, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars. 8 Thus, a competent person contemplating treatment must be advised of the known serious complications which might result. This enables the patient to make an informed decision.
The Louisiana statute states that: "... 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." The statute provides an evidentiary presumption that a patient's written consent is valid. A statutory presumption, absent language establishing that it is conclusive, is rebuttable. 9 Hence, the presumption of valid consent can be rebutted by evidence that a patient was not told of "known risks" in the enumerated categories associated with his or her medical treatment. 10
LaCaze v. Collier, 434 So.2d 1039 (La.1983) considered an oral consent to treatment. LaCaze held that a doctor was not liable for failing to advise a patient about an easily corrected, remote, (one-half of a percent) complication (a vesico-vaginal fistula) which would not have been a determinative factor in the decision of an ordinary reasonable patient. Thus, LaCaze adopted an objective test for informed consent. 11
LaCaze states that "[t]he written consent to medical treatment defined in Subsection A of R.S. 40:1299.40 does not purport to be exclusive." 12 In dicta, LaCaze says "[u]nder the statutory rule, the consequences are listed, and the physician's requirement is to disclose all known risks of the listed consequences occurring, whether or not the probability of the occurrence is remote." 13
The most frequently cited case on informed consent is Canterbury v. Spence 14 which, coincidentally, involved urinary incontinence and bowel paralysis as a result of a laminectomy. In Canterbury, plaintiff and his mother testified that the treating defendant, Dr. Spence, did not reveal the risk of paralysis from a laminectomy, making out a prima facie case that the physician had violated his duty of disclosure. The defendant doctor said that paralysis can be expected in one percent of laminectomies. Canterbury held that whether there was a duty to disclose that risk was a factual issue. In Canterbury there was no statutory presumption of adequate disclosure: therefore, the physician had the burden of rebutting the patient's evidence about a risk not disclosed. 15
The scientific nature of the risk, i.e., the probability of harm, is the first step in the analysis of informed consent. 16 This initial burden of proof can be established by the testimony of the defendant-physician, as in Canterbury, supra. 17 A high probability of harm indicates a significant risk. However, the probability of harm must be weighed against the consequences of rejecting treatment.
Canterbury notes that there is no bright line separating a significant from an insignificant risk. Disclosure has been required when there was a three percent chance of death, paralysis or other injury, 18 and when there was a one percent chance of loss of hearing. 19 Nondisclosure has been justified when there was a 1.5% chance of loss of an eye 20 and a one in 100,000 chance of death. 21 In Hartke v. McKelway, 22 the physician was held liable for failing to disclose that there were one to three chances of pregnancy in a thousand laparoscopic cauterizations.
When the probability of harm is sufficient to have influenced the treatment decision of a reasonable person in the patient's condition, the risk is a material one. 23 Material risks must be disclosed unless there is an emergency situation, 24 or complete candor would have a detrimental effect on the patient: the latter is described as the therapeutic exception. A doctor should avoid frightening a patient away from a medically necessary course of treatment. 25 Neither exception is pertinent here.
Under the statute, a physician is required to advise a patient of any material consequences which would influence the decision of a reasonable person in the patient's condition. Although the statute seems to require that all known risks in the various categories be disclosed, this would be an impractical, unrealistic, and unwieldly interpretation. An amicus curiae brief on behalf of the Louisiana State Medical Society correctly contends that the statute could not reasonably require a listing of all the potential complications which might result from any medical procedure. 26 A fair reading of the statute indicates that its enumeration of risks is merely a listing of the possible results about which disclosure must be made.
The uniform consent form signed by Hondroulis created a presumption that she had been advised of the risks connected with the proposed procedure and had given an informed consent. Plaintiff alleges that her incontinence and numbness were reasonably foreseeable material risks of which she should have been advised; and that she would have refused the surgery if she had known the risks and had been presented with safer alternatives. 27
Despite the dicta in LaCaze, a reasonable limitation on the "known" risks which must be disclosed is implied in the statute. A rare or remote risk need not be disclosed. 28 Disclosure must be made only when a risk is medically known and of a magnitude that would be material in a reasonable patient's decision to undergo treatment. 29 Hondroulis knew that paralysis and loss of bodily functions could result from her surgery and was warned of those possible consequences on the consent form. It has not been shown that greater detail was required. 30
Under LaCaze, the test is not subjective but objective: given the patient's condition, would a reasonable person have undergone the procedure if advised of the material complications? 31 The duty of disclosure only applies to reasonably foreseeable material risks. 32 LaCaze held that a .5% possibility of a correctable complication would not be a determining factor to a reasonable patient. When an undisclosed risk would have induced a reasonable person in the patient's...
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