Maria R. Ganoza v. James M. Laborde, M.D. and Interim Lsu Public Hospital F/K/A Medical Center of Louisiana at New Orleans

MARIA R. GANOZA * NO. 2023-CA-0392

VERSUS *
COURT OF APPEAL
JAMES M. LABORDE, M.D. *
AND INTERIM LSU PUBLIC FOURTH CIRCUIT
HOSPITAL F/K/A MEDICAL *
CENTER OF LOUISIANA AT STATE OF LOUISIANA
NEW ORLEANS *******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-10418, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Rosemary Ledet
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Rosemary Ledet)

J. Alexander Watkins
ATTORNEY AT LAW
39 Newcomb Blvd.
New Orleans, LA 70118

COUNSEL FOR PLAINTIFF/APPELLEE

Jeff Landry, ATTORNEY GENERAL
Phyllis E. Glazer, ASSISTANT ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
1885 North Third Street, 3rd Floor
Baton Rouge, LA 70802

Renee C. McKay, ASSISTANT ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
1450 Poydras Street, Suite 900
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLANTS

APPEAL CONVERTED TO SUPERVISORY WRIT; WRIT
GRANTED; RELIEF DENIED
December 5, 2023

RML
This is a medical malpractice case. Plaintiff—Maria Ganoza—asserts an
DLD
informed consent claim against Defendants—State of Louisiana, through the
JCL
Board of Supervisors of Louisiana State University and Agricultural and

Mechanical College, on behalf of LSU Health Sciences Center, LSU Health Care

Services Division, Interim LSU Public Hospital; and James M. Laborde, M.D.

(collectively “Dr. Laborde”).1 From the trial court’s judgment denying his partial

summary judgment motion on the informed consent claim, Dr. Laborde appeals.

For the reasons that follow, we convert Dr. Laborde’s appeal to a supervisory writ,

grant his writ, but deny his request for relief.

FACTUAL AND PROCEDURAL BACKGROUND

After treating with a podiatrist for a bilateral bunions ailment, Ms. Ganoza

was referred to Dr. Laborde—an orthopedic surgeon at Interim LSU Public

Hospital, in New Orleans, Louisiana—for bunions surgery.2 On April 4, 2011, Ms.
1 The correct defendant to name in a suit against the State arising from the Interim LSU Public

Hospital is “the State of Louisiana, through the Board of Supervisors of Louisiana State
University and Agricultural and Mechanical College, on behalf of the Interim LSU Public
Hospital.” Hankton v. State, 20-00462, p. 2 (La. 12/1/20), 315 So.3d 1278, 1281.
2 As Dr. Laborde points out in his appellant brief, “[a] bunion is deformity of the bones, which

causes inflammation of the joint at the base of the big toe or at the base of the little toe. Bunion
surgery is done to reduce pain and correct the misalignment or deformity of the foot bones.
https://orthoinfo.aaos.org/en/diseases - conditions/bunions/ (last visited 8/9/2023).”

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Ganoza first presented to Dr. Laborde for a pre-operative clinic visit. After

examining Ms. Ganoza, Dr. Laborde determined that she suffered not only from

bilateral bunions, but also from other ailments—painful calluses and lower

extremity tight tendons. Dr. Laborde further determined that the appropriate

treatment for Ms. Ganoza’s ailments included a bilateral bunionectomy and a

tendon lengthening procedure.

At the same pre-operative clinic visit, Ms. Ganoza read and signed a consent

form for the recommended surgical treatment. On the consent form, the surgical

treatment was described as a bilateral bunionectomy with tendon lengthening

calves and possible toes. Ms. Ganoza’s condition was described as bunions,

calluses and tight tendons bilateral. The purpose of the surgical treatment was

described as improving alignment and pain. But the section of the consent form

entitled “reasonable therapeutic alternatives and the risk association with such

alternatives” was left blank.

About a week after Ms. Ganoza’s pre-operative clinic visit, Dr. Laborde

performed the surgery. According to Dr. Laborde, the surgery was without

incident. According to Ms. Ganoza, she suffered from numerous complications

following the surgery.

