GENOVESE, Judge.
In this medical malpractice case, Plaintiffs, Michael Labit and Christine Labit,
Mr. Labit first saw Dr. Cobb for an evaluation of his back pain on May 12, 2004, pursuant to referral from Dr. Roland Miller. Dr. Cobb noted that an April 27, 2004 MRI revealed a degenerative disc at L4-5 with protrusion. Dr. Cobb recommended that Mr. Labit undergo an anterior lumbar interbody fusion. On July 9, 2004, Mr. Labit signed a consent form for this procedure at Dr. Cobb's office. On July 14, 2004, Mr. Labit saw Dr. Carroll for a pre-operative visit. Dr. Carroll was the general surgeon who was to assist Dr. Cobb with the surgery. At this pre-operative visit, Mr. Labit signed a consent form at Dr. Carroll's office.
Surgery was performed by Drs. Cobb and Carroll on July 15, 2004, at Lafayette Surgical Specialty Hospital in Lafayette, Louisiana. Due to damage to a blood
On July 13, 2007, Mr. Labit filed a complaint with the Louisiana Patient's Compensation Fund, and a medical review panel (MRP) was convened. In an opinion rendered March 5, 2009, the MRP reached the following unanimous opinion:
This opinion is based upon the following:
On June 24, 2009, Mr. Labit filed the instant medical malpractice action, alleging negligence on the part of Drs. Cobb and Carroll in performing the surgery and the failure of the doctors to disclose and/or adequately disclose the potential complications associated with the surgical procedure, namely, DVT. On September 8, 2009, Drs. Cobb and Carroll filed a Motion for Summary Judgment on the issues of breach of the applicable standard of care and informed consent. The matter was heard on December 7, 2009, and the trial court signed a judgment on December 22, 2009, granting summary judgment in favor of Drs. Cobb and Carroll, dismissing Mr. Labit's claims. Mr. Labit appeals.
The overall issue presented by Mr. Labit for our review is whether Drs. Cobb and Carroll obtained Mr. Labit's informed consent by providing adequate disclosure of the material risks associated with his surgical procedure.
In the instant case, Mr. Labit asserts that DVT is a significant risk associated with an anterior lumbar interbody fusion, that this risk was well known to Drs. Cobb and Carroll, and that it was required to have been disclosed to him. Louisiana Revised Statutes 40:1299.40 governs the consent that must be obtained from a patient before a medical procedure is rendered. That statute provides, in relevant part, as follows:
La.R.S. 40:1299.40.
In the instant matter, it is undisputed that Mr. Labit executed a consent form at Dr. Cobb's office, and a second consent form at Dr. Carroll's office. What is disputed, however, is whether the consent forms adequately disclosed the risk of DVT.
The consent form signed by Mr. Labit on July 9, 2004, at Dr. Cobb's office, contains the following language:
An attachment to the above, also signed by Mr. Labit, lists several additional risks associated with spinal operations including, but not limited to:
Additionally, the consent form contains a page entitled
Finally, just above the patient's signature line containing Mr. Labit's signature, the following language appears:
The consent form signed by Mr. Labit at Dr. Carroll's office is virtually identical to the consent form that was signed by Mr. Labit at Dr. Cobb's office with the exception of additional risks that were inserted by hand. The additional risks inserted by hand include "infection, bleeding, hematoma formation, hernia in incision, injury to nerves, bowel, ureter."
A plaintiff's burden of proof in a medical malpractice action, based upon a healthcare provider's alleged failure to disclose or inadequate disclosure of a significant risk associated with a surgical procedure, has been summarized by this court as follows:
Maybrier v. La. Med. Mut. Ins. Co., 08-1508, p. 4 (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1119, writ denied, 09-1558 (La.10/9/09), 18 So.3d 1287.
Wofford v. Dunnick, 09-1309, pp. 3-4 (La. App. 3 Cir. 4/14/10), 36 So.3d 370, 373-74 (quoting Djorghi v. Glass, 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998, writ denied, 09-2614 (La.2/5/10), 27 So.3d 306).
Drs. Cobb and Carroll bear the burden of proof of their entitlement to summary judgment. They do not bear the burden of proof at trial on the issue of informed consent. They are not required to negate all essential elements of Mr. Labit's claims; rather, they must simply show an absence of factual support for one or more elements essential to Mr. Labit's claim. See La.Code Civ.P. art. 966(C)(2). If they are successful in doing so, the burden then shifts to Mr. Labit to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id.
