2009 Louisiana Laws TITLE 40 Public health and safety :: RS 40:1299.40 Consent to medical treatment; exception; availability of lists to establish necessity and degree

PART XXII.  UNIFORM CONSENT LAW

§1299.40.  Consent to medical treatment; exception; availability of lists to establish necessity and degree

A.(1)  Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1299.40.1, to any medical or surgical procedure or course of procedures which 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; 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 is evidenced by a signature, marking, or affirmative action through electronic means, 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.

(2)  In addition to the information required to be disclosed in Paragraph (1) of this Subsection, where the medical treatment involves the surgical implantation of "Norplant" contraceptive devices, the explanation to the patient shall include the known and significant or other material risks, the known adverse results, and alternative methods of contraception.

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 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 (1) 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.

D.(1)  Notwithstanding this Section or any other law to the contrary, whenever it is determined by the hospital infection control committee or equivalent body that an agent or employee of a hospital, or a physician having privileges at the hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner as to create any risk that the agent, employee, or physician may become infected with the human immunodeficiency virus or other infectious agent if the patient is infected with the human immunodeficiency virus or other infectious agent, in accordance with the infectious disease exposure guidelines of the Centers for Disease Control or the infectious disease exposure standards of the health care facility where the exposure occurred, then the hospital infection control committee may, without the consent of the patient, conduct such tests on blood previously drawn or body fluids previously collected as are necessary to determine whether the patient is, in fact, infected with the virus or other agent believed to cause acquired immune deficiency syndrome or other infectious disease.  If no previously drawn blood or collected bodily fluids are available or are suitable, the hospital may order, without the consent of the patient, that blood, bodily fluids, or both be drawn and collected from the patient to conduct the necessary tests.

(2)  Notwithstanding this Section or any other law to the contrary, whenever it is determined by the infectious disease control officer of any law enforcement, fire service, or emergency medical service agency or organization that an agent or employee of the agency or organization has been exposed to the blood or bodily fluids of a patient while rendering emergency medical services, transporting, or treating an ill or injured patient in such a manner as to create any risk that the agent or employee may become infected with the human immunodeficiency virus or other infectious agent if the patient is infected with the human immunodeficiency virus or other infectious agent, in accordance with the infectious disease exposure guidelines of the Centers for Disease Control or the infectious disease exposure standards of the agency or organization, then the infectious disease control officer of the agency or organization may present the facts to the infection control committee of the hospital or other health care facility to which the patient has been transported.  If the hospital infection control committee agrees that there has been a potential exposure to the agency or organization personnel, then the hospital infection control committee may, while the patient is in such hospital and without the consent of the patient, conduct such tests as are provided for in R.S. 40:1299.40(D)(1).

(3)  The results of the test shall not become a part of the patient's medical record and shall be confidential, except that the hospital may inform the exposed employee, agent, or physician, or the infectious disease control officer of the law enforcement, fire service, or emergency medical service agency of the results of the test.

(4)  In the event that the test is performed, and the results of the test are positive, the hospital shall inform the patient of the results and shall provide such follow-up testing and counseling as may be required according to the accepted standard of medical care.

(5)  The patient shall not be charged for any tests performed under this Subsection.

(6)  Nothing herein shall be construed to require the hospital to perform the test described herein.

E.(1)  As used in this Subsection, "secretary" means the secretary of the Department of Health and Hospitals.

(2)(a)  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.

(b)  Consent to medical treatment may be evidenced according to the provisions of Subsections A and C of this Section or, as an alternative, a physician or other health care provider may choose to avail himself of the lists established by the secretary pursuant to the provisions of this Subsection as another method by which to evidence a patient's consent to medical treatment.

(3)  The secretary shall determine which risks and hazards related to medical care and surgical procedures must be disclosed by a physician or other health care provider to a patient or person authorized to consent for a patient and to establish the general form and substance of such disclosure.

(4)(a)  To the extent feasible, the secretary shall identify and make a thorough examination of all medical treatments and surgical procedures in which physicians and other health care providers may be involved in order to determine which of those treatments and procedures do and do not require disclosure of the risks and hazards to the patient or person authorized to consent for the patient.

(b)  The secretary shall prepare separate lists of those medical treatments and surgical procedures that do and do not require disclosure and for those treatments and procedures that do require disclosure shall establish the degree of disclosure required and the form in which the disclosure will be made.

