105 So. 3d 207
La. Ct. App.2012Background
- Plaintiff Terri Jackson sued Dr. Williams for podiatry malpractice centered on lack of informed consent following hammer toe surgery and heel spur excisions.
- Jackson alleged three preoperative visits included inadequate discussion of risks and alternatives, and that consent did not adequately disclose risks or the nature of the surgery.
- Surgery occurred August 10, 2004, after two consent forms were signed; post-operative issues included toe deformities and heel problems, leading to ongoing treatment and dissatisfaction.
- Louisiana Medical Review Panel found a material issue of fact on informed consent, while finding other aspects of care met standard of care; trial court later rendered judgment for Williams and insurer.
- Evidence at trial included Jackson’s testimony, Williams’ testimony, two MRP members’ testimony, and nurse Spears; cross-cutting issues concerned admissibility of parole evidence and witness testimony.
- Appellate court affirmed the trial court’s judgment, holding parole evidence admissible to vary written consent and addressing the admissibility and impact of witness testimony on the informed consent claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Parole evidence to modify consent form | Consent form is valid; parole evidence cannot alter it. | Parole evidence admissible; consent form not conclusive of informed consent. | Parole evidence admissible; form not controlling. |
| Admission of Deneen Smith testimony as habit evidence | Smith testimony shows doctor’s habit of nondisclosure; admissible. | Smith testimony is improper other-act/character evidence, not habit. | Exclusion of Smith as witness in chief affirmed; habit evidence not established. |
| Rebuttal testimony by Deneen Smith | Smith should be allowed as rebuttal to counter Williams’ claim about routine disclosures. | Smith testimony should be excluded; did not open the door. | Trial court abused its discretion in excluding Smith as rebuttal; however, analysis shows consequential impact required de novo review; ultimately court reaffirmed judgment for Williams. |
Key Cases Cited
- Hondroulis v. Schuhmacher, 553 So.2d 398 (La. 1989) (informed consent presumption vs. substantive doctrine)
- Dawes v. Kinnett, 779 So.2d 978 (La.App. 4 Cir. 2001) (parole evidence and credibility in informed consent cases)
- Hartman v. D'Ambrosia, 665 So.2d 1206 (La.App. 4 Cir. 1995) (distinguishes situations with brief preoperative visits)
- Soileau v. Med-Express Ambulance Service, Inc., 856 So.2d 92 (La.App. 3 Cir. 2003) (verbal warnings supplementing written consent)
- Walley v. Vargas, 104 So.3d 93 (La.App. 1 Cir. 2012) (consequentiality and de novo review framework)
- Beaucoudray v. Walsh, 9 So.3d 916 (La.App. 4 Cir. 2009) (limitations on admissibility of other similar acts evidence)
- Cerniglia v. French, 816 So.2d 319 (La.App. 4 Cir. 2002) (prohibits independent introduction of similar treatment evidence)
- Brandt v. Engle, 791 So.2d 614 (La. 2001) (four-factor test for informed consent)