Ronald J. French, M.D. and Flora French v. Quality Nighthawk Teleradiology Group, Inc.

• Court: Louisiana Court of Appeal
• Decided: October 26, 2023
• Docket: 2023-C-0630
• Status: Published

Opinion

RONALD J. FRENCH, M.D. * NO. 2023-C-0630 AND FLORA FRENCH * VERSUS COURT OF APPEAL * QUALITY NIGHTHAWK FOURTH CIRCUIT TELERADIOLOGY GROUP, * INC. STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01751, DIVISION “D” Honorable Inemesit O’Boyle, Judge ****** Judge Tiffany Gautier Chase ****** (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany Gautier Chase)

Jeff Landry Attorney General Phyllis E. Glazer Assistant Attorney General, Appellate Counsel Gina M. Chiasson Assistant Attorney General, Trial Counsel Louisiana Department of Justice Litigation Division 1885 N. Third Street, 3rd Floor Baton Rouge, LA 70802

COUNSEL FOR RELATOR

T. Carey Wicker, III Michael S. Sepcich Vincent E. Odom Thomas C. Walker, IV Davida F. Packer Capitelli and Wicker, Attorneys at Law 1100 Poydras Street, Suite 2950 New Orleans, LA 70163

COUNSEL FOR RESPONDENT

WRIT GRANTED; JUDGMENT REVERSED OCTOBER 26, 2023 TGC RML PAB

Relators, State of Louisiana, through the Board of Supervisors of Louisiana

State University and Agricultural and Mechanical College, on behalf of LSU

Health Sciences Center and Dr. Guy Orangio, M.D. (hereinafter collectively “the

State”), seek review of the trial court’s August 30, 2023 judgment granting

Respondents’ (hereinafter collectively “Dr. French”) motion in limine.1 After

consideration of the record before this Court, and the applicable law, we grant the

writ and reverse the judgment of the trial court granting Dr. French’s motion in

limine.

Relevant Facts and Procedural History

On January 8, 2015, Dr. Ronald J. French, underwent a laparoscopic partial

colectomy performed by Dr. Orangio. It is undisputed that Dr. French executed an

informed consent form prior to the procedure. After the procedure, he suffered a

ureteral injury and anastomotic leak. On February 19, 2016, Dr. French filed a

medical malpractice petition for damages alleging that the radiologic study was

negligently misread, resulting in his injuries. Dr. French subsequently filed a

supplemental and amending petition for damages adding the State as defendants

and alleging that Dr. Orangio negligently performed the surgery which resulted in 1 Respondents are Dr. Ronald J. French and Flora French. We will refer to Dr. French, by his

name, in his individual capacity and refer to Respondents collectively as “Dr. French.”

1 the complications. Specifically, Dr. French maintained that the State was negligent

in failing to appropriately assess him for an intra-operative injury and in failing to

recognize clinically significant information that should have spurred additional

treatment and timely surgical intervention.

Dr. French filed a motion in limine, on June 30, 2023, seeking to prohibit

reference to or introduction of the informed consent form. Dr. French argued that

reference to the consent form was irrelevant and prejudicial, potentially causing

confusion to the jury, because he was not making a lack of informed consent claim.

Conversely, the State maintained that the consent form demonstrates that Dr.

French was aware that the injuries he sustained were known risks of the partial

colectomy procedure. By judgment dated August 30, 2023, the trial court granted

the motion in limine and excluded evidence, “directly or indirectly,” regarding Dr.

French being informed of treatment risks and/or consenting to the procedure. At

the hearing on the matter, the trial court determined that the prejudicial effect of

evidence regarding informed consent outweighed its probative value. This writ

followed in which the State seeks review of the trial court’s interlocutory ruling.

Discussion

The sole issue before this Court is whether the trial court erred in granting

Dr. French’s motion in limine. Appellate Court’s review a trial court’s judgment

regarding a motion in limine under an abuse of discretion standard of review. River

Rental Realty LLC, Deep S. Leasing, LLC, 2017-0982, p. 8 (La.App. 4 Cir.

6/20/18), 250 So.3d 372, 377. “An abuse of discretion generally results from a

conclusion reached capriciously or in an arbitrary manner.” Boudreaux v. Bollinger

Shipyard, 2015-1345, p. 16 (La.App. 4 Cir. 6/22/16), 197 So.3d 761, 771 (citation

2 omitted). The definition of “arbitrary or capricious” is taking the action in the

absence of a rational basis. Id.

The State asserts that the trial court erred in excluding all evidence, either

“directly or indirectly,” regarding Dr. French being informed of treatment risks

and/or consenting to the procedure. It maintains that this ruling prohibits the State

from introducing evidence relating to Dr. French’s consent to the procedure and his

knowledge of any known risks. Conversely, Dr. French maintains that evidence of

consent is irrelevant because he is not asserting a claim based on informed consent;

rather, his claim is premised upon a breach of standard of care.

In the case sub judice, Dr. French alleges that the State breached its standard

of care by failing to evaluate and treat symptoms of known complications of a

partial colectomy. The trial court ultimately excluded the informed consent

evidence pursuant to La. C.E. art. 403, finding that the probative value of the

evidence is outweighed by its prejudicial effect. La. C.E. art. 403 provides that,

“[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or waste of time.” We

find the trial court made a conclusory finding without properly conducting a La.

C.E. art. 403 balancing test. “[T]he [trial] court must be mindful of the balancing

of interests set forth in [La.] C.E. art. 403… .” Simpson v. U V Ins. Risk Retention

Grp., Inc., 2019-0625, p. 12 (La.App. 3 Cir. 9/30/20), 304 So.3d 1002. 1012. This

Court must balance the State’s right to present a defense with Dr. French’s right to

prove negligent conduct on the part of the State.

We acknowledge that Dr. French’s claim is not based upon a lack of

informed consent. However, to create a blanket prohibition on introduction of all

3 evidence regarding consent and informed risks is highly prejudicial. The State’s

defense is predicated on Dr. French being informed of the risks associated with the

procedure and that a ureteral injury and anastomotic leak is a known complication

of the partial colectomy procedure. The trial court can observe the context in which

the issue of informed consent is presented and determine admissibility at that phase

of the proceeding. Additionally, any obstacle regarding the issue of informed

consent can be alleviated by a properly curated jury instruction. Accordingly, we

find that the probative value of evidence that Dr. French consented to the

procedure, and was therefore informed of the risk, outweighs any potential

prejudice. Thus, there exists no rational basis for the exclusion of the evidence and

its exclusion was an abuse of discretion by the trial court.

WRIT GRANTED; JUDGMENT REVERSED