Opinion
NO. 19-CA-80
10-23-2019
Brenda SAPPINGTON, Wife of and Daniel Sappington v. SOUTHERN PAIN AND ANESTHESIA CONSULTANTS, L.L.C. and Paul J. Hubbell, III, M.D.
COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA SAPPINGTON, WIFE OF AND DANIEL SAPPINGTON, Eric A. Bopp, Arabi, Walter R. Woodruff, Jr., Mandeville, Tyler S. Loga COUNSEL FOR DEFENDANT/APPELLEE, SOUTHERN PAIN AND ANESTHESIA CONSULTANTS, L.L.C. AND PAUL J. HUBBELL, III, M.D., Bruce A. Cranner, Molly L. Manieri
COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA SAPPINGTON, WIFE OF AND DANIEL SAPPINGTON, Eric A. Bopp, Arabi, Walter R. Woodruff, Jr., Mandeville, Tyler S. Loga
COUNSEL FOR DEFENDANT/APPELLEE, SOUTHERN PAIN AND ANESTHESIA CONSULTANTS, L.L.C. AND PAUL J. HUBBELL, III, M.D., Bruce A. Cranner, Molly L. Manieri
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
MOLAISON, J. In this medical malpractice action brought by Brenda and Daniel Sappington against a pain management physician who performed a diagnostic nerve block injection procedure on Mrs. Sappington's cervical spine, plaintiffs appeal a judgment dismissing their damage claims against the physician, Dr. Paul J. Hubbell, III, and his employer, Southern Pain and Anesthesia Consultants, LLC, with prejudice after a jury trial.
Plaintiffs alleged that Dr. Hubbell punctured Mrs. Sappington's spinal cord with a needle and injected anesthetic medication into it while performing medial branch block injections, causing her to suffer a cerebrospinal fluid leak that required surgical repair by another doctor, as well as other injuries to her spinal cord. Plaintiffs also alleged that Dr. Hubbell modified the procedure without Mrs. Sappington's consent by performing injections at a different level of her spine than the levels specified in the consent form she signed before undergoing the elective procedure.
The jury heard extensive and conflicting evidence on these issues and resolved the conflicts in defendants' favor. The assignments of error on appeal relate solely to the issue of informed consent and are governed by the manifest error standard of review. Finding no clear error in the jury's verdict, we affirm.
FACTUAL BACKGROUND AND ISSUES PRESENTED
Mrs. Sappington was referred to Dr. Hubbell, a pain management specialist, in November 2012 by her orthopedic surgeon, Dr. James Butler, for medial branch block injections to assist in diagnosing the cause of her lingering neck pain following cervical disc removal and fusion surgery by another doctor. Dr. Butler suspected that her pain was being caused by movement of the facet joints running along the back of her spine at the fusion site because the fusion was still healing and was not stable. The purpose of the medial branch blocks was to find out whether the injection of a local anesthetic into or near the nerves crossing the facet joints would relieve her pain temporarily. If it did, this would indicate that she was a good candidate for a longer-lasting pain management procedure to be done at a later date.
Mrs. Sappington signed a consent form authorizing Dr. Hubbell to perform medial branch block injections on both sides of her spine at levels C3-4, C4-5, C5-6 and C6-7, the levels involved in the fusion surgery and specified in Dr. Butler's referral order. Instead, based on information Dr. Hubbell learned about Mrs. Sappington's physical condition during the procedure, he injected both sides of her spine at levels C2-3 (just above the top of the fusion site) and C3-4. He did not inject any levels below C3-4.
Mrs. Sappington was sedated during the procedure and did not specifically consent to having injections at the C2-3 level. There was conflicting expert testimony as to whether certain standard language contained in the consent form she signed for injections at levels C3-4 through C6-7 authorized Dr. Hubbell to inject the C2-3 level without consulting with her. Mrs. Sappington awoke from the procedure with increased neck pain, numbness in her right arm, hand and leg, and a severe, intractable headache, which was later diagnosed as a spinal headache. She ultimately had surgery to repair a cerebrospinal fluid leak at level C2-3 of her spine, the level Dr. Hubbell added to the procedure he performed. After the leak was repaired, her headaches resolved, but she continued to have neck pain and numbness on her right side.
