§ 40:1157.2 — Louisiana Medical Disclosure Panel; creation; membership; powers; duties

Louisiana § 40:1157.2

• Jurisdiction: Louisiana
• Title 40: Public Health and Safety

Text

§1157.2. Louisiana Medical Disclosure Panel; creation; membership; powers; duties
A. As used in this Section, the following terms shall mean:
(1) "Department" means the Louisiana Department of Health.
(2) "Panel" means the Louisiana Medical Disclosure Panel.
B.(1) The Louisiana Medical Disclosure Panel is hereby created within the
department to determine which risks and hazards related to medical care and surgical
procedures must be disclosed by a physician or other health care provider to a patient or
person authorized to consent for a patient and to establish the general form and substance of
such disclosure.
(2) The panel shall be comprised of the following members who shall be appointed
by the governor and submitted to the Senate for confirmation:
(a) Two members licensed to practice dentistry. One member who specializes in oral
and maxillofacial surgery shall be selected from a list of nominees submitted to the governor
by the Louisiana Society of Oral and Maxillofacial Surgeons. The other member shall be
selected from a list of nominees submitted to the governor by the Louisiana Dental
Association.
(b) Four members licensed to practice law in this state, of whom three shall be
selected from a list of nominees submitted to the governor by the Louisiana Association for
Justice, and one shall be selected from a list of nominees submitted to the governor by the
Louisiana Association of Defense Counsel.
(c) Six members licensed to practice medicine in this state who shall be selected
from a list of nominees submitted to the governor by the Louisiana State Medical Society.
One of the six physicians shall be a hospital-employed physician.
(d) One member licensed to practice chiropractic in this state who shall be selected
from a list of nominees submitted to the governor by the Chiropractic Association of
Louisiana.
(e) One member licensed to practice podiatry in this state who shall be selected from
a list of nominees submitted to the governor by the Louisiana Podiatric Medical Association.
(f) One member licensed to practice optometry in this state who shall be selected
from a list of nominees submitted to the governor by the Optometry Association of
Louisiana.
(g) One member licensed as a nurse practitioner in this state who shall be selected
from a list of nominees submitted to the governor by the Louisiana Association of Nurse
Practitioners.
C. The initial members of the panel shall have the following terms:
(1) The dentist who specializes in oral and maxillofacial surgery, the chiropractic
physician, the podiatrist, the optometrist, the nurse practitioner, one attorney, and two
physicians shall each serve a term of two years, or until a successor is appointed and
qualified.
(2) Two attorneys, two physicians, and one dentist shall each serve a term of four
years, or until a successor is appointed and qualified.
(3) One attorney and two physicians shall each serve a term of six years, or until a
successor is appointed and qualified.
(4) Thereafter, at the expiration of the term of each member of the panel, the
governor shall appoint a successor and such successor shall serve for a term of six years, or
until his successor is appointed and qualified.
D. Any member of the panel who is absent for three consecutive meetings without
the consent of a majority of the panel at each such meeting may be removed by the governor
at the request of the panel present submitted in writing and signed by the chairman. Upon
the death, resignation, or removal of any member, the secretary of the department shall fill
the vacancy by selection, subject to confirmation by the Senate, for the unexpired portion of
the term.
E. Members of the panel shall not be entitled to per diem or any other compensation
for their service, but shall be entitled to reimbursement of any necessary and reasonable
expense incurred in the performance of their duties on the panel, including travel expenses.
F. Meetings of the panel shall be held at the call of the chairman or on petition of at
least three members of the panel.
G. At the first meeting of the panel each year after its members assume their
positions, the panelists shall select one of the panel members to serve as chairman and one
of the panel members to serve as vice chairman, and each such officer shall serve for a term
of one year. The chairman shall preside at meetings of the panel, and in his absence, the vice
chairman shall preside.
H. The department shall provide administrative assistance to and serve as the staff
for the panel.
I. The governor shall appoint the initial members of the panel no later than October
1, 2012, and the panel shall convene its first meeting no later than November 1, 2012.
J.(1) To the extent feasible, the panel shall identify and make a thorough examination
of all medical treatments and surgical procedures in which physicians and other health care
providers may be involved in order to determine which of those treatments and procedures
do and do not require disclosure of the risks and hazards to the patient or person authorized
to consent for the patient. The panel, initially, shall examine all existing medical disclosure
lists and update and repromulgate those lists under the authority vested in this Section. The
dentist member of the panel shall participate only in the panel's deliberation, determination,
and preparation of lists of dental treatments and procedures that do and do not require
disclosure.
(2) The panel shall prepare separate lists of those medical treatments and surgical
procedures that do and do not require disclosure and for those treatments and procedures that
do require disclosure shall establish the degree of disclosure required and the form in which
the disclosure will be made.
(3) Lists prepared pursuant to the provisions of this Section together with written
explanations of the degree and form of disclosure shall be promulgated in accordance with
the provisions of the Administrative Procedure Act. The form of the disclosure and manner
in which such disclosure will be made shall be subject to legislative oversight by the House
and Senate health and welfare committees.
K. The lists compiled and published and rules promulgated relative to the form and
manner of disclosure according to the provisions of this Section and evidence of such
disclosures or failure to disclose by a physician or other health care provider as provided in
this Section, shall be admissible in a health care liability suit or medical malpractice claim
involving medical care rendered or a surgical procedure performed.
