194 So. 3d 728
La. Ct. App.2016Background
- Plaintiff Latanya Fountain signed a written consent form indicating procedures as "laparoscopic tubal ligation and ventral hernia repair," expecting a small (≈2") scar.
- On August 11, 2009, Dr. Washington Bryan performed both procedures by laparotomy, leaving a large T‑shaped ≈15 cm scar; plaintiff sued for lack of informed consent and damages for disfigurement.
- Medical review panel found inadequate documentation of informed consent but concluded the procedure and postoperative care were appropriate; the panel did not find causation of injury from lack of consent.
- At trial the jury found Dr. Bryan failed to obtain informed consent for the laparotomy performed and that this failure proximately caused plaintiff's physical and emotional injuries; verdict: $150,000.
- Dr. Bryan moved for JNOV arguing (inter alia) the executed consent form (which referenced Panel disclosure lists) created a presumption of valid informed consent and that plaintiff lacked proof of causation; the trial court denied JNOV and the denial was appealed.
- The appellate court applied the manifest‑error standard, reviewed the evidence (operative report, nurses' notes, testimony) and affirmed the jury verdict, finding reasonable basis to conclude the surgery performed differed from the consented procedure and that the risk of a laparotomy scar was not disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether written consent (referencing Panel disclosure lists) creates a presumption physician obtained informed consent for the actual procedure performed | Fountain: consent expressly covered laparoscopy only; she never consented to laparotomy or its greater scarring risk | Bryan: signed consent (referencing Panel risks) encompassed risks of laparotomy and therefore creates a presumption of valid informed consent | Court: presumption did not apply because the form identified laparoscopy; jury reasonably found Bryan performed a different procedure and failed to disclose laparotomy risks |
| Whether physician disclosed material risks required for the procedure actually performed | Fountain: was not informed of the greater scarring risk from laparotomy and would have refused surgery if so informed | Bryan: testified he disclosed general surgical risks (including scarring) and/or relied on the Panel disclosure list referenced in the form | Court: evidence supported jury finding Bryan did not disclose the material risk of a disfiguring laparotomy scar; finding upheld under manifest‑error review |
| Whether jury could find causation without additional expert testimony proving "but for" causation | Fountain: contemporaneous records, plaintiff and expert testimony tied the scar to the laparotomy incision and to non‑consensual procedure | Bryan: plaintiff lacked expert proof that "but for" conversion there would be no large scar; conversion argument justified larger incision | Court: both experts (and Dr. Bryan) attributed the scar to the laparotomy incision; jury reasonably rejected conversion/safety rationale and found causation |
| Standard of review for JNOV and credibility/resolution of conflicting testimony | Fountain: credibility and factual disputes for jury to resolve | Bryan: evidence allegedly uniformly supports his version, so JNOV required | Court: applied manifest‑error standard; credibility conflicts are for jury, and evidence provided reasonable basis for verdict, so JNOV denial affirmed |
Key Cases Cited
- Snider v. Louisiana Medical Mut. Ins. Co., 130 So.3d 922 (La. 2013) (elements and burden for informed‑consent negligence claims and manifest‑error review for factual findings)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (standard for appellate reversal of fact findings — manifest error / clearly wrong)
- Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978) (deference to jury credibility determinations)
- Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La. 1991) (standard for granting judgment notwithstanding the verdict)