Mustacchio v. Parker

535 So. 2d 833, 1988 WL 85625
CourtLouisiana Court of Appeal
DecidedAugust 17, 1988
Docket19828-CA
StatusPublished
Cited by2 cases

This text of 535 So. 2d 833 (Mustacchio v. Parker) 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
Mustacchio v. Parker, 535 So. 2d 833, 1988 WL 85625 (La. Ct. App. 1988).

Opinion

535 So.2d 833 (1988)

Mary Ann MUSTACCHIO, et ux, Plaintiffs-Appellants,
v.
Dr. John D. PARKER, et al, Defendant-Appellee.

No. 19828-CA.

Court of Appeal of Louisiana, Second Circuit.

August 17, 1988.

*834 Stephen E. Everett, Alexandria, for plaintiffs-appellants.

Hayes, Harkey, Smith, Cascio & Mullens by Haynes L. Harkey, Jr., Monroe, for defendant-appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.

SEXTON, Judge.

The plaintiffs, Mary Ann Mustacchio and her husband, James V. Mustacchio, appeal the trial court judgment denying their claim for damages for medical malpractice allegedly committed by the defendant, Dr. John D. Parker. We affirm.

FACTS

In the latter part of 1980, while she was living in Tulsa, Oklahoma, Mrs. Mustacchio decided to have her overbite corrected. She consulted an orthodontist, an oral surgeon, and a general dentist before she selected Dr. Don R. McArthur as her orthodontist.[1]

Mrs. Mustacchio was under Dr. McArthur's care for the next one and a half to two years. During this time, she also saw two dentists for her checkups and cleanings. She told all three of these dentists that her teeth were loose and that she was concerned about this looseness. None of these dentists took any x-rays.

In 1983, Mrs. Mustacchio moved to Monroe, Louisiana, when her husband's employer transferred him there. Before she left Oklahoma, she consulted another orthodontist about the looseness in her teeth. Like the other dentists, he did not take any x-rays. He did give her a list of orthodontists in Monroe. She selected Dr. Parker from that list.

She first saw Dr. Parker on April 21, 1983. On this first visit to Dr. Parker, she told him about the looseness of her teeth and continued to complain about the looseness throughout her treatment by him. Believing that the braces on her teeth were too heavy, Dr. Parker changed to lighter braces.

Dr. Parker took the braces off on January 16, 1984 and took measurements for retainers. Although her teeth were still loose at this time, Dr. Parker attributed the mobility to the orthodontic treatment. Apparently, some mobility is not unusual after braces are removed. He expected the teeth to tighten up in three to four weeks. In February, 1984, the mobility persisted and Dr. Parker referred her to Dr. Damon Bradford, a periodontist, because he thought a gum problem might exist. Mrs. Mustacchio saw Dr. Bradford in April of 1984. Dr. Bradford x-rayed her teeth and discovered that she had experienced significant root resorption.

Resorption is the loss of the root structure of the teeth. The most dramatic resorption has occurred on the four upper incisors. There was minimal resorption on three lower incisors and moderate resorption on a fourth lower incisor. There was also limited resorption on other teeth.

None of the dentists that she saw during her orthodontic treatment, including Dr. McArthur and Dr. Parker, told her of the particular risk of resorption.

In July of 1984, Mrs. Mustacchio began seeing Dr. Conrad L. Cloetta, a prosthodontist[2] in Dallas, Texas. He splinted her four front teeth and filed down her teeth in the back to give her a better bite. She is still under his care and that of a periodontist in Georgia, her current home.

Mr. and Mrs. Mustacchio alleged that Dr. Parker was negligent in failing to discover the root resorption problem by failing to employ x-rays and that Dr. Parker was *835 negligent in failing to inform Mrs. Mustacchio of the risk of root resorption.

The trial court found that the defendant had not obtained the plaintiff's written informed consent as required by LSA-R.S. 40:1299.40. The court stated that this failure alone did not make the defendant liable to the plaintiff. Citing LaCaze v. Collier, 434 So.2d 1039 (La.1983), the trial court held that the plaintiff failed to prove that the failure to inform caused the damaging consequences. The court noted that the plaintiff was two-thirds of the way through the treatment when she started seeing the defendant, and that the expert testimony was to the effect that even if the resorption had been discovered at that point, continued orthodontic treatment was necessary. The court found that the plaintiff would have been unreasonable to have decided to avoid treatment through fear of improbable and unlikely consequences. Further, the court found that plaintiff failed to prove that her injuries were the result of a lack of knowledge and skill on the part of Dr. Parker and thus the court rejected the plaintiff's demands.

INFORMED CONSENT

On appeal, the plaintiffs initially argue that the trial court did not properly apply the law on informed consent as provided in LSA-R.S. 40:1299.40 when it found that Dr. Parker was not negligent in his failure to inform Mrs. Mustacchio of the risk of resorption. When a patient consents to treatment but does not have sufficient information to make an informed decision concerning his treatment, the doctor may be liable in negligence for a poor result. LaCaze v. Collier, supra, at 1040-41, n. 1; Hodge v. Lafayette General Hospital, 399 So.2d 744 (La.App. 3rd Cir.1981); Percle v. St. Paul Fire & Marine Insurance Company, 349 So.2d 1289 (La.App. 1st Cir.1977), writ denied, 350 So.2d 1218 (La.1977).

LSA-R.S. 40:1299.40 provides that consent to a medical procedure consists of explaining to the patient the nature and purpose of the procedure and the known risks "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." According to subsection C of the statute, consent does not have to be written if the preceding information is conveyed to the patient and the patient is given an opportunity to ask questions which are satisfactorily answered. The Supreme Court has held that under this statute "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." LaCaze v. Collier, supra, at 1046.

There is no question that Mrs. Mustacchio experienced root resorption on several of her teeth. It is clear from the expert testimony that resorption is a known risk of orthodontic treatment. Various studies reveal that resorption occurs in anywhere from 21% to 100% of the orthodontic cases. Dr. Parker testified that he was aware that root resorption was a risk of orthodontic treatment. Dr. Parker admitted that he did not inform Mrs. Mustacchio of the risk of root resorption.

Proving that the undisclosed risk occurred is not sufficient for the plaintiff to recover. The plaintiff must also prove that the failure to inform of this risk caused the damaging consequences. LaCaze, supra. In other words, the plaintiff must prove that if the risk had been disclosed, the treatment and the unwanted consequences would have been avoided. If the patient would have undergone the treatment anyway, then the failure to inform did not cause the unwanted consequences and the plaintiff cannot recover.

The courts have adopted an objective test for determining causation. Under this test, the court examines "whether a reasonable person in the patient's position would have consented to the operation if full disclosure had been made." LaCaze, supra, at 1048 (emphasis in original).

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535 So. 2d 833, 1988 WL 85625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mustacchio-v-parker-lactapp-1988.