Plaintiffs do not dispute that Mrs. Sappington was informed of the material risks of injections at levels C3-4 through C6-7 of her spine. Those risks included nerve injury, numbness, pain, cerebrospinal fluid leak, and spinal headache, all of which she experienced after the procedure. She had experienced some, but not all, of those issues in the past, as documented in her medical records.
The material risks of injections at the level added by Dr. Hubbell were the same as the material risks of injections at the levels listed in the consent form, according to expert witnesses on both sides of the case. Plaintiffs assert on appeal that the risks at the C2-3 level were different for Mrs. Sappington because she did not have any fusion hardware there. However, they did not present any evidence at trial to support that assertion. At trial, plaintiffs claimed that Mrs. Sappington should have been given the opportunity to discuss Dr. Hubbell's proposed modification of the injection levels specified in Dr. Butler's referral order with Dr. Butler before deciding whether to consent to the modification.
Dr. Hubbell and other expert witnesses testified that there is a risk of injury with each injection and that Mrs. Sappington's overall risk was reduced by Dr. Hubbell's modification of the injection levels because he injected her spine only six times rather than ten times, as originally contemplated.
Dr. Hubbell performed one injection on each side of the spine at three cervical levels: C2, C3 and C4. The procedure, as originally planned, would have involved one injection on each side at five levels: C3, C4, C5, C6 and C7. The only level Dr. Hubbell injected that was not listed in the consent form was C2. However, throughout the record, the added level is referred to as C2-3. We refer to it in that manner for consistency.
Before trial, defendants filed a motion for partial summary judgment on the issue of informed consent. The trial court granted the motion as to the injections at level C3-4, which was listed in the consent form, and denied it as to the injections at level C2-3, which was not listed in the consent form.
The jury heard lengthy and conflicting testimony on the allegations of lack of informed consent to the injections at the C2-3 level, and on other issues that are not before us on appeal, including the manner in which Dr. Hubbell performed the injection procedure. After a six-day trial, the jury found that plaintiffs did not prove the standard of care by a preponderance of the evidence and did not prove that defendants failed to obtain Mrs. Sappington's informed consent to the injections at level C2-3 of her spine.
ASSIGNMENTS OF ERROR
On appeal, plaintiffs contend there was no reasonable basis for the jury's determination that they did not establish the standard of care for a pain management physician with respect to obtaining informed consent. They claim the expert witnesses on both sides agreed that the standard of care requires the doctor to discuss his intended medical plan of action with a patient before undertaking an invasive procedure, particularly when his plan differs from the procedure ordered by the referring doctor and consented to by the patient.
In their appellate brief, plaintiffs assigned as error the jury's broad finding that they "failed to establish the standard of care in this medical malpractice case." However, the only aspect of the standard of care that is addressed in other sections of their brief is the standard of care for obtaining informed consent to the injections at the C2-3 level. We limit our review to the assignment of error as briefed. Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4) ; Knobles v. Knobles , 17-233 (La. App. 5 Cir. 12/27/17), 236 So.3d 726 n. 1.
Plaintiffs also assert that the jury was clearly wrong in finding that they did not prove a lack of informed consent to the injections at level C2-3.
STANDARD OF REVIEW
The standard of care in a medical malpractice case is determined from the facts and circumstances of the case, including the evaluation of expert testimony. Fischer v. Megison , 07-1023 (La. App. 5 Cir. 5/27/08), 986 So.2d 95, 101.
The question of whether informed consent was or was not given is also a question of fact to be resolved by the factfinder, and the manifest error standard of review applies to such a finding on appellate review. Snider v. Louisiana Medical Mut. Ins. Co. , 13-0579 (La. 12/10/13), 130 So.3d 922, 938.