One year after the surgery, in April 2012, Ms. Ganoza filed a medical review

panel (“MRP”) complaint, with the Louisiana Division of Administration, pursuant

to the Malpractice Liability for State Services Act (“MLSSA”), La. R.S. 40:1237.1,

et seq.,3 against Dr. Laborde. In her MRP complaint, Ms. Ganoza asserted claims

of medical malpractice associated with the surgical procedures that Dr. Laborde

3 The MLSSA, La. R.S. 40:1237.1, et seq., applies here given this suit involves state defendants.

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performed on her in April 2011. She averred that Dr. Laborde originally was

authorized to treat only the bunions on her toes, but he chose instead during the

procedure to sever her Achilles tendons in unnecessary surgery. Such unnecessary

surgery, she averred, was performed to gain experimental data for a future

publication on tendon-lengthening surgeries.

In August 2015, the MRP, composed of three orthopedic surgeons, rendered

a unanimous opinion in Dr. Laborde’s favor; the MRP’s opinion was as follows:

1. The procedures were well described, not experimental, and based upon
the provided medical records, the procedures were warranted based
upon the operative surgeon’s physical exam.

2. Consent was adequate including tendon lengthening and bilateral
bunionectomy. Conservative methods had failed and she was referred
from podiatry for a surgical consult. It was her choice to proceed with
surgery or not.

3. An [Institutional Review Boards(“IRB”)]4 consent was not necessary
as the procedure was not experimental and there was no evidence
provided to indicate that she was a part of a study.

4. There is nothing in the record presented to the panel to review to
indicate the hospital, and/or it’s employees, deviated from the standard
of care.”

In 2015, Ms. Ganoza filed this suit, echoing the averments she made in her

MRP complaint. Simply stated, she averred that Dr. Laborde performed an

Achilles tendon lengthening surgery that was unnecessary and experimental.

Thereafter, four summary judgment motions were filed—one by Ms.

Ganoza; three by Dr. Laborde. Dr. Laborde’s first motion—a “no expert”

motion—was filed in August 2016; this motion was continued and never ruled

upon. Ms. Ganoza’s motion was for a partial summary judgment on the informed

4 An IRB is defined as “any board, committee, or other group formally designated by an

institution to review, to approve the initiation of, and to conduct periodic review of, biomedical
research involving human subjects. The primary purpose of such review is to assure the
protection of the rights and welfare of the human subjects.” 21 C.F.R. § 56.102.

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consent issue; the trial court denied her motion in August 2017. In February 2020,

Dr. Laborde filed his second summary judgment motion, seeking dismissal of all

Ms. Ganoza’s claims. This motion, like his first one, was a “no-expert” motion.

The trial court granted Dr. Laborde’s second motion in part as to the standard of

care, but denied it in part as to the informed consent claim.5

Thereafter, Dr. Laborde filed a third summary judgment motion, seeking

dismissal of Ms. Ganoza’s remaining informed consent claim and her damage

claims for lost wages, loss of earning capacity, and future medical expenses. In

response, Ms. Ganoza filed a one-page opposition memorandum. In her opposition

memorandum, she contended that Dr. Laborde’s third summary judgment was

virtually the same as his second one; and she “adopted, pled, re-alleged, and re-

averred as if copied herein in extenso” her opposition memorandum, statement of

contested facts, and exhibits that she had filed in March 2020 in response to the

second motion (the “Bulk Exhibit”). In her opposition memorandum, she further

stated that she was not making a lost wage claim or future medical costs claim;

thus, she did not oppose a partial summary judgment on those damage claims. As

5 On December 18, 2020, the trial court signed a judgment, which Ms. Ganoza’s attorney

prepared and submitted, denying Dr. Laborde’s second summary judgment motion in total.
Because of the contradiction between that judgment and the trial court’s oral ruling at the
summary judgment hearing, Dr. Laborde filed a motion seeking clarification and resolution of
the judgments. After reviewing the transcript of the summary judgment hearing at which the trial
court rendered its ruling, the motion to clarify was granted. The trial court entered a new
judgment, signed November 5, 2021, which amended the prior judgment to conform with the
actual oral ruling on the motion. It partially granted Dr. Laborde’s motion and dismissed the
breach of the standard of care claim. It also partially denied Dr. Laborde’s motion as to the
regarding informed consent claim. Ms. Ganoza sought supervisory review from this Court, and
this Court denied her writ application. Ganoza v. State of La., 21-0688 (La. App. 4 Cir.
12/20/21)(unpub.).

