Distefano v. Bell

544 So. 2d 567, 1989 WL 51279
CourtLouisiana Court of Appeal
DecidedMay 16, 1989
Docket88 CA 0449
StatusPublished
Cited by7 cases

This text of 544 So. 2d 567 (Distefano v. Bell) 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
Distefano v. Bell, 544 So. 2d 567, 1989 WL 51279 (La. Ct. App. 1989).

Opinion

544 So.2d 567 (1989)

Sylvia R. DISTEFANO
v.
Martin L. BELL, M.D.

No. 88 CA 0449.

Court of Appeal of Louisiana, First Circuit.

May 16, 1989.
Rehearing Denied June 23, 1989.

*568 Stephen M. Irving, Baton Rouge, for plaintiff-appellant Sylvia R. Distefano.

Daniel Reed, Gary L. Boland, Baton Rouge, for defendant-appellee Martin L. Bell, M.D.

Before WATKINS, CRAIN and ALFORD, JJ.

WATKINS, Judge.

Plaintiff-Appellant, Sylvia R. Distefano, sued her doctor, Martin L. Bell, for damages resulting from complications arising after surgery. The case was tried before a judge who dismissed the plaintiff's claims. We affirm.

The sole issue before us on appeal is whether Dr. Bell made sufficient disclosures to Mrs. Distefano, prior to performing the surgery, to obtain her informed consent to the operation.

FACTS

On October 2, 1981, the plaintiff was involved in an automobile accident wherein she sustained several minor injuries to her face. The injuries included lacerations on her forehead and eyelids as well as an impact injury to her nose. She was taken to the emergency room at Our Lady of the Lake Regional Medical Center where she was initially seen by an emergency room physician. However, because the injuries were to her face, Dr. Bell, the plastic surgeon on call for the hospital that evening, was called to treat her. Dr. Bell sutured the cut above her eye and asked to see her several days later in his office. On October 6, 1981, the plaintiff saw Dr. Bell at his office to have her sutures removed. During this procedure the plaintiff inquired into the possibility of having plastic surgery performed on her face. Although the matter was initially brought up in a joking manner, the discussion ended with the plaintiff tentatively agreeing to have a rhinoplasty performed on her nose. The plaintiff testified that Dr. Bell did not discuss possible complications of surgery during this visit; however, he did tell her that sometimes a second surgery is necessary in order to achieve the exact aesthetic appearance desired. He also told her that there was no pain involved and only minimal discomfort. The plaintiff recalled no mention *569 of possible malfunction or loss of function of her nose as a result of surgery. Dr. Bell testified that during this visit he discussed the risks of rhinoplasty as well as the possible benefits. Several days later the plaintiff received a brochure from Dr. Bell on rhinoplasty. The plaintiff read the brochure and returned to Dr. Bell's office on October 14, 1981, for a pre-operative visit. Dr. Bell and his nurse, Landa Liggett, testified that Dr. Bell saw the plaintiff that day to discuss her surgery and answer any questions she might have. Dr. Bell testified at length about the disclosures he made during this pre-operative visit, including the possible loss of function of the nose. Pre-operative pictures of the plaintiff's nose were also taken. The receptionist testified that during this visit she had the plaintiff sign the necessary surgical consent forms. The plaintiff's version of this pre-operative visit is quite different from that of Dr. Bell. The plaintiff testified that Dr. Bell was not in the office that day and that the only thing she did was pose for pre-operative pictures. She further testified that it was not until the morning of surgery, while she was being prepped for surgery, that she signed the necessary consent forms.

The surgery was performed without complication on October 20, 1981. However, apparently as a result of an aberration in the healing process, the plaintiff developed a functional problem wherein her left nostril collapses when she inhales. The problem is internal and cannot be detected from the outside of the nose. The collapsing of the valve area causes a lack of air flow through the nose, resulting in pooling of mucus and drippage. The medical experts explained that a collapsing valve occurs when the supporting cartilage of the nose becomes weakened and is no longer able to support the surrounding tissue. There are many possible causes of this condition, among them the removal of too much cartilage during the surgery, or a post-operative infection which causes a necrosis or weakening of the cartilage.

The trial court, in its reasons for judgment, found that Dr. Bell did not inform Mrs. Distefano of the risk of loss of function and because the loss of function is a known risk of rhinoplasty, Dr. Bell did not properly inform the plaintiff. However, the court determined that the lack of information concerning the possible loss of function was not the cause of plaintiff's damages. The court concluded that even if the plaintiff had been informed about the possible loss of function she would have consented to the surgery anyway.

The requirements for informed consent are set forth in the Uniform Consent Law, LSA-R.S. 40:1299.40, as follows:

A. Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which (a) 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, (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, 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.
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 written 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 *570 to the person consenting for such patient shall include the matters set forth in Paragraph (a) 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.

The recent Supreme Court case of Hondroulis v. Schuhmacher, 531 So.2d 450 (La.1988), reh'g granted, (La. Dec. 1, 1988),[1] redefined the extent of information required in order for a physician to comply with the mandate of LSA-R.S. 40:1299.40. Up until this point the case of LaCaze v. Collier, 434 So.2d 1039 (La.1983), was the leading case on informed consent. In LaCaze the Court stated that "under the statutory rule, the consequences are listed, and the physician's requirement is to disclose all known risks of the listed consequences occurring, whether or not the probability of the occurrence is remote." (Emphasis in original.) Id. at 1046. The Hondroulis Court disagreed with the scope of this rule, stating that "[d]espite the dicta in LaCaze,

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Bluebook (online)
544 So. 2d 567, 1989 WL 51279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/distefano-v-bell-lactapp-1989.