John Maybrier v. Louisiana Medical Mutual ins.co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1508

JOHN MAYBRIER

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, ET AL.

**********
APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 68603-A
HONORABLE LARRY VIDRINE, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy and J. David Painter, Judges.

Amy, J., concurs in the result and assigns reasons.

REVERSED AND REMANDED.

R. Scott Iles
1200 W. University Avenue
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF-APPELLANT:
John Maybrier

Marc W. Judice
H.L. Tuten, III
Judice & Adley
926 Coolidge Blvd.
P.O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANTS-APPELLEES:
Dr. Gerald Murdock and LAMMICO

COOKS, Judge.

Plaintiff, John Maybrier, appeals the judgment of the trial court granting the

Defendant’s Motion for Summary Judgment and dismissing his medical malpractice

suit. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 1, 2004, John Maybrier was admitted to Savoy Medical Center

for a hemorrhoidectomy for which an informed consent form was executed. Plaintiff

alleges in his petition that in addition to the hemorrhoidectomy consented to by him,

Dr. Murdock took it upon himself to perform a colonoscopy for which no informed

consent had been given. The colonoscopy resulted in a perforated bowel requiring

additional surgery.

We note Plaintiff has at all times maintained he was not aware a colonoscopy

would be performed on the date of the surgery. Defendants have argued there were

discussions with Plaintiff regarding the possibility of a colonoscopy. The informed

consent form which Plaintiff signed on that date, lists only hemorrhoidectomy, in

typed letters, in the description of the procedure. The word colonoscopy was

handwritten on the informed consent. In any event, it is undisputed the informed

consent failed to list the known, material risks associated with a colonoscopy.

The matter was initially heard by a medical review panel. After hearing the

evidence and reviewing the submitted documents, including the patient consent form,

the panel issued unanimous findings concluding that Dr. Murdock did not deviate

from the standard of care. The panel determined that, despite the complications, Dr.

Murdock’s care and procedures were appropriate and met the applicable standards of

care. Although counsel for Plaintiff maintained in a position paper to the panel that

the issue of consent was the “focus” of Plaintiff’s case, the panel did not address the

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issue of consent in its findings.

Plaintiff subsequently filed a timely petition for damages based on the lack of

informed consent for the colonoscopy procedure against Dr. Murdock and his insurer,

Lousiana Medical Mutual Insurance Company (LAMMICO). Defendants filed a

motion for summary judgment. The trial court denied the motion, noting Dr. Paul

Breaux, a member of the medical review panel, testified by deposition that the form

signed by Plaintiff failed to meet the applicable standard of care for securing

informed consent.

Subsequently, Defendants deposed Plaintiff, wherein Plaintiff acknowledged

even if he was aware of the risks of a perforated colon as a result of a colonoscopy,

he still likely would have had the colonoscopy performed, but with a

specialist/gastroenterologist rather than a general surgeon. Defendants again filed a

motion for summary judgment, contending that Louisiana jurisprudence holds if a

patient admits he would have agreed to allow another physician to perform the

medical procedure in question, despite any potential risks, there is no claim for lack

of informed consent. Plaintiff disputed this contention, noting he testified he would

have only allowed a gastroenterologist, which Dr. Murdock was not, to perform the

procedure.

The trial court granted the motion for summary judgment, issuing the following

written reasons:

In the instant motion, defendants allege that in the deposition of
plaintiff, Mr. Maybrier, he testified that had he been informed of all the
risks of the Colonoscopy he would have opted to have it done by a
Gastroenterologist.

In support of its motion defendants cite the case of Livings v.
Lanasa, 552 So.2d 1281 (La.App. 5th Cir. 1989) which reflects a similar
set of circumstances which are present in the instant case.

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After reading all of the pleadings, memos and arguments of
counsel, this Court finds that Livings v. Lanasa, cited supra, holds water
and requires that this Court grant defendants Motion for Summary
Judgment.

Plaintiff appeals, asserting the trial court erred in granting the motion for summary

judgment.