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indicated in her opposition memorandum,6 Ms. Ganoza, the day after she filed her

opposition memorandum, filed a hard copy of the Bulk Exhibit into the record.

In ruling on the summary judgment motion, the trial court granted Dr.

Laborde’s motion to strike the Bulk Exhibit. Based on Ms. Ganoza’s

acquiescence,7 the trial court granted a partial summary judgment dismissing three

of her damage claims. But the trial court denied the summary judgment motion as

to the informed consent claim. In so doing, the trial court provided the following

written reasons for judgment:

The allegations and facts raised by Plaintiff regarding Defendant
Labordes’ [sic] studies related to the propriety and effectiveness of
surgical Achilles tendon lengthening in relation to the timing of
Plaintiffs [sic] surgery, and the role that may have played on the
Plaintiffs [sic] ability to give her informed consent creates a genuine
issue of material fact reserved for the trier-of-fact. It is improper for this
Court to weigh the evidence and make a credibility determination when
ruling on a motion for summary judgment. As such, Defendants[’]
Motion is denied, in part, as it pertains to Plaintiff's claim for lack of
informed consent.

The trial court certified its judgment as final for purposes of immediate appeal

pursuant to La. C.C.P. art. 1915. This appeal followed.

Appellate jurisdiction

An appellate court has a duty to determine—even if the parties do not raise

the jurisdictional issue—whether it has subject matter jurisdiction to entertain an

appeal. See Moulton v. Stewart Enters., Inc., 17-0243, 17-0244, p. 3 (La. App. 4

Cir. 8/3/17), 226 So.3d 569, 571 (citation omitted). “An appellate court cannot

6 In her opposition memorandum, she stated that “[a] copy of the previously filed Memorandum

in Opposition, Statement of Contested Facts and Exhibits will be provided to the Court by email
and in paper form once the Court re-opens.”
7 Although Ms. Ganoza, in her opposition memorandum, only references two damage claims--

lost wage and future medical costs claim, it is undisputed that she acquiesced in dismissing three
damage claims-- lost wages, loss of earning capacity, and future medical expenses.

5

determine the merits of an appeal unless its subject matter jurisdiction is properly

invoked by a valid final judgment.” Id. Here, the trial court’s judgment is an “issue

summary judgment” under La. C.C.P. art. 966(E). See Chenet v. Colgate-

Palmolive Co., 22-0666, p. 11 (La. App. 4 Cir. 2/1/23), 357 So.3d 479, 488, writ

denied, 23-00309 (La. 4/25/23), 359 So.3d 978.

An “issue summary judgment” is appealable only if certified as final by the

trial court pursuant to La. C.C.P. art. 1915. Id. But an appellate court is not bound

by a trial court’s certification; an appellate court is required to make its own

determination of whether the “issue summary judgment” was certified correctly.

See S. Envtl. Mgmt. & Specialties, Inc. v. City of New Orleans, 22-0018, p. 5 (La.

App. 4 Cir. 5/11/22), 339 So.3d 1234, 1237 (observing that “[a]lthough the trial

court certified the . . . partial summary judgment as final pursuant to La. C.C.P.

art. 1915(B), that designation is not determinative of this court’s jurisdiction”).

Here, the trial court, in certifying the “issue summary judgment” as final,

failed to provide explicit reasons. Dr. Laborde contends that the trial court’s

reasons are apparent—Ms. Ganoza agreed that her claims for lost wages, loss of

earning capacity, and future medical expenses are not at issue. Likewise, in her

answer to this appeal, Ms. Ganoza described her acquiescence to entry of the

partial summary judgment as a “voluntary dismissal.” Considering Ms. Ganoza’s

agreement to dismiss these claims, Dr. Laborde contends that there is no just

reason for delaying entry of the final judgment dismissing those demands with

prejudice. For these reasons, Dr. Laborde contends that the trial court correctly

certified the partial summary judgment as final. This argument is unpersuasive.

