Susan Lucas v. Ochsner Clinic Foundation, Ochsner Medical Center-Westbank, L.L.C.

SUSAN LUCAS, ET AL. * NO. 2024-C-0628

VERSUS *
COURT OF APPEAL
OCHSNER CLINIC *
FOUNDATION, OCHSNER FOURTH CIRCUIT
MEDICAL CENTER- *
WESTBANK, L.L.C., ET AL. STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 17-415, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Dale
N. Atkins)

Atkins, J., concurs in the result.

Kara Hadican Samuels
Jennifer L. Thornton
4004 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF / RELATORS,

Don S. McKinney
William K. Wright IV
701 Poydras Street, Suite 4500
New Orleans, LA 70139

COUNSEL FOR RESPONDENTS, OCHSNER CLINIC
FOUNDATION AND JOHN SPERA, C.R.N.A.

WRIT GRANTED, RELIEF GRANTED
October 10, 2024

RLB The relator in this writ application seeks review of the trial court’s denial of

DLD a motion in limine that would have excluded any mention of informed consent in

this medical malpractice case.

Fact summary

Dorothy Caserta (“Caserta”), the decedent in this wrongful death and

survival action case was suffering from aortoiliac occlusive disease1. She elected

to have aortic reconstruction surgery as a treatment for this condition. The surgery

was to be performed at Ochsner Westbank Medical Center on July 17, 2013. In

anticipation of the surgery, Caserta signed consent forms that acknowledged

certain risks of the proposed surgery and authorized the medical providers to

proceed with that knowledge. The consent forms are part of Caserta’s medical

records. Neither the consent to the surgery nor the acknowledgment of the risks is

contested by Plaintiffs’ claim.

The surgery proceeded on the date planned. Caserta was given general

anesthesia by the routine insertion of a nasogastric tube (“NG tube”). During the

course of the surgery, the surgeon discovered that the NG tube had made a 6

1 Aortoiliac occlusive disease is a type of peripheral artery disease that occurs when the aorta or

iliac arteries become blocked or narrowed. This blockage can be caused by a buildup of plaque
in the walls of the blood vessels.

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centimeter tear in Caserta’s esophagus. The surgeon immediately repaired the

trachea.2 However, due to blood loss and other complications, Caserta died in the

hospital on August 15, 2013.

Trial court proceedings

Plaintiffs are Caserta’s surviving adult children and one grandchild. The

only defendants remaining in the suit are the hospital where the surgery was

initiated and the Certified Registered Nurse Anesthetist who inserted the NG tube.

Plaintiffs filed their motion in limine seeking to exclude all evidence relating

to informed consent. Essentially, Plaintiffs argue that they have not put informed

consent at issue in this litigation. Therefore, they contend, any testimony or

documents directed to that issue is of no relevance. Further, Plaintiffs add, even if

informed consent has any relevance to this action, the balance required by La. C.E.

art. 403 demands its exclusion because of the high probability of prejudice.

Defendants contend that the informed consent documents are part of

Caserta’s certified medical records and are therefore admissible. For their part,

Defendants do not believe that the evidence in question raises any great risk of

undue prejudice.

The trial court accepted the defendants’ arguments in orally issued reasons

and denied the motion in limine. Because of the limited amount of time until the

trial date, Plaintiffs have requested and received expedited review of their writ

application.

2 The injury to the trachea caused the surgeon to cancel the aortic reconstruction for which

Caserta was hospitalized.

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Legal analysis

The issue raised in this application is part of a relatively new body of law in

our state. So far, there is no broad ruling from the Louisiana Supreme Court that

directs us to exclude evidence of informed consent in a medical malpractice case

when informed consent is not part of the claim presented.

A review of the application must begin with the basic rules of relevance and

admissibility. Relevant evidence is any evidence tending to make the existence of

a fact consequential to the determination of the action more or less probable than it

would be without the evidence. La. C.E. art. 401. As a general rule, all relevant

evidence is admissible. La. C.E. art. 402. This general rule, however, is tempered

by La. C.E. art. 403, which holds that, “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time.”

In Matranga v. Parish Anesthesia of Jefferson, L.L.C., 2014-448 (La.

App. 5 Cir. 5/14/15); 170 So. 3d 1077, the trial court permitted the introduction of

documents granting consent for treatment. In a fact situation remarkably similar to

the one now before us, the patient / decedent died as a result of a rupture of the

trachea during insertion of an NG tube. The court noted that, at trial, “The

defendants repeatedly highlighted the dangers inherent in Ms. Greathouse’s

planned surgery…and equated those risks to the risks of her intubation. This link

could easily lead to the conclusion that Ms. Greathouse acquiesced to her

injury and subsequent death.” Id. at 1092. The Matranga court ultimately

determined that introduction of the informed consent evidence most likely caused

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confusion to the jury. As a result, the court reversed the jury decision and

remanded the case for a new trial.

In Patten v. Gayle, 46,453 (La. App. 2 Cir. 6/22/11); 69 So. 3d 1180, the

court also found jury confusion as a result of introduction of irrelevant consent

forms and testimony. The court wrote, “A risk of bowel injury was among the

risks listed on the consent forms signed by Mrs. Patten. … Being injured as a result

of negligence by one’s physician is not a reasonably foreseeable risk of receiving

medical treatment.” Id. at 1187. In testimony, the defendant surgeon testified that

he had, in fact, caused injury to his patient when he pierced a portion of her small

bowel. The court concluded that the jury’s finding that the surgeon’s negligence

caused no injury to Mrs. Patten was manifestly erroneous and conducted a de novo

review of the facts of the case. After its review of the record, the Patten court

concluded that a later, second perforation of the patient’s bowel was not caused by

the surgeon. The appellate court found for the defendant just as the jury did but for

reasons that may have been completely different. Based on the procedural path

taken by the case, one can never determine whether the jury would have reached

the same verdict if informed consent evidence had been excluded.

In Matranga and Patten, the common thread is jury confusion. In one case,

the court found the confusion necessitated a new trial; in the other, the court

undertook a review of the facts itself. In both cases, a jury decision without the

confusion and possible prejudice caused by informed consent evidence would have

been preferable to the ultimate outcomes. Logic and La. C.E. art. 403 dictate that

such evidence should be excluded because its probative value is substantially

outweighed by the danger of unfair prejudice, confusion and often results in a

waste of time.

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The Louisiana Supreme Court has not issued a full opinion on this subject,

but in French v. Quality Nighthawk Teleradiology Group, Inc., 2023-1534 (La.

11/30/23); 373 So. 3d 690, the court issued a per curiam in which it approved a

trial court decision that granted a motion in limine that excluded informed consent

evidence when it was not relevant to the claim made. The Supreme Court’s per

curiam reversed a decision by our court that overturned the trial court’s order in

limine.

A review of our statutory guidance and the decisions of other appellate

courts of our state, shows that judicial efficiency and fundamental fairness supports

the adoption of a general rule that evidence of informed consent should not be

allowed at a trial on the merits unless a claim necessarily raises it as a question to

be determined by the trier of fact. In the case before us, there is no showing that

evidence of informed consent is relevant to the issue of negligence that the trier of

fact must decide. Therefore, we grant the writ requested and remand the case to

the trial court with instructions to issue an order in limine consistent with this

opinion.

WRIT GRANTED, RELIEF GRANTED.

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