ANALYSIS

It is well-settled that “[a]ppellate courts review summary judgments de novo

under the same criteria that govern the district court's consideration of whether

summary judgment is appropriate.” Reynolds v. Select Properties, Ltd., 93-1480 (La.

4/11/94), 634 So.2d 1180, 1183; Leger v. Louisiana Med. Mut. Ins. Co., 98-1098

(La.App. 3 Cir. 3/31/99), 732 So.2d 654, 657, writ denied, 99-1253 (La. 6/18/99),

745 So.2d 30. The burden of persuasion remains always with the movant.

According to La.R.S. 9:2794(A), the plaintiff bears the burden of establishing

a breach of the standard of care in a medical malpractice case. The burden is three

pronged. He must first prove the degree of knowledge or skill possessed or the

degree of care ordinarily exercised by physicians licensed in Louisiana and actively

practicing in a similar community or locale and under similar circumstances. Still in

connection with the first prong, he must also show the location where the defendant

practices in a particular specialty and where the alleged acts of negligence raise issues

peculiar to that specialty, then prove the degree of care ordinarily practiced by

physicians within that specialty. The second prong requires the plaintiff to prove that

the defendant either lacked this degree of knowledge or skill or failed to use

reasonable care and diligence along with his best judgment in the application of that

skill. Third, causation must be proven, namely, that as a proximate result of this lack

of knowledge or skill or the failure to exercise this degree of care, plaintiff suffered

injuries that he would not have otherwise suffered.

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As in a case alleging breach of the medical standard of care, the plaintiff in an

informed consent case bears the burden of proof. He must show: (1) the existence

of a material risk which the physician must disclose; (2) the failure of the physician

to inform the patient of a material risk; (3) the realization of the material risk; and (4)

a causal connection between the failure to inform the patient of the risk and

realization of the risk. Hondroulis v. Schuhmacher, 612 So.2d 859 (La.App. 4

Cir.1992) (citing Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988)); Leger, 732

So.2d 654; Ardoin v. Murdock, 97-1468 (La.App. 3 Cir. 4/15/98), 711 So.2d 837,

writ denied, 98-1362 (La. 7/2/98), 724 So.2d 734; Guidry v. Neu, 97-810 (La.App.

3 Cir. 12/10/97), 708 So.2d 740.

The record before us establishes when Plaintiff consulted with Dr. Murdock

on November 7, 2004, his chief complaint was hemorrhoids. Dr. Murdock’s

notations for that visit read: “Went to ER sat at Savoy for hemorrhoids. 8 to 9 years

with hemorrhoids (illegible) - painful - exam in 2 plus - Diagnosis: Hemorrhoids -

recommendation: Hemorrhoidectomy (illegible).” After discussing his treatment

options, Plaintiff agreed to undergo the hemorrhoidectomy. He presented on

December 1, 2004 at Savoy Medical Center for the hemorrhoidectomy. He was given

an informed consent for the hemorrhoidectomy, which he signed. The copy of the

informed consent in the record also shows the word colonoscopy was handwritten

next to the typed word “hemorrhoidectomy.” Plaintiff denied any consent was ever

given for the performance of a colonoscopy on that date. The procedure was

successfully completed; however, Dr. Murdock determined that Plaintiff had an

asymptomatic colon. Dr. Murdock, knowing that Plaintiff had a family history of

colon cancer, believed he might benefit from a colonoscopy. While doing so Dr.

Murdock perforated the bowel, which required additional surgery and this lawsuit.

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It is clear from the record, that the informed consent which Plaintiff read and

signed on the morning of his surgery did not list material risks pertinent to a

colonoscopy. Dr. Paul Breaux, a member of the medical review panel, specifically

concluded in his deposition that the consent form failed to meet the applicable

standard of care for informed consent. The trial court agreed and denied Defendants’

first motion for summary judgment on this issue. Although Defendants spend much

space in brief arguing the informed consent form was sufficient even as it relates to

material risks associated with a colonoscopy, the record does not bear that out. In

granting Defendants’ motion for summary judgment on the issue of informed consent,

the trial court did so relying solely on the Fifth Circuit Court of Appeal decision in

Livings v. LaNasa, 552 So.2d 1281 (La.App. 5 Cir. 1989).