(c)  Lists prepared under Subparagraph (b) of this Paragraph together with written explanations of the degree and form of disclosure shall be promulgated according to the Administrative Procedure Act.  The form of the disclosure and manner in which such disclosure will be made shall be subject to legislative oversight by the House and Senate health and welfare committees.  The lists compiled and published and rules promulgated relative to the form and manner of disclosure according to the provisions of this Subsection and evidence of such disclosures or failure to disclose by a physician or other health care provider as provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health care liability suit or medical malpractice claim involving medical care rendered or a surgical procedure performed on or after March 1, 1991.

(d)  At least annually, or at such other period as the secretary may determine, the secretary shall identify and examine any new medical treatments and surgical procedures that have been developed since its last determinations, shall assign them to the proper list, and shall establish the degree of disclosure required and the form in which the disclosure shall be made.  The secretary shall also review and examine such treatments and procedures for the purpose of revising lists previously published.  These determinations shall be published in the same manner as described in Subparagraph (c) of this Paragraph.

(5)  Before a patient or a person authorized to consent for a patient gives consent to any medical or surgical procedure that appears on the list requiring disclosure, the physician or other health care provider shall disclose to the patient, or person authorized to consent for the patient, the risks and hazards involved in that kind of care or procedure.  A physician or other health care provider may choose to utilize the lists prepared by the secretary and shall be considered to have complied with the requirements of this Subsection if disclosure is made as provided in Paragraph (6) of this Subsection.

(6)  Consent to medical care that appears on the secretary's list requiring disclosure shall be considered effective under this Subsection, if it is given by the patient or a person authorized to give the consent and by a competent witness, and if the consent specifically states, in such terms and language that a layman would be expected to understand, the risks and hazards that are involved in the medical care or surgical procedure in the form and to the degree required by the secretary under Paragraph (4) of this Subsection.

(7)(a)  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 negligent 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:

(i)  Both the disclosure made as provided in Paragraph (5) of this Subsection and the failure to disclose based on inclusion of any medical care or surgical procedure on the secretary's list for which disclosure is not required shall be admissible in evidence and shall create a rebuttable presumption that the requirements of Paragraphs (5) and (6) of this Subsection have been complied with, and this presumption shall be included in the charge to the jury; and

(ii)  The failure to disclose the risks and hazards involved in any medical care or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this Subsection shall be admissible in evidence and shall create a rebuttable presumption of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5) and (6) of this Subsection, and this presumption shall be included in the charge to the jury; but failure to disclose may be found not to be negligent, if there was an emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.

(b)  If medical care is rendered or a surgical procedure performed with respect to which the secretary has not made a determination regarding a duty of disclosure, the physician or other health care provider is under the general duty to disclose otherwise imposed by this Section.

(c)  In order to be covered by the provisions of this Subsection, the physician or other health care provider who will actually perform the contemplated medical or surgical procedure shall:

(i)  Disclose the risks and hazards in the form and to the degree required by the secretary;

(ii)  Disclose additional risks, if any, particular to a patient because of a complicating medical condition, either told to the physician or other health care provider by the patient or his representative in a medical history of the patient or reasonably discoverable by such physician or other health care provider;

(iii)  Disclose reasonable therapeutic alternatives and risks associated with such alternatives;

(iv)  Relate that he is obtaining a consent to medical treatment pursuant to the lists formulated by the secretary; and

(v)  Provide an opportunity to ask any questions about the contemplated medical or surgical procedure, risks, or alternatives and acknowledge in writing that he answered such questions, to the patient or other person authorized to give consent to medical treatment, receipt of which shall be acknowledged in writing.

F.  Notwithstanding the provisions of Subsection E of this Section, consent for dental treatment rendered by dentists not performing oral and maxillofacial surgery in a hospital setting shall be governed exclusively by the provisions of R.S. 40:1299.131.

Added by Acts 1975, No. 529, §1.  Amended by Acts 1976, No. 407, §1; Acts 1988, No. 105, §1; Acts 1990, No. 787, §1; Acts 1990, No. 1093, §1, eff. July 31, 1990; Acts 1991, No. 962, §1; Acts 1993, No. 633, §1, eff. June 15, 1993; Acts 1993, No. 999 §1; Acts 1995, No. 1168, §1; Acts 2001, No. 1032, §14; Acts 2008, No. 738, §1, eff. July 3, 2008; Acts 2008, No. 815, §3.