Price v. ERBE USA, INC.

42 So. 3d 985, 9 La.App. 3 Cir. 1076, 2010 La. App. LEXIS 874, 2010 WL 2292196
CourtLouisiana Court of Appeal
DecidedJune 9, 2010
DocketCA 09-1076
StatusPublished
Cited by5 cases

This text of 42 So. 3d 985 (Price v. ERBE USA, INC.) 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
Price v. ERBE USA, INC., 42 So. 3d 985, 9 La.App. 3 Cir. 1076, 2010 La. App. LEXIS 874, 2010 WL 2292196 (La. Ct. App. 2010).

Opinions

PETERS, J.

_JjThe plaintiffs in this medical malpractice action, James J. Price, IV, and Jena Broussard Price, appeal the trial court judgment rejecting their claims for damages against the defendants, Dr. Charles Humphries and Dr. Francis Bride. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from the unintentional consequences of a January 17, 2002 procedure performed at St. Patrick Hospital in Lake Charles, Louisiana. On that day, Dr. Charles Humphries, a Lake Charles, Louisiana family practitioner, performed a scheduled screening colonos-copy on James J. Price, IV.1 Early in the procedure, Dr. Humphries detected the presence of several polyps in the colon. He immediately aborted the screening procedure, and Dr. Francis Bride, a Lake Charles, Louisiana gastroenterologist, stepped in to surgically excise the polyps. Dr. Bride removed three of the four polyps without incident during the polypectomy using an electro-cautery snare. However, when removing the fourth, the electro-cau-tery snare malfunctioned, causing a deeper burn of the colon than Dr. Bride desired.

In response to the unintended burn, Dr. Bride performed a detailed visual inspection of the area to rule out the possibility of an acute perforation of the colon. He found no perforation through his visual inspection, but ordered flat and upright abdominal x-rays to detect the presence of any free air — an indication of a perforation. These x-rays were negative for any danger signs. Still, Dr. Bride extended Mr. Price’s stay in the hospital to rule out any perforation, then released him to go home.

When on January 18, 2002, Mr. Price began to experience symptoms consistent |2with a perforation, Dr. Humphries directed him to the emergency room at St. Patrick’s Hospital. Tests at the emergency room confirmed the presence of a perforation, and Dr. Ron Kober, a Lake Charles, Louisiana surgeon, recommended that the perforation initially be treated with antibiotics in the hope it would seal without the necessity of surgery. This approach proved unsuccessful, and two days later Dr. Ken Moss, another Lake Charles, Louisiana surgeon, surgically repaired the perforation.

On January 12, 2005, Mr. and Mrs. Price brought a medical malpractice action against Drs. Humphries and Bride and St. Patrick’s Hospital. The claims were first submitted to a medical review panel, as required by La.R.S. 40:1299.47, and the panel absolved all three defendants of any liability. When the matter ultimately went to trial on November 3, 2008, only the two doctors remained as defendants.

The four-day jury trial addressed two issues: (1) whether the two doctors obtained Mr. Price’s consent to the poly-pectomy procedure, and (2) whether Mr. Price received appropriate post-procedure care. The jury found in favor of the doctors on both issues, and this appeal followed. On appeal, Mr. and Mrs. Price have limited their arguments to the ques[988]*988tion of consent. In doing so, they have asserted seven assignments of error:2

1. The jury erred as a matter of law in finding that Dr. Humphries obtained the proper consent from Mr. Price to perform a polypectomy when that doctor did not perform that procedure in his practice.
2. The jury erred as a matter of law in finding that Dr. Bride obtained the proper consent from Mr. Price to perform a polypectomy.
8. The jury committed manifest error in finding Dr. Humphries obtained the proper consent from Mr. Price to perform a polypectomy when that doctor did not perform that procedure in his practice.
|s4. The jury committed manifest error in finding Dr. Bride obtained the proper consent from Mr. Price to perform a polypectomy.
5. The trial court erred in allowing a family practice physician and an internist to testify as expert witnesses in the trial over Mr. Price’s objection when both physicians testified they did not perform colonoscopies and/or polypecto-mies in their practice.
6. The trial court erred in referring to the locality rule contained in La.R.S. 9:2794(A)(1) in its jury charge over an objection.
7. The jury erred in failing to award damages to Plaintiffs.

OPINION

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, THREE, FOUR, AND FIVE

The plaintiffs’ first five assignments of error address whether Mr. Price gave an informed consent for the polypectomy to be performed. In their fifth assignment of error the plaintiffs assert that the trial court erred in allowing two of the defendants’ expert witnesses to testify on the issue of consent. In their first and third assignments of error the plaintiffs address whether Dr. Humphries obtained Mr. Price’s consent. Specifically, the plaintiffs do not contend that Dr. Humphries failed to obtain consent to perform a colonosco-py. Instead, they argue that Dr. Hum-phries failed to disclose that a polypectomy might take place during the colonoscopy if polyps were found. In their second and fourth assignments of error, the plaintiffs argue that Dr. Bride did not obtain consent to perform the polypectomy.

The medical treatment consent requirements are found in La.R.S. 40:1299.40, and in January of 2002,3 that statute provided three ways a medical provider could obtain consent. The first of the three required the medical provider to obtain a handwritten consent to the proposed medical treatment. La.R.S. 40:1299.40(A)(1).4 [4The patient was required to acknowledge in the [989]*989handwritten consent that he or she had been informed “in general terms the nature and purpose of the procedure” and of the “known risks” associated with the procedure, and that the patient had an adequate opportunity to have all questions “answered in a satisfactory manner.” Id. The consent obtained in that manner was “presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.” Id.

Louisiana Revised Statutes 40:1299.40(0) provided in January of 2002 that consent secured “other than in accordance with Subsection A” would also stand muster if the information required in La. R.S. 40:1299.40(A)(1) was made available to the patient and the patient had the opportunity to have all questions “answered in a satisfactory manner.” The primary difference between consent obtained under La.R.S. 40:1299.40(0) and that obtained under La.R.S. 40:1299(A) is that the former does not carry the presumption afforded a handwritten consent. Instead, proof of consent obtained under La.R.S. 40:1299.40(0) “is subject to proof according to the rules of evidence in ordinary cases.”

Finally, La.R.S.

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42 So. 3d 985, 9 La.App. 3 Cir. 1076, 2010 La. App. LEXIS 874, 2010 WL 2292196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-erbe-usa-inc-lactapp-2010.