In Livings, the patient was suffering from blood and clots in his urine. He was

diagnosed as having a bladder tumor and a bladder operation was recommended by

Dr. LaNasa, to which the patient consented. During the course of the surgery, Dr.

LaNasa discovered that the patient actually suffered from an abnormal growth of

prostatic tissue which protruded into the bladder cavity. Therefore, instead of

performing surgery to remove a bladder tumor, a transurethral resection of the

prostate was performed. The patient filed suit alleging an unauthorized surgical

procedure was performed, and that Dr. LaNasa failed to disclose information

regarding the surgical procedure performed as well as its known risks. The patient

maintained had he been adequately informed, he would not have agreed to the

prostate surgery by Dr. LaNasa but would have chosen another physician, Dr. Green,

who twelve years earlier had successfully performed prostate surgery on him. Dr.

LaNasa filed a motion for summary judgment urging the patient’s signature on the

surgical consent form, coupled with the circumstances in the case precluded recovery.

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The trial judge agreed.

The court ruled that Dr. LaNasa had performed an authorized surgical

procedure and that it was of no moment that the growth removed was from the

prostate rather than the bladder. The court concluded Dr. LaNasa could not be held

liable for a lack of informed consent based on the patient’s assertion that he would

have chosen another physician to perform the surgery had he known that the actual

problem was the prostate. The Livings court stated as follows:

The trial judge reasoned there is “no issue of material fact as to
whether [Livings] would have declined the surgery, even assuming that
bladder incontinence was a known material risk not disclosed to him.”
He based this conclusion on Livings’ assertion he would have consented
to the surgery by Dr. Green rather than by Dr. LaNasa had he known the
actual problem was the prostate. Therefore, in retrospect Livings would
have chosen another surgeon. Furthermore, Livings does not allege any
negligence on Dr. LaNasa’s part.

In Hondroulis v. Schumacher, 546 So.2d 466, 470 (La.1989) the
Supreme Court held:

There must be a causal relationship between the
doctor’s failure to disclose material information and
material risk of damage to the patient [citations omitted].
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 the plaintiff’s position would have
consented to the treatment or procedure had the material
information and risks been disclosed. [citations omitted].

Since Livings would have consented to the surgery there is no
issue of material fact relative to his alleged lack of informed consent.

Accordingly, the motion for summary judgment was properly
granted.

Writs to the Supreme Court were not taken in Livings. We also note the Livings case

has not been cited or referenced in any other case since its release.

Although we agree the facts in Livings and the instant case are “similar,” there

are key factual distinctions. In the present case, Plaintiff specifically testified if he

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knew he was going to need a colonoscopy, he would have demanded that a

gastroenterologist (a specialist) perform the procedure. His testimony was as follows:

Q: And, so what I was – my question is: Earlier I asked you if you
would have known, or been told about possible perforated colon
as a result of the colonoscopy, you testified, “I would not have
agreed to colonoscopy”; is that correct?

A: No, sir. I would have went to a gastroenterologist.

Q: Would you – if a gastroenterologist would have told you there
still is – even with me, a gastroenterologist, performing the
procedure – there still is a risk of perforated colon?

A: If you would have – we would have spoke about it, wouldn’t we?

Q: You and the gastroenterologist?

A: Yes, sir.

Q: Okay. Let’s assume that you did.

A: I would have taken my chances with the specialist, yes, sir.

Q: Let me ask you this: Are you – and you may not know this. I
didn’t know this until I looked it up. Are you aware that seven
percent of untreated patients with a family history of colon cancer
develop cancer by age 21, and 90 percent by age 45?

A: No, sir.

Q: If you had been made aware of that fact, would you have agreed
with colonoscopy?

A: By a specialist, yes.