When the medical experts express opposing opinions on a factual issue such as what the standard of care is in a particular case or whether it was met, a reviewing court must give great deference to the trier of fact's evaluation of the conflicting expert opinions and assessment of witness credibility. Fischer , 986 So.2d at 101 ; Snider , 130 So.3d at 938-939. An appellate court may not re-weigh the evidence or substitute its own factual findings for those of the trial court even though it may have decided the case differently. Fischer , 986 So.2d at 101 ; Martin v. East Jefferson General Hosp. , 582 So.2d 1272, 1277 (La. 1991).
When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly wrong. Martin , 582 So.2d at 1277 ; Fischer , 986 So.2d at 102. An appellate court may not reverse a factfinder's factual determination unless it finds, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the factual determination, and the record establishes that the factual determination is clearly wrong or manifestly erroneous. Snider , 130 So.3d at 938 ; Fischer , 986 So.2d at 102. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Snider , 130 So.3d at 938.
BURDEN OF PROOF
In a medical malpractice action against a specialist such as Dr. Hubbell, the plaintiff has the burden of proving the standard of care ordinarily practiced by physicians in that specialty, the defendant's breach of the standard of care, and a causal connection between the breach and the plaintiff's claimed injuries. La. R.S. 9:2794(A) ; Fischer , 986 So.2d at 101.
A plaintiff who alleges lack of informed consent based on a physician's failure to disclose the material risks of a medical treatment or procedure must prove the existence of a material risk that should have been disclosed, the physician's failure to inform the patient of that risk, the realization of that risk, and a causal connection between the failure to inform the patient of the risk and the realization of the risk. Suarez v. Mando , 10-853 (La. App. 5 Cir. 3/29/10), 62 So.3d 131, 135, writ denied , 11-0885 (La. 6/17/11), 63 So.3d 1036. A risk is considered material if it could have influenced a reasonable person making a decision to give or withhold consent. Former La. R.S. 40:1299.39.5(D) (in effect at the time of Mrs. Sappington's procedure in November 2012); now La. R.S. 40:1157.1(D) ; Hondroulis v. Schuhmacher , 553 So.2d 398, 412 (La. 1989) (on rehearing).
Because of the likelihood that a patient who suffers adverse results after a medical treatment or procedure will believe, in hindsight, that those results were caused by inadequate disclosure of the risks, courts have adopted an objective standard of causation: whether a reasonable patient in the plaintiff's position would have consented to the treatment or procedure had the material information and risks been disclosed. Hondroulis , 553 So.2d at 412 ; Lugenbuhl v. Dowling , 96-1575 (La. 10/10/97), 701 So.2d 447, 454. If a reasonable person would have consented, the failure to disclose, however wrongful, is legally inconsequential. Lugenbuhl , 701 So.2d at 454. A patient has the absolute right, for whatever reason, to prevent unauthorized intrusions and treatments, but he or she can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been adequately informed. Id.
In this case, it is undisputed that Mrs. Sappington was informed of the material risks of injections at levels C3-4 through C6-7 of her spine—but not at level C2-3—before she consented to the procedure; that the material risks at level C2-3 were the same as the risks at the levels to which she consented; and that she suffered some of the disclosed risks after the procedure.
The narrow issues presented in this appeal are:
• Whether there is a reasonable evidentiary basis for the jury's finding that plaintiffs did not prove the standard of care for obtaining Mrs. Sappington's informed consent to injections at a level of her spine that was not specifically listed in the consent form; and
• Whether plaintiffs proved that a reasonable person would have withheld consent to injections at the C2-3 level, despite having consented to injections at other levels of her spine that presented the same risks, if he or she had been informed that those same risks existed with injections at C2-3.
FACTS
Consent Form
In the consent form signed by Mrs. Sappington, the procedure to which she consented was described as bilateral cervical medial branch blocks at levels C3-4, C4-5, C5-6 and C6-7. This description matched the description in Dr. Butler's referral order. The consent form disclosed a number of material risks of the procedure, including bleeding, infection, nerve injury, death, stroke, seizures, abscess, paralysis, numbness, pain, cerebrospinal fluid leak, and spinal headache.