Dr. Laborde is not questioning the part of the judgment in his favor—the

dismissal, with Ms. Ganoza’s acquiescence, of three of her damage claims. Indeed,

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a party generally cannot appeal a part of a judgment in its favor. Succession of

Foster, 240 La. 269, 275, 122 So.2d 96 (1960) (observing that “appellant is

without right to appeal from that portion of the judgment which is in her favor”);

see also La. C.C.P. art. 2085.8

The only part of the judgment that Dr. Laborde is challenging is the denial of

his summary judgment motion on the informed consent issue. A trial court’s

judgment denying a summary judgment motion, by statute, is not appealable. See

La. C.C.P. art. 968 (providing that “[a]n appeal does not lie from the court’s refusal

to render any judgment on the pleading or summary judgment”); see also LaBarre

v. Texas Brine Co., LLC, 22-1221, pp. 6-7 (La. App. 1 Cir. 4/28/23), 2023 WL

3134906 (unpub.), writ denied, 23-00748 (La. 9/26/23), 370 So.3d 479 (explaining

the interplay between La. C.C.P. art 968 and La. C.C.P. art. 1915). Given the non-

appealable nature of a ruling denying a summary judgment motion, the trial court

erred in certifying the “issue summary judgment” as a partial final judgment under

La. C.C.P. art. 1915. The judgment before us is a non-final judgment.

In previous cases, this Court has exercised its discretion to convert an appeal

of a non-final judgment into a supervisory writ application when the following two

conditions were satisfied:

(i) The motion for appeal has been filed within the thirty-day
time period allowed for the filing of an application for supervisory writs
under Rule 4-3 of the Uniform Rules, Courts of Appeal.

8 La. C.C.P. art. 2085 provides:

An appeal cannot be taken by a party who confessed judgment in the
proceedings in the trial court or who voluntarily and unconditionally acquiesced in
a judgment rendered against him. Confession of or acquiescence in part of a
divisible judgment or in a favorable part of an indivisible judgment does not
preclude an appeal as to other parts of such judgment.

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(ii) When the circumstances indicate that an immediate decision
of the issue sought to be appealed is necessary to ensure fundamental
fairness and judicial efficiency, such as where reversal of the trial
court's decision would terminate the litigation.

Lee v. Sapp, 17-0490, pp. 4-5 (La. App. 4 Cir. 12/6/17), 234 So.3d 122, 126. Both

conditions are satisfied here. We, thus, convert Dr. Laborde’s appeal to a writ.

Standard of Review and Summary Judgment Principles

Appellate courts review the grant or denial of a summary judgment motion

de novo using the identical criteria that trial courts use to determine whether

summary judgment is proper. See Planchard v. New Hotel Monteleone, LLC, 21-

00347, p. 2 (La. 12/10/21), 332 So.3d 623, 625 (citations omitted). “After an

opportunity for adequate discovery, a motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law.” La. C.C.P. art. 966(A)(3). The mover bears the burden of proof.

La. C.C.P. art. 966(D)(1). When the mover will not bear the burden of proof at

trial, the mover need not negate all essential elements of the adverse party’s claim.

Id. Rather, the mover need only point out the absence of factual support for one or

more elements of the adverse party’s claim. The burden then shifts to the adverse

party “to produce factual support sufficient to establish the existence of a genuine

issue of material fact or that the mover is not entitled to judgment as a matter of

law.” Id.

Here, the parties present two issues—one evidentiary and one substantive.

The evidentiary issue, raised in Ms. Ganoza’s answer to the appeal, is whether the

trial court erred in striking the Bulk Exhibit. The substantive issue, raised in Dr.

Laborde’s appeal, is whether the trial court erred in denying his summary judgment

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motion given Ms. Ganoza failed to meet her burden of showing there is a genuine

issue of material fact on the essential elements of her informed consent claim. We

separately address each issue.

Evidentiary Issue—Striking the Bulk Exhibit

The trial court struck the Bulk Exhibit based on Dr. Laborde’s objection. His

objection was that such a bulk attachment was improper under La. C.C.P.

art. 966(A)(4). We find Dr. Laborde’s objection unfounded. The documents

objected to—an in globo copy of a former opposition memorandum and its

attachments—were filed into the record and were documents allowed under the

law in effect at the time this summary judgment motion was filed, heard, and

decided. At all those times, La. C.C.P art. 966 (A)(4) provided that “[t]he only

documents that may be filed in support of or in opposition to the motion are

pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified

medical records, written stipulations, and admissions.” 9 The documents that were

objected to were a memorandum and the attachments thereto, which included Ms.