There is no indication in Livings that Dr. Green, who the patient would have used to

perform the prostate surgery was any more qualified or specialized in that area of

medicine than Dr. LaNasa.

We also find it significant that the procedure which Plaintiff gave his consent

for, the hemorrhoidectomy, was successfully completed by Dr. Murdock. Despite Dr.

Murdock finding that Plaintiff had an asymptomatic colon, he felt based on Plaintiff’s

family history of colon cancer that he would benefit from a colonosopy. Dr. Murdock

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then made a unilateral decision at that time to perform the procedure. It is undisputed

the colonoscopy performed by Dr. Murdock was not necessary, or even related to the

hemorrhoidectomy or any other condition discovered during the procedure which

reasonably warranted immediate medical care. The events which transpired in this

case are completely different from the emergency procedure in Livings. In Livings,

the patient was experiencing bleeding and clotting in his urine. Dr. LaNasa, who first

suspected it was a bladder tumor that was causing the symptoms, discovered that in

fact the patient’s medical problems resulted from a growth of prostatic tissue. Dr.

LaNasa when faced with a choice to continue with the surgery and remedy the

patient’s problem, or to “close him up” knowing a second surgery would be required

to stop the patient’s serious ongoing condition reasonably opted to proceed. Dr.

LaNasa specifically noted that bladder tissue is contiguous with prostate tissue, and

although the tissue grew from the prostate, it protruded into the bladder cavity. On

the other hand, the colonoscopy in this case was not essential to remedying Plaintiff’s

problem with hemorrhoids.

The informed consent doctrine is based on the principle that every adult of

sound mind has the right to determine what will be done to his or her own body.

LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient

should be told the nature of the pertinent ailment or condition, the general nature of

the proposed treatment or procedure, the risks involved, the prospects of success, the

risks of failing to undergo the treatment or procedure, and the risks of any alternative

methods of treatment. Hondroulis, 553 So.2d 398. In a case where the plaintiff

alleges there has been no consent, the law requires only proof of a material risk that

was not disclosed and the occurrence of that risk. LaCaze, 434 So.2d at 1040, n. 1.

It is undisputed in this case that perforated bowel is a material risk of a colonoscopy.

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Further, Dr. Breaux testified in his deposition that the informed consent given to

Plaintiff did not list perforated bowel as a material risk. We note as well, the law

provides a rare or unforeseeable risk of medical treatment need not be disclosed to a

patient unless a risk is medically known and of a magnitude that would be material

in a reasonable patient’s decision to undergo treatment. Hondroulis, 553 So.2d at

413. Generally, 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 the risk or cluster of risks in deciding whether or not to forego the

proposed therapy.” Hondroulis, 553 So.2d at 411-412, citing LaCaze, 434 So.2d at

1045-46. The record establishes this was not a situation where the risk of perforated

bowel associated with a colonoscopy was remote. The risk of a perforated bowel is

a common, material risk of a colonoscopy.

In Pizzalotto v. Wilson, 437 So.2d 859 (La.1983), the Louisiana Supreme Court

established the rule that a physician may not act beyond his patient’s authorization,

except when a situation seriously threatens the health or life of the patient. That

exception represented the one instance where a patient’s consent would be implied.

In Pizzalotto, the plaintiff consented to an exploratory, conservative operation to burn

adhesions which had entangled her reproductive organs. Instead the surgeon

performed a total hysterectomy. The Supreme Court found the additional procedure

improper even though the hysterectomy was reasonably necessary at the time of

surgery. Notwithstanding the fact that the plaintiff’s condition in Pizzalotto had

already rendered her sterile and that she would have to undergo a hysterectomy within

six to eight days in order to avoid danger to her health, the Court nevertheless

determined that the performance of a hysterectomy without consent constituted a

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battery.1

In the present case, the performance of the colonoscopy cannot be said to have

been an emergency procedure. Dr. Murdock had already successfully completed the

hemorrhoidectomy when he decided to perform the colonoscopy. The reason for the

colonoscopy was to reduce the possibility of colon cancer in the future. There was

no immediate threat to the health of Plaintiff that required the immediate performance

of the colonoscopy. The court in Pizzalotto found even though the patient there

would require a hysterectomy within six to eight days in order to avoid danger to her

health, it was not an emergency which warranted the performance of a hysterectomy

without consent. Dr. Murdock’s belief that a colonoscopy would benefit Plaintiff

does not, under Pizzalotto, legally justify its performance without the patient’s

consent.