Another section of the form contained standard language authorizing the doctor to perform the procedure described in the form, "including any additional procedures or services that may be deemed necessary or reasonable , including the administration of any general or regional anesthesia agent, IV conscious sedation, x-ray or other radiological services, and the disposal of any tissue removed during a diagnostic or surgical procedure." (Emphasis added.) Dr. Hubbell was accepted as an expert witness at trial. He and some of the other expert witnesses opined that this standard language in the consent form authorizes a doctor to change some aspect of the procedure as described in the consent form, based on information the doctor learns about the patient's condition during the procedure, if the doctor believes, in the exercise of good medical judgment, that the change is necessary or reasonable. However, the jury also heard other expert opinions on the meaning of this language and conflicting testimony as to whether the change in the injection levels in this case was medically necessary or reasonable. A more detailed discussion of the expert testimony appears below.
There was testimony at trial that this language was derived from and is consistent with Louisiana law and administrative regulations.
No one discussed with Mrs. Sappington, before she signed the consent form, the possibility that the doctor might modify the procedure as described in the form.
Dr. Hubbell's Modification of the Injection Levels
During the procedure, Dr. Hubbell used a fluoroscope—an x-ray camera that takes pictures and displays them on a monitor—to obtain visual images of the bony structures and the hardware in Mrs. Sappington's spine for assistance in positioning the needle for the injections. He testified that he initially intended to perform the injections at the levels specified in the consent form. He decided to modify the levels after seeing images of Mrs. Sappington's anatomy and fusion hardware on the fluoroscope monitor and considering that information along with the information contained in the written report of her recent CT scan, as well as her statements to him prior to the procedure that her pain was located in the back of her neck at the base of her skull.
Dr. Hubbell testified that he did not see in the fluoroscopic images any evidence of a loosening of screws or hardware that might account for facet pain at the C4-5 and C5-6 levels, which appeared to him to be stable and therefore unlikely to be causing pain. He did not think Mrs. Sappington would benefit from diagnostic injections at those levels.
At the C3 level, Dr. Hubbell saw a screw that was at a slightly different angle than the other screws. He said this concerned him because it could cause stress and instability at and above the C3 level. He also saw evidence of facet joint inflammation at C2-3 and some forward movement of the C2 vertebra onto C3 in the fluoroscopic images and in the CT scan report. There was expert testimony that the fluoroscopic images may reveal information about the patient's condition that is not apparent from a CT scan.
Dr. Hubbell testified that the facet nerves at levels C2-3 and C3-4 send pain signals to the skin of the neck and the back of the skull, the areas where Mrs. Sappington had reported having pain. Although there was also evidence of forward movement at C6-7, Dr. Hubbell thought it would be best to inject the two contiguous upper levels (C2-3 and C3-4) to see if that relieved Mrs. Sappington's pain. If it did not, he said that would indicate that some of her pain may be coming from the lower level (C6-7), which he could inject for diagnostic purposes later.
Dr. Hubbell gave this explanation for his decision to modify the injection levels: "I felt that I had to use my medical judgment at this point to give this patient the best chance for a good diagnostic test. In other words, a test which would most likely identify the most likely cause of pain, based on where she said her pain was and based on what I'm seeing in this film." He stated that his modification of the procedure to include only six injections rather than ten reduced Mrs. Sappington's overall level of risk by 40 percent.
Dr. Hubbell testified that if he had stopped the procedure to obtain Mrs. Sappington's consent to injecting the C2-3 level, it would have been necessary to reschedule the procedure for another day because consent cannot be obtained from a patient who has been sedated. In other words, Dr. Hubbell could not have awakened Mrs. Sappington, discussed the proposed modification with her, and immediately resumed the procedure. Dr. Hubbell acknowledged that if he had stopped the procedure to discuss with Mrs. Sappington his reasons for concluding that the injection levels listed in Dr. Butler's referral order should be modified, it would have been reasonable for her to consult with Dr. Butler about the difference of opinion between the two doctors.