Ganoza’s affidavit and various depositions. The trial court, thus, erred in striking

the Bulk Exhibit.

9 The Legislature recently amended La. C.C.P. art. 966. See 2023 La. Acts No. 317, § 1 (eff.

Aug. 1, 2023), and 2023 La. Acts No. 368, § 1 (eff. Aug. 1, 2023). The amendments included the
addition of the following provision to La. C.C.P. art. 966:

(b) Any document listed in Subsubparagraph (a) of this Subparagraph
previously filed into the record of the cause may be specifically referenced and
considered in support of or in opposition to a motion for summary judgment by
listing with the motion or opposition the document by title and date of filing. The
party shall concurrently with the filing of the motion or opposition furnish to the
court and the opposing party a copy of the entire document with the pertinent part
designated and the filing information.

Because we find the Bulk Exhibit was improperly excluded under the law in effect at the time of
the summary judgment motion, we find it unnecessary to decide if the newly enacted
amendments to La. C.C.P. art. 966, even if interpretive, can be retroactively applied.

9

Genuine Issue of Material Fact on the Informed Consent Issue

A genuine issue of fact is one as to which reasonable persons could disagree.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d

730, 751 (citation omitted). If reasonable persons could reach only one conclusion,

there is no need for trial on the issue; and the granting of summary judgment is

appropriate. Id. A material fact is one that “might affect the outcome of the suit.”

Id. Whether a fact is material must be determined based on the applicable

substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir.

5/10/17), 219 So.3d 1265, 1270 (citation omitted).

The applicable substantive law here is the law governing informed consent

claims, which is both statutory and jurisprudential. Louisiana courts have

developed the following four-pronged test for establishing an informed consent

claim:

1) The existence of a material risk unknown to the patient;

2) A failure to disclose a risk on the part of the physician;

3) That the disclosure of the risk would have led a reasonable patient in
the patient's position to reject the medical procedure or choose another
course of treatment; and

4) Injury.

Brandt v. Engle, 00-3416, p. 7, n.1 (La. 6/29/01) 791 So.2d 614, 619 (citations

omitted). The Supreme Court, in Brandt, observed that for a plaintiff to establish

the elements of an informed consent claim “some” expert testimony is required.

The need for expert testimony, the Supreme Court explained, comes into play in

defining the material risks that a physician is mandated to disclose.

“[A] risk is material when a reasonable person in what the doctor knows or

should know to be the patient’s position, would be likely to attach significance to

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the risk or cluster of risks in deciding whether or not to forego the proposed

therapy.” Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La.1988) (on reh’g)

(citing LaCaze v. Collier, 434 So.2d 1039, 1045-46 (La.1983)). Louisiana courts

have developed the following two-step process for defining materiality:

The first step is to define the existence and nature of the risk and
the likelihood of its occurrence. “Some” expert testimony is necessary
to establish this aspect of materiality because only a physician or other
qualified expert is capable of judging what risk exists and the likelihood
of occurrence. The second prong of the materiality test is for the trier
of fact to decide whether the probability of that type harm is a risk
which a reasonable patient would consider in deciding on treatment.
The focus is on whether a reasonable person in the patient's position
probably would attach significance to the specific risk. This
determination of materiality does not require expert testimony.

Hondroulis, 553 So.2d at 412 (citations omitted).

“Encompassed in the definition of material risks is the concept that in order

for a patient to make an informed, intelligent decision, he [or she] must be advised

of any alternatives to the proposed procedure.” Kennedy v. St. Charles Gen. Hosp.

Auxiliary, 630 So.2d 888, 892 (La. App. 4th Cir. 1993). The requirement of

disclosing alternatives to the proposed procedure, however, is limited to feasible

alternatives. “[A]though a physician should inform a patient of alternatives that

exist to the surgical procedure, a physician has no duty to disclose alternative

treatments or procedures which are not accepted as feasible.” Reddick v. State, 21-

0197, p. 8 (La. App. 4 Cir. 9/29/21), 328 So.3d 504, 509 (internal citations and

quotations omitted).