Defendants also note a plaintiff in an informed consent case bears the burden

1
Subsequent to the decision in Pizzalotto, there was an amendment to
LSA-R.S. 40:1299.40 in 1990, which melded together the concepts of battery and
negligent failure to obtain informed consent. Thus, the sole cause of action
provided by the legislature for both allegations thereafter sounded only in
negligence, signifying a recognition of the absence of intentional conduct in both
factual situations. See Lugenbuhl v. Dowling, 96-1575, p. 9 (La.10/10/97), 701
So.2d 447, 453 (“We therefore reject battery-based liability in lack of informed
consent cases (which include no-consent cases) in favor of liability based on
breach of the doctor’s duty to provide the patient with material information
concerning the medical procedure.” (Emphasis supplied.)) The 1990 amendment
added Section E to the statute which provides in pertinent part:

In a suit against a physician or other health care
provider involving a health care liability or medical
malpractice claim which is based on the failure of the
physician or other health care provider to disclose or
adequately to disclose the risks and hazards involved in
the medical care or surgical procedure rendered by the
physician or other health care provider, the only theory
on which recovery may be obtained is that of negligence
in failing to disclose the risks or hazards that could have
influenced a reasonable person in making a decision to
give or withhold consent. (Emphasis added).
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of proving disclosure of the material risks would have led a reasonable patient in the

plaintiff’s position to reject the medical procedure or choose a different course of

treatment. Fremin v. Continental Ins. Co., 02-1157 (La.App. 3 Cir. 3/5/03), 839

So.2d 1137, writs denied, 03-966, 03-979, 03-981 (La. 6/27/03), 847 So.2d 1271,

1272. Defendants argue applying this standard in a light most favorable to Plaintiff,

we must conclude that a reasonable person with a family history of colon cancer and

a father who was diagnosed with colon cancer would not refuse a colonoscopy even

when faced with the known risk that his colon might be perforated. While this

eventuality may very well be true, it is only one part of the “choice” inquiry in

securing informed consent. In deciding whether to undergo a colonoscopy, Plaintiff

was entitled to select a physician he believed possessed greater specialized skills to

perform the surgery. We find nothing unreasonable about a patient desiring the best

and most competent medical treatment available and exercising complete control over

his choice of physician in a non-emergency situation. La.R.S. 9:2794(A)(1) provides

that general practitioners are held to the degree of knowledge or skill possessed by

other general practitioners in a similar community or locale and under similar

circumstances; whereas specialists are held to the degree of care ordinarily practiced

within the involved medical specialty. Clearly the law has acknowledged that

specialists are in a superior position within their field than that of a general

practitioner.

After a thorough examination of the law and jurisprudence, we find a favorable

inference can be drawn that the risk of a perforated colon was substantial enough that

a reasonable patient in Plaintiff’s position would have been likely to attach

significance to the risks in deciding not only whether to undergo the procedure, but

when and whether to secure the services of a surgeon possessing particular skills and

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specializing in the area of gastroenterology to perform the procedure. At the

summary judgment stage the burden is upon the Defendants, as the moving party, not

upon Plaintiff, to show the patient was adequately informed of the nature and

magnitude of the risk so as to be able to make an intelligent choice. There was no

emergency. No written consent listing the material risks of a colonoscopy was

obtained. There are, at a minimum, genuine issues of fact whether Dr. Murdock

engaged Plaintiff in a discussion of the risks associated with a colonoscopy or allow

an opportunity for Plaintiff to ask questions as required by La.R.S. 40:1299.40(C).