L. At least annually, or at such other period as the panel may determine, the panel
shall identify and examine any new medical treatments and surgical procedures that have
been developed since its last determinations, shall assign them to the proper list, and shall
establish the degree of disclosure required and the form in which the disclosure shall be
made. The panel shall also review and examine such treatments and procedures for the
purpose of revising lists previously published. These determinations shall be published in
the same manner as described in Paragraph (J)(3) of this Section.
M. Before a patient or a person authorized to consent for a patient gives consent to
any medical or surgical procedure that appears on the panel's list requiring disclosure, the
physician or other health care provider shall disclose to the patient, or person authorized to
consent for the patient, the risks and hazards involved in that kind of care or procedure. A
physician or other health care provider may choose to utilize the lists prepared by the panel
and shall be considered to have complied with the requirements of this Subsection if
disclosure is made as provided in Subsection N of this Section.
N. Consent to medical care that appears on the panel's list requiring disclosure shall
be considered effective pursuant to the provisions of this Section, if it is given in writing,
signed by the patient or a person authorized to give the consent and by a competent witness,
and if the written consent specifically states, in such terms and language that a layman would
be expected to understand, the risks and hazards that are involved in the medical care or
surgical procedure in the form and to the degree required by the panel pursuant to the
provisions of this Section.
O.(1) All the following requirements shall apply in a suit against a physician or other
health care provider involving a health care liability or medical malpractice claim that is
based on the negligent failure of the physician or other health care provider to disclose or
adequately to disclose the risks and hazards involved in the medical care or surgical
procedure rendered by the physician or other health care provider:
(a) Both the disclosure made as provided in Subsection M of this Section and the
failure to disclose based on inclusion of any medical care or surgical procedure on the panel's
list for which disclosure is not required shall be admissible in evidence and shall create a
rebuttable presumption that the requirements of Subsections M and N of this Section have
been complied with, and this presumption shall be included in the charge to the jury.
(b) The failure to disclose the risks and hazards involved in any medical care or
surgical procedure required to be disclosed under Subsections M and N of this Section shall
be admissible in evidence and shall create a rebuttable presumption of a negligent failure to
conform to the duty of disclosure set forth in Subsections M and N of this Section, and this
presumption shall be included in the charge to the jury. However, failure to disclose may be
found not to be negligent, if there was an emergency as defined in R.S. 40:2113.6(C) or, if
for some other reason, it was not medically feasible to make a disclosure of the kind that
would otherwise have been negligence.
(2) If medical care is rendered or a surgical procedure performed with respect to
which the panel has not made a determination regarding a duty of disclosure, the physician
or other health care provider is under the general duty to disclose otherwise imposed by R.S.
40:1157.1.
P. In order to be covered by the provisions of this Section, the physician or other
health care provider who will actually perform the contemplated medical or surgical
procedure shall:
(1) Disclose the risks and hazards in the form and to the degree required by the panel.
(2) Disclose additional risks, if any, particular to a patient because of a complicating
medical condition, either told to the physician or other health care provider by the patient or
his representative in a medical history of the patient or reasonably discoverable by such
physician or other health care provider.
(3) Disclose reasonable therapeutic alternatives and risks associated with such
alternatives.
(4) Relate that he is obtaining a consent to medical treatment pursuant to the lists
formulated by the Louisiana Medical Disclosure Panel.
(5) Provide an opportunity to ask any questions about the contemplated medical or
surgical procedure, risks, or alternatives and acknowledge in writing that he answered such
questions, to the patient or other person authorized to give consent to medical treatment,
receipt of which shall be acknowledged in writing.
Q. The department shall maintain a searchable database of all current medical
disclosure lists and make such database available to the public on the website of the
department.
R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:11 et seq., or
any other law, if any member of the panel is physically present at a meeting, any number of
the other members of the panel may attend the meeting by use of telephone conference call,
videoconferencing, or other similar telecommunication methods for purposes of establishing
a quorum or voting or for any other meeting purpose allowing a panel member to fully
participate in any panel meeting. The provisions of this Subsection shall apply without
regard to the subject matter discussed or considered by the panel at the meeting. A meeting
held by telephone conference call, videoconferencing, or other similar telecommunication
method:
(1) Shall be subject to the notice requirements of R.S. 42:11 et seq.
(2) Shall not be held unless the notice of the meeting specifies the location of the
meeting at which a member of the panel will be physically present.
(3) Shall be open to the public and audible to the public at the location specified in
the notice.
(4) Shall provide two-way audio communication between all panel members
attending the meeting during the entire meeting, and, if the two-way audio communication
link with any member attending the meeting is disrupted at any time, the meeting may not
continue until the two-way audio communication link is reestablished.
S. The Louisiana Department of Health, its agents or employees, or any person
serving as a member of the panel shall not be liable to any person, firm or entity, public or
private, for any act or omission arising out of a health care provider attempting to obtain or
obtaining informed consent pursuant to the provisions of this Section.

Legislative History

Acts 2012, No. 600, §2, eff. June 7, 2012; Acts 2012, No. 759, §2, eff. June 12, 2012; Redesignated from R.S. 40:1299.39.6 by HCR 84 of 2015 R.S.