The requirement of disclosing feasible alternative treatments—referenced in

the consent form Ms. Ganoza signed—is codified in the Louisiana informed

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consent law. 10 As we observed in Reddick, the law in effect at the time of Ms.

Ganoza’s surgery—former La. R.S. 40:1299.39.63 (now La. R.S.

40:1299.39.6(P)(3))—provided, in pertinent part, that “reasonable therapeutic

alternatives, and any associated risks, [must] be disclosed to the patient.” 21-0197,

p. 7, 328 So.3d at 509 (citing La. R.S. 40:1299.39.6(P)(3)). 11

Based on the jurisprudence, a plaintiff-patient opposing a defendant-

physician’s supported summary judgment motion on an informed consent claim is

required to produce only “some” expert testimony to address the issue of what risk

existed in the plaintiff’s case that was not disclosed and the likelihood of its

occurrence. McGrew v. Waguespack, 15-1891 (La. App. 1 Cir. 6/3/16), 2016 WL

3132149 (unpub.).

Dr. Laborde’s position is that this is a physician-supported summary

judgment motion. He points out that, in support of his summary judgment motion,

he submitted not only the presumptively valid consent form Ms. Ganoza signed,

but also the unanimous MRP opinion authored by three orthopedic surgeons.

Given this evidence, Dr. Laborde contends that he satisfied his prima facie

burden—as the summary judgment movant—of proving the sufficiency of the

consent. See Jordan v. Cmty. Care Hosp., 19-0039 (La. App. 4 Cir. 7/24/19), 276

So.3d 564. He cites Jordan for the principle that “[t]he requirement of producing

expert testimony is especially apt, when as here, the defendants have filed

summary judgment motions and supported such motions with expert opinion

10 The consent form Ms. Ganoza signed also stated that “Louisiana law requires us to tell you”

about “[r]easonable therapeutic alternatives and material risks associated with such alternatives.”
11 La. R.S. 40:1299.39.6, which was in effect at the time of Ms. Ganoza’s surgery, was re-

designated as La. R.S. 40:1157.2 effective June 2, 2015. See Reddick, 21-0197, p. 8, n.3, 328
So.3d at 509. Both the prior provision and the new one mandate disclosure of reasonable
therapeutic alternatives and risks associated with such alternatives.

12

evidence that their treatment met the applicable standard of care.” 19-0039, p. 13,

276 So.3d at 577. Because Ms. Ganoza failed to offer any expert testimony to

prove the insufficiency of the consent, Dr. Laborde contends that she failed to meet

her burden of raising a genuine issue of material fact and that summary judgment

should have been granted.

Dr. Laborde’s reliance on the Jordan case is misplaced. The Jordan case,

albeit a medical malpractice case, did not involve an informed consent claim.

“Informed consent is a claim that can be separate from a medical malpractice

claim.” Patterson v. Peterson, 19-1604, p. 7 (La. App. 1 Cir. 8/3/20), 310 So.3d

185, 190 (citing Lugenbuhl v. Dowling, 96-1575, pp. 16-17 (La. 10/10/97), 701

So.2d 447, 456). The elements required to establish an informed consent claim, as

the Supreme Court confirmed in Brandt, are different from the elements required

for a medical malpractice claim.12 Likewise, the requirement for expert testimony

to establish an informed consent claim is different; as discussed elsewhere in this

opinion, the jurisprudence has observed that only “some” expert testimony is

required to establish an informed consent claim. Hondroulis, 553 So.2d at 412

(citations omitted).

12 In Jackson v. State Through Charity Hosp. of Louisiana at New Orleans, 94-2090, p. 3 (La.

App. 4 Cir. 5/16/95), 655 So.2d 795, 796, we observed:

La.R.S. 9:2794 states, in pertinent part, that in a malpractice action based on the negligence
of a physician, the plaintiff must prove by a preponderance of the evidence:

1) the standard of medical care for the medical specialty involved;

2) that the defendant breached the standard of care; and

3) that the plaintiff suffered injuries due to the breach of the standard of care.

