Coscino v. Wolfley

696 So. 2d 257, 1997 WL 297673
CourtLouisiana Court of Appeal
DecidedJune 4, 1997
Docket96-CA-0702
StatusPublished
Cited by14 cases

This text of 696 So. 2d 257 (Coscino v. Wolfley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coscino v. Wolfley, 696 So. 2d 257, 1997 WL 297673 (La. Ct. App. 1997).

Opinion

696 So.2d 257 (1997)

Mary M. COSCINO
v.
Darrell E. WOLFLEY, M.D., et al.

No. 96-CA-0702.

Court of Appeal of Louisiana, Fourth Circuit.

June 4, 1997.

*259 Joseph F. Bishop, Jr., Garcia & Bishop, Metairie, for Appellee.

Richard Ieyoub, Attoney General, Mack E. Barham, Robert E. Arceneaux, Jerry B. Jordan, Barham & Arceneaux, New Orleans, for Appellants.

Before LOBRANO, ARMSTRONG and LANDRIEU, JJ.

LANDRIEU, Judge.

This case stems from a medical malpractice claim which alleged a lack of informed consent. The plaintiff was awarded general damages and medical expenses.

FACTS

Mary Coscino developed bulging eyes as a result of having Graves disease. Due to the protrusion of her eyes, she began to experience dryness of her eyes at night because she could not close her lids. She consulted Dr. Darrell Wolfley, an ophthalmologist, in May of 1989 who initially advised her to use Dura Tears and tape her eyes shut at night. This treatment was only minimally effective, so in order to relieve her symptoms and produce a more "normal" appearance, she and Dr. Wolfley discussed various other treatments, including orbital decompression surgery which Ms. Coscino elected to have. Dr. Wolfley treated her for about six months prior to her surgery to stabilize her thyroid condition.

On January 10, 1990, Dr. Wolfley performed the orbital decompression surgery on Ms. Coscino. Shortly afterwards, Ms. Coscino developed a cranial spinal fluid (CSF) leak which spontaneously stopped after a few days. About ten days later, when the CSF leak resumed, Ms. Coscino saw Dr. Roger Smith, a neurosurgeon at LSU. Ms. Coscino was hospitalized and had a spinal catheter inserted to halt the leak. This treatment was only temporarily successful.

When the leak again resumed, Ms. Coscino consulted with another neurosurgeon, Dr. Joseph Kott. He performed a craniotomy to repair a tear in the dura which was the cause of the CSF leak. As a result of the craniotomy, she experiences a diminished sense of taste and smell, phantom smells, and occasional double vision.

Ms. Coscino sued Dr. Wolfley alleging that he had failed to obtain her informed consent. A medical review panel determined that there were issues of material fact involving the informed consent. A trial judge ruled in Ms. Coscino's favor and awarded general damages of $450,000.00 and medical expenses of $40,717.72.

Dr. Wolfley and the Louisiana Department of Health and Hospitals appeal asserting that the trial court committed legal error by:

(1) Ignoring, limiting, and excluding expert testimony which established that the degree of harm of a CSF leak was de minimis;
(2) Not allowing them to introduce evidence as to the method and practice of Dr. Wolfley and the LSU Eye Clinic in obtaining informed consent;
(3) Limiting cross-examination of Ms. Coscino as to her deposition testimony about whether she would have elected the orbital decompression surgery knowing a CSF leak *260 was possible and a craniotomy might have been necessary to repair it;
(4) Not applying an objective standard of causation when determining whether Ms. Coscino would have elected to have an orbital decompression surgery had she known of the risk of a CSF leak and a subsequent craniotomy; and
(5) Awarding excessive damages.

DISCUSSION

The Louisiana Uniform Consent Act in effect at the time of Ms. Coscino's surgery[1] required a patient's written consent which:

(a) [S]ets forth in general terms the nature and the 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, (b) 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 (c) is signed by the patient for whom the procedure is to be performed.... 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.

La.Rev.Stat. 40:1299.40(A).

In a trial claiming inadequate disclosure of risk information by a physician, the patient must establish, prima facie, the essential elements of the cause of action, i.e. that the undisclosed risk actually occurred and had the risk been disclosed, the treatment would have been avoided. LaCaze v. Collier, 434 So.2d 1039 (La.1983). A remote, minor, or insignificant risk does not create a jury question, but when a material risk which would have influenced a reasonable person is proven, it must then be shown that the treating physician breached a duty to disclose that risk. Hondroulis v. Schuhmacher, 553 So.2d 398, 405 (La.1988).

ASSIGNMENT OF ERROR NO. 1

Dr. Wolfley argues that the trial court committed legal error and abused its discretion when it ignored, limited, and excluded expert evidence which established that a CSF leak was a de minimis risk of the surgery performed. The nature of the risk was a factual determination and must be reviewed under the manifest error rule. Stobart v. State through Dept. Transp. and Development, 617 So.2d 880, 882 (La.1993).

The physician is required to disclose all risks which are "material." LaCaze, 434 So.2d at 1045-46. A risk is material when a reasonable person, in what the doctor knows or should know to be the patient's position, would likely attach significance to the risk or cluster of risks in deciding whether to forego the proposed therapy. Hondroulis, 553 So.2d at 412, citing Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972), cert. denied, sub nom., 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). Hondroulis set the standard for determining medical risk as follows:

The factors contributing significance to a medical risk are the incidence of injury and the degree of harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small.
The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. "Some" expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risks exist and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient's position probably would attach significance to the *261 specific risk. This determination of materiality does not require expert testimony.

Hondroulis, 553 So.2d at 412.

The trial court, in deciding whether the risk of a possible CSF leak was de minimis as the appellants argue, or "material" as Ms. Coscino asserts, must apply the standard set forth in Hondroulis.

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Bluebook (online)
696 So. 2d 257, 1997 WL 297673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coscino-v-wolfley-lactapp-1997.