LaCaze v. Collier

• Decision Date: 17 June 1983
• Docket Number: No. 82-C-1714,82-C-1714
• Citation: 434 So.2d 1039
• Parties: Phillip LaCAZE et ux. v. L.R. COLLIER, M.D.
• Court: Louisiana Supreme Court

Page 1039

434 So.2d 1039

Phillip LaCAZE et ux. v. L.R. COLLIER, M.D.

No. 82-C-1714.

Supreme Court of Louisiana.

June 17, 1983.

Concurring Opinion July 8, 1983.

Charles J. Yeager, Kennedy & Yeager, Alexandria, for applicant.

Frederick B. Alexius, R. Rae Swent, Provosty, Sadler & Delaunay, Alexandria, for respondent.

DIXON, Chief Justice

Doretha R. LaCaze and her husband, Phillip R. LaCaze, sued her doctor, L.R. Collier, M.D., for damages resulting from complications arising after surgery. The case was tried before a judge who dismissed the plaintiffs' claims. The Court of Appeal, 416 So.2d 619, affirmed. We granted writs of certiorari. 420 So.2d 440 (La.1982).

The scope of the case is narrow. Though plaintiffs alleged in their petition that Dr. Collier negligently caused her complications, there was inadequate proof at trial that Dr. Collier fell below the standard of care required. This point was affirmed on appeal and has not been argued before this court. Neither is there any complaint with the surgery that was performed; Dr. Collier performed the operation that both he and the patient intended him to perform--a total hysterectomy. The issue before us is whether Dr. Collier made sufficient disclosures to Mrs. LaCaze prior to performing the surgery to obtain her informed consent to the operation. ¹

The essential facts are not in dispute. Mrs. LaCaze first consulted Dr. Collier in November, 1972, complaining of abdominal pain and giving a history of chronic pelvic discomfort. Dr. Collier made an initial diagnosis of pelvic inflammatory disease (P.I.D.), a general inflammation of the tissues and organs of the pelvic area due to inflammatory bacteria. He advised Mrs. LaCaze that she needed a hysterectomy and began antibiotic therapy.

Mrs. LaCaze continued to see Dr. Collier on a somewhat regular basis for the next five years, including approximately fifteen office visits. The diagnosis remained substantially unchanged and Dr. Collier continued to recommend the hysterectomy. On May 10, 1977 Mrs. LaCaze was given a complete physical examination, with Dr. Collier noting that the uterus had markedly enlarged in size possibly resulting from a fibroid condition or endometriosis (internal menstruation). Again, a total hysterectomy was recommended.

On Saturday, June 11, 1977 Mrs. LaCaze became ill at work and fainted. That evening she called Dr. Collier to schedule the hysterectomy, figuring "if I'm not going to get any better, I might as well have the surgery." Dr. Collier told her to report to the hospital; upon admission, Mrs. LaCaze signed two separate consent forms, neither of which gave any details of the surgery or related risks. Routine tests performed on June 13 revealed no abnormal conditions. Mrs. LaCaze had no fever. Dr. Collier had not seen her between the May 10 examination and the surgery performed on June 14.

Upon opening the abdomen, Dr. Collier and his scrub nurse noticed a foul, coliform odor. Of the fifteen hundred hysterectomies that he had performed, Dr. Collier testified that in only three or four cases had he seen such severe P.I.D. The operation was completed without incident with the removal of the uterus and both of Mrs. LaCaze's ovaries and fallopian tubes.

On the second postoperative day, Mrs. LaCaze developed a low grade temperature, and on the third, vibramycin was started. Dr. Collier noted "probable wound infection" on the fifth postoperative day, and on the sixth postoperative day, clear symptoms of a serious wound infection were evident. On June 24 the wound infection was treated by removing the sutures, draining the pus, and packing the wound. The wound was left open, with the coliform odor present, until July 12, when the wound was reclosed by Dr. Collier.

Meanwhile, on the tenth postoperative day, Mrs. LaCaze began having problems with her urine; she was not able to control her discharges. The nurses provided her with pads for the bed to absorb the leakage. Whenever she stood up, the urine flowed freely.

Mrs. LaCaze was discharged from the hospital on July 15, 1977. She saw Dr. Collier in two postoperative visits, each time complaining of urinary problems which had continued following her release from the hospital. Dr. Collier became concerned that she might have developed a vesico-vaginal fistula, ² and made an appointment for her to see a urologist. Mrs. LaCaze failed to keep her third appointment with Dr. Collier, and he was unable to reach her by phone to advise her of the appointment with the urologist. In the meantime Mrs. LaCaze on her own initiative consulted Dr. St. Martin, a urologist, who diagnosed her condition as a vesico-vaginal fistula and performed surgery on August 23, 1977 which corrected the problem.

The only issue presented by appellants is whether Dr. Collier secured the informed consent of Mrs. LaCaze to the operation. Appellants rely on R.S. 40:1299.40, the Uniform Consent Law, arguing that its provisions create a duty on the part of the doctor to inform the patient of known risks included within the categories listed in the statute, in this case the loss or loss of function of an organ, and that a failure to meet this duty supports an action in negligence. Appellants also urge that the failure of Dr. Collier to meet with Mrs. LaCaze for a preoperative conference to answer questions concerning the procedures to be performed gives rise to an action in strict liability.

The Uniform Consent Law, by the preamble to Acts 1975, No. 529 ³ and by its own terms, purports to define consent to medical treatment:

"A. Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which (a) sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures, (b) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner, and (c) is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such 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.

B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.

C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases." ⁴

The defendant contends that the Uniform Consent Law (which is not one of the "Uniform" statutes) as found by the Court of Appeal, is an evidentiary rule, and not a substantive change in the law. The defendant's argument is that the statute sets out procedures which, if followed, provide the physician with a presumption that a valid consent of the patient has been obtained, but that the failure to comply with the statute does not result in a cause of action for a patient against his doctor. The contention is that the statute may provide protection for a physician, but does not provide any rights to a patient; if the doctor chooses not to make use of the statute, then the question of whether the patient has consented to the procedures performed is to be answered by the rules developed in the jurisprudence.

The development of the doctrine of informed consent has not been a simple progression evident in the cases. Rather, the doctrine has pulled concepts from various sources and at times indicated various future directions. The two most influential sources of doctrine seem to have been the courts' awareness that the question of consent to medical treatment may be more than a simple question, and the development of an affirmative duty of a physician to disclose information to his patient. ⁵

The rule is well established that a physician must obtain the patient's consent before he is legally entitled to commence treatment. ⁶ However, the courts were generally reluctant to find an absence of consent, relying instead on the rule that consent may be implied from the circumstances. ⁷ Thus, any action on the part of the patient, including silence, that was consistent with acceptance of treatment was found by the courts to be a valid consent. ⁸ More recently, the courts have begun to focus attention on the actions of the physician as well as the patient. In order for the patient's consent to be valid, the giving of the consent must be preceded by a certain degree of explanation by the physician about the proposed treatment.

The rule that a physician has a duty to make disclosures to his patient appears to have developed originally from court decisions examining the quality of the information that a physician did provide to his patient, either of his own violation or in response to patient questions. ⁹ While the physician was under no affirmative obligation of disclosure, fraudulent, deceptive, or misleading disclosures vititated the consent subsequently given. ¹⁰ Later cases relied upon the fiduciary...