To be valid, actual consent requires an understanding as set forth in La.R.S.

40:1299.40(C). Under these circumstances, it cannot be said that Dr. Murdock

carried his burden of proof. Plaintiff is entitled to his day in court.

DECREE

For the above reasons, the judgment below granting the summary judgment is

reversed and the case is remanded to the trial court for further proceedings. Costs of

this appeal are assessed to defendants-appellees.

REVERSED AND REMANDED.

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NUMBER 08-1508

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

JOHN MAYBRIER

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, ET AL.

AMY, J., concurring in the result.

I agree that a reversal of the summary judgment is appropriate. I write

separately as I believe that the motion for summary judgment advanced a

straightforward question, i.e., whether the plaintiff may proceed with this lack of

informed consent case due to his statement that he would have undergone a

colonoscopy if informed of the risks, but that he would have had it performed by

another physician. On this narrow issue presented, I find the defendants’ submission

in support of their motion legally insufficient.

La.R.S. 40:1299.40(E)(2)(a) provides that:

In a suit against a physician or other health care provider
involving a health care liability or medical malpractice claim which is
based on the failure of the physician or other health care provider to
disclose or adequately to disclose the risks and hazards involved in the
medical care or surgical procedure rendered by the physician or other
health care provider, the only theory on which recovery may be obtained
is that of negligence in failing to disclose the risks or hazards that could
have influenced a reasonable person in making a decision to give or
withhold consent.

The defendants assert that the plaintiff is precluded from establishing the

causation element of his case due to Livings v. LaNasa, 552 So.2d 1281 (La.App. 5

Cir. 1989), a case rendered prior to the enactment of La.R.S. 40:1299.40(E)(2)(a) and

one distinguished at some length by the majority. I do not distinguish Livings from

this case. In fact, one of the deficiencies I find in the motion for summary judgment

application is the thin factual background provided by the record. Instead, my

understanding of the causation element of the plaintiff’s burden of proof is at odds

with the defendants’ argument regarding the persuasiveness of Livings. The

defendants’ argument and the Livings case focus on the plaintiff’s choice. However,

the causation inquiry involves what a reasonable person would have done.

The Louisiana Supreme Court explained in Lugenbuhl v. Dowling, 96-1575,

p. 12 (La. 10/10/97), 701 So.2d 447, 454, that:

Causation is established only if adequate disclosure reasonably would
be expected to have caused a reasonable person to decline treatment
because of the disclosure of the risk or danger that resulted in the
injury. Although the patient has the absolute right, for whatever reason,
to prevent unauthorized intrusions and treatments, he or she can only
recover damages for those intrusions in which consent would have been
reasonably withheld if the patient had been adequately informed.

(Emphasis added.) See also Jackson v. State, 05-2021 (La. 9/29/06), 938 So.2d 688.

Thus, it seems to me that the choice the plaintiff would have made if faced with the

material risks of a colonoscopy does not, alone and as a matter of law, preclude the

recovery for lack of informed consent. Rather, the inquiry is on what a reasonable

person would have done.

The defendants, in their brief to this court, reference facts and figures regarding

the wisdom of a patient having a colonoscopy performed. However, the evidence in

this regard was submitted in support of the defendants’ first motion for summary

judgment which was denied by the trial court. The defendants have not answered this

appeal, placing review of this first motion for summary judgment at issue. Moreover,

even if considered, I do not see that this evidence on this point is sufficient to sustain

the initial burden of proof under La.Code Civ.P. art. 966(C)(2) of “point[ing] out to

the court that there is an absence of factual support for one or more elements essential

to the adverse party’s claim, action, or defense.”

I further refrain from joining the majority’s discussion regarding the

2

reasonableness of the plaintiff’s preference of a gastroenterologist instead of a general

surgeon. This type of inquiry would necessarily require some evidence that either

specialization had a higher level of expertise for this procedure. The record before

us, however, does not include evidence as to the scope of the expertise of either type

of physician.

For these reasons, I concur in the result.

3