13

Here, as Ms. Ganoza contends, the summary judgment record in this case

contains “some” expert testimony establishing that a reasonable therapeutic

alternative existed to the tendon lengthening procedure. Dr. Laborde and the three

MRP members—all orthopedic surgeons—agreed that a reasonable therapeutic

alternative to a bilateral tendon lengthening procedure is stretching. This expert

testimony is sufficient to satisfy the first prong of the materiality test. As a result,

this reasonable therapeutic alternative was required to be disclosed.

The other relevant evidence in this case is the consent form that Ms. Ganoza

signed. As noted elsewhere in this opinion, the consent form had a section for

“reasonable therapeutic alternatives,” but that section was left blank. Nonetheless,

oral consent can be sufficient. Hence, the dispositive issue is whether Dr. Laborde

orally informed Ms. Ganoza of the reasonable therapeutic alternative of stretching.

A conflict exists between Dr. Laborde and Ms. Ganoza over what he orally

disclosed to her. Although Dr. Laborde acknowledged in his deposition that he

could not recall exactly what he told Ms. Ganoza, he testified that he routinely tells

his patients that conservative measures—including stretching—are an alternative.

Regardless, Dr. Laborde testified that he would not have been willing to perform

the bilateral bunion procedure without performing the tendon lengthening

procedure on Ms. Ganoza; he explained:

“In other words, she can either have surgery or she cannot have
surgery. That would be her alternatives—because I’m going to
recommend what I think is the best surgery. And if she doesn’t want
that, she cannot have the surgery or go somewhere else. But I’m not
going to do . . . a surgery on a patient that I don’t think is going to work
or is not the best thing for the patient.”

Dr. Laborde further testified that Ms. Ganoza always had the option—up until the

time of the surgery—of declining to have the surgery.

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In contrast, Ms. Ganoza—whose primary language was Spanish and who

was a runner (jogger) before the surgery—attested in her affidavit that Dr. Laborde

never told her that stretching was a reasonable therapeutic alternative. According

to Ms. Ganoza, Dr. Laborde was the first doctor to tell her that she had a tight

Achilles tendons; and he never discussed stretching of her tendons with her. She

further attested that Dr. Laborde never told her that he was going to surgically

lengthen her Achilles tendons. She attested that she was always under the

impression that she was only undergoing surgery to correct her bunions ailment—

the ailment that she was referred to Dr. Laborde to correct.13

In sum, the record supports two findings. First, there is expert testimony

establishing that a reasonable therapeutic alternative to the tendon lengthening

procedure existed—stretching.14 Second, there is conflicting evidence as to

whether Dr. Laborde informed Ms. Ganoza of this reasonable therapeutic

alternative. Taken together, these two findings establish that Dr. Laborde was not

entitled to summary judgment on the informed consent issue. For this reason, the

trial court did not err in denying summary judgment on the informed consent issue.

DECREE

For the foregoing reasons, Dr. Laborde’s appeal is converted to an

13 Ms. Ganoza contends that most reasonable people would not proceed with having their

Achilles tendons cut if they were informed stretching could avoid that procedure. She also
contends that a reasonable person would not consent to same if informed that the physician
suggesting that they undergo the surgery without first exhausting alternative treatment modalities
was actively researching the effectiveness of same through human subjects research endeavors.
Given our finding that the question regarding reasonably foreseeable alternatives precludes
summary judgment, we do not reach this issue.
14 Cf. Reddick, 21-0197, p. 9 (La. App. 4 Cir. 9/29/21), 328 So.3d 504, 510 (observing that “[t]he

determination of whether ultrasound observation is a reasonable therapeutic alternative is a
material fact essential to Ms. Reddick’s causes of action” and finding summary judgment
inappropriate); Cox v. Bd. of Adm'rs of Tulane Educ. Fund, 97-2350, pp. 6-9 (La. App. 4 Cir.
7/1/98), 716 So.2d 441, 445-46 (observing that “[n]o expert testimony reveals that alternatives to
the surgery existed, other than perhaps no surgery” and finding summary judgment appropriate).

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application for supervisory writ. We grant the writ but deny the requested relief.

APPEAL CONVERTED TO SUPERVISORY WRIT APPLICATION;
WRIT GRANTED; RELIEF DENIED

16