Mrs. Sappington knew that Dr. Butler had ordered the injections at the specific levels of her spine where she had undergone the fusion. She also knew that those were the levels listed in the consent form she signed. She testified that she did not consent to being injected at any other levels. She was not asked whether she would have consented to injections at the C2-3 level or consulted with Dr. Butler before deciding whether to undergo injections at that level if she had known that Dr. Hubbell's opinion about which levels should be injected differed from Dr. Butler's.
Decision of Medical Review Panel
As required by law, Mrs. Sappington and her husband filed a medical malpractice complaint against Dr. Hubbell and Southern Pain and Anesthesia Consultants before filing suit. They alleged that Mrs. Sappington had not consented to the injections at the C2-3 level; that Dr. Hubbell injured her spinal cord during the procedure, causing the cerebrospinal fluid leak and other injuries; and that the post-procedure care provided by defendants was inadequate.
Former La. R.S. 40:1299.47 ; now La. R.S. 40:1231.8. Pontchartrain Surgery Center was also named as a defendant before the medical review panel. It is not a party to the lawsuit.
The medical review panel was composed of three pain management physicians. The panel concluded that the procedure performed by Dr. Hubbell was unlikely to have caused Mrs. Sappington's spinal cord trauma and that the post-procedure care she received was adequate.
With respect to informed consent, the panel concluded that defendants failed to comply with the appropriate standard of care because the procedure was performed at levels C2-C4, but the patient was consented for the procedure at levels C3-C7. However, the panel did not consider this to be a factor in Mrs. Sappington's damages because "the procedure performed on C2-C3 did not pose any additional risks that were not disclosed in the form provided to the patient."
Expert Witnesses
At trial, both sides presented expert testimony on the standard of care for obtaining informed consent, both in general and with respect to a doctor's modification of a consented procedure. The expert witnesses also testified as to whether there was a reasonable medical basis for the modification in this case. We shall discuss the expert testimony on these two issues separately.
Dr. Chad Domangue and Dr. Andrew J. Engel testified as expert witnesses for plaintiffs. Plaintiffs also questioned Dr. Hubbell about his opinions in the case on cross-examination.
Dr. Domangue was accepted as an expert in neurology and pain management. He practices in Covington and Hammond, Louisiana. Dr. Engel, an expert in anesthesiology, pain medicine and patient safety, is based in Chicago, Illinois.
Defendants presented expert testimony from Dr. Hubbell, Dr. Jimmy Nolan Ponder, Jr., and Dr. John Markman. Dr. Ponder was a member of the medical review panel.
Dr. Hubbell was accepted as an expert witness in anesthesiology, pain management (diagnosis and treatment of pain, primarily with medications), and interventional pain management (diagnosis and treatment of pain with injections and other techniques). Dr. Ponder, an expert in anesthesiology and pain management, practices in Houma and New Iberia, Louisiana. Dr. Markman is a New York-based expert in neurology, pain management and best practices in pain management.
Expert Testimony on Standard of Care
The expert witnesses on both sides of the case agreed that the standard of care with respect to informed consent requires the doctor to meet with the patient before the procedure to discuss the procedure and any material risks associated with it. There is no dispute that this standard was met with respect to the injection procedure as described in the consent form Mrs. Sappington signed (bilateral medial branch blocks at levels C3-4 through C6-7). However, the experts gave conflicting testimony on the standard of care for obtaining informed consent to a modification of the injection levels listed in the consent form. Despite their differences of opinion on that issue, the experts generally agreed that a doctor must consider the risks and benefits to the patient of a proposed modification.
Preparation of Consent Form
Some of the expert testimony focused on how the consent form was prepared. The experts disagreed as to whether the specific injection levels must be listed in the consent form and whether a pain management doctor may rely on the opinion of a referring doctor in another field, such as Dr. Butler, as to which levels should be injected when describing the planned procedure in the consent form.