Having reviewed the entire record of these proceedings, we find an absence of factual support essential to Mr. Labit's claim of lack of informed consent. Therefore, Drs. Cobb and Carroll are entitled to summary judgment as a matter of law. Specifically, based upon the evidence of these proceedings, we find that Mr. Labit is unable to establish a failure of these healthcare providers to inform him of the risk of DVT associated with the surgical procedure.
Examining the consent forms executed by Mr. Labit, we find that both of these forms are in compliance with the express provisions of La.R.S. 40:1299.40(A)(1). As required by the statute, the consent forms "set[] forth in general terms the nature and purpose of the procedure." Id. Additionally, "the known risks" contained within the statute are listed on the forms, along with additional risks that are identified in laymen's terms. Id. The forms also contain the requisite language that the patient "acknowledges that such disclosure of information has been made and that all questions asked about the procedure ... have been answered in a satisfactory manner[,]" which disclosure "is evidenced by a signature ... by the patient for whom the procedure is to be performed." Id. Given that the consent forms of Drs. Cobb and Carroll are in compliance with La.R.S.
Our Louisiana Supreme Court expounded on this rebuttable legal presumption in the often cited case of Hondroulis, 553 So.2d 398, 417 (emphasis added) as follows:
In opposition to the Motion for Summary Judgment in the instant matter, although Mr. Labit maintains that he was not told of the risk of DVT, the consent forms do expressly identify the risk of bleeding, blood clots, and injury to a major blood vessel as being risks associated with the surgery. Additionally, while Mr. Labit contends that Drs. Cobb and Carroll failed to adequately explain the surgical procedure and the risks thereof, his signature on the consent forms, whereby he acknowledges that all of his questions were answered to his satisfaction, is contrary to this assertion. Moreover, Mr. Labit did not produce any evidence of misrepresentation on the part of the health care providers. Thus, he has failed to rebut the legal presumption that his consent to the surgical procedure is valid and effective. La.R.S. 40:1299.40; Hondroulis, 553 So.2d 398.
In addition to the consent forms themselves, Drs. Cobb and Carroll introduced the opinion of the MRP in support of their Motion for Summary Judgment. As quoted above, the MRP unanimously concluded that the "[a]ppropriate consent was obtained for this procedure, which consent included the risk of bleeding and damage to blood vessels."
Based upon the foregoing, we find that Drs. Cobb and Carroll successfully met their burden of showing an absence of factual support on an essential element of Mr. Labit's claim of lack of informed consent, i.e., the failure of the physicians to inform the patient of a material risk. Therefore, to preclude the grant of summary judgment, the burden then shifted to Mr. Labit "to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial[.]" La.Code Civ.P. art. 966(C)(2).
The evidence introduced by Mr. Labit in opposition to the Motion for Summary Judgment includes his own affidavit, excerpts of medical records, excerpts of the depositions of Drs. Cobb and Carroll, an affidavit of Dr. James P. Elmes, and a medical journal article entitled Methods and Complications of Anterior Exposure of the Thoracic Spine. Although Mr. Labit strenuously argues that this evidence supports his contentions that DVT is a known risk associated with the surgery and that he developed DVT as a result of the surgical procedure, this evidence is legally insufficient to establish that he will be able to satisfy his burden of proving the elements of his lack of informed consent case at trial.
The affidavit of Dr. Elmes, a board certified orthopedic surgeon, states in part as follows:
Although Mr. Labit relies on the expert opinion of Dr. Elmes, we find that a reading of the affidavit reveals no attestation by this expert "that Dr. Cobb and/or Dr. Carroll failed to disclose deep vein thrombosis or that the consent forms used by Dr. Cobb and/or Dr. Carroll were deficient in any way." In fact, neither this affidavit, nor any evidence introduced by Mr. Labit, establishes "the failure of the physician[s] to inform the patient of a material risk[.]" Maybrier, 12 So.3d at 1119.
Because we have found that Mr. Labit is unable to meet his evidentiary burden at trial that Drs. Cobb and/or Carroll failed to disclose a material risk associated with the surgical procedure, we pretermit any discussion of the remaining elements of Mr. Labit's claim. Without sufficient evidence produced by Mr. Labit to establish that he will be able to prove his claim at trial, no genuine issue of material fact remains; thus, the Motion for Summary Judgment on behalf of Drs. Cobb and Carroll was properly granted.
For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Dr. John E. Cobb and Dr. Daniel J. Carroll is affirmed. Costs of this appeal are assessed to Michael Labit and Christine Labit.
