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A reasonable limitation on the "known" risks which must be disclosed is implied in La. Rev. Stat. Ann. § 40:1299.40. A rare or remote risk need not be disclosed. Disclosure must be made only when a risk is medically known and of a magnitude that would be material in a reasonable patient's decision to undergo treatment.
As a result of her surgery, the patient lost sphincter and bladder control. The patient contended that she would not have undergone the surgery if she had known of the possible consequences. The patient filed a negligence action against defendant doctor. The trial court granted summary judgment in favor of the doctor. The Court of Appeals (Louisiana) affirmed and held that a written consent tracking the language of Louisiana's Uniform Consent Law, specifically La. Rev. Stat. Ann. § 40:1299.40, constituted valid informed consent. A writ was granted to review the appellate court's judgment.
Should a medical consent form, which tracked the language of LSA-R.S. 40:1299.40A, have to specify all known risks of a particular surgical procedure?
On further appeal, the court considered whether a medical consent form, which tracked the language of La. Rev. Stat. Ann. § 40:1299.40A, had to specify all known risks of a particular surgical procedure, and absent misrepresentation of material facts, what proof was required to rebut the statutory presumption of consent that arose when the patient signed the form. The court answered the first question in the negative and held that a reasonable limitation on the "known" risks that had to be disclosed were implied in § 40:1299.40A. Regarding the second question, the court held that the patient was required to show that: (1) the adverse results of her surgery were known, significant, and material risks which should have been disclosed to her, (2) that those risks were not disclosed, (3) that she was unaware of those risks, and (4) that a reasonable person would have refused the surgery because of the risks. In this case, the patient did not introduce any evidence that her condition, unquestionably the result of her surgery, was a known and significant risk of which she was unaware and about which she should have been warned. On the contrary, she knew that paralysis and loss of bodily functions were possible. The court further held that an adverse risk did not establish a material risk. Absent proof of a material risk, the factual question of whether the magnitude of the risk would have convinced a reasonably prudent person in plaintiff's situation to decline treatment did not arise. The decision of the lower court was affirmed.