Plaintiffs' experts opined that the specific injection levels must be listed in the consent form. They testified that Dr. Hubbell should have done more to determine whether the levels listed in the referral order were appropriate before Mrs. Sappington was asked to consent to injections at those levels.
The defense experts disagreed. Dr. Markman testified that regardless of what information a doctor has obtained beforehand, the direction of the beam is different with fluoroscopic images than it is with a CT scan, and what the doctor sees on fluoroscopy "has implications for how you do the case."
Dr. Ponder testified that the standard of care does not require the specific injection levels to be listed in the consent form. He stated that he does not list them in his own practice for three reasons: most patients do not understand the significance of the levels; there is considerable overlap in the pain patterns from facet nerves at adjacent levels of the spine; and changing the injection level does not pose additional risks to the patient. Modification based on Information Obtained during Procedure
Dr. Ponder was a member of the medical review panel, which found that Dr. Hubbell breached the standard of care by injecting a level not listed in the consent form. It appears that the panel reached this conclusion because the consent form in this case listed specific levels for the injections.
The jury also heard expert testimony about the meaning of the language in the consent form that allows the doctor to perform the procedure described in the form, "including any additional procedures or services that may be deemed necessary or reasonable." For simplicity, we refer to this as "the standard language."
The expert witnesses on both sides of the case generally agreed that the standard language in the consent form would allow a doctor to modify the injection levels under certain circumstances, but their opinions appeared to differ in some respects as to what those circumstances are.
Plaintiffs' expert, Dr. Engel, agreed with Dr. Hubbell that the injection levels could be changed if the doctor deems the change to be "necessary or reasonable," as stated in the consent form, based on what he learns about the patient's condition during the procedure. Dr. Engel disagreed with Dr. Hubbell as to whether the change in Mrs. Sappington's case was necessary or reasonable.
Plaintiffs' expert, Dr. Domangue, was one of the doctors Mrs. Sappington consulted after this procedure. He had previously practiced with Dr. Hubbell at Pontchartrain Surgery Center and was familiar with the consent form used in this case. Dr. Domangue testified that the standard language in the consent form would allow the doctor to "call an audible," meaning to change some aspect of the consented procedure without consulting with the patient, if the change is reasonable and medically justified, but only in an "emergent" situation, which appears to mean a situation in which the doctor learns something about the patient's anatomy during the procedure that he did not know and could not have anticipated before the consent form was signed.
Elsewhere in his testimony, Dr. Domangue used a different term, opining that Dr. Hubbell's modification of the injection levels violated the standard of care because this was not an "emergency" situation.
A defense expert, Dr. Markman, testified that the standard of care permits a doctor to modify the injection levels listed in the consent form based on what he learns about the patient's condition during the procedure. He stated that the doctor should disclose that possibility to the patient before obtaining the patient's consent. Another defense expert, Dr. Ponder, did not think that such a disclosure would be necessary if the modification does not present any additional risk to the patient.
Plaintiffs did not call any member of the medical review panel as a witness, despite the panel's findings that Dr. Hubbell breached the standard of care for obtaining informed consent to the injections at level C2-3 because that level was not listed in the consent form. It appears from those findings that the panel did not consider the injections at C2-3 to be covered by the standard language in the consent form, although that issue is not addressed in the panel's written opinion.
Expert Testimony on Medical Basis for the Modification
Dr. Domangue testified that there was no medical justification for Dr. Hubbell's modification of the injection levels. He did not consider this to be an "emergent" situation because he thought Dr. Hubbell should have done more to familiarize himself with Mrs. Sappington's physical condition before starting the procedure. He also testified that this was not an "emergency" situation because medial branch blocks are an elective procedure. He opined that Dr. Hubbell should have rescheduled the procedure once he decided that the C2-3 level should be injected rather than proceeding without the patient's consent.
Dr. Engel did not consider the medial branch blocks at the C2-3 level to be necessary or reasonable because Mrs. Sappington did not report headaches as one of her symptoms before the procedure. He stated that the facet nerves at C2-3 do not cause neck pain—they only cause headaches—and there would be no benefit to the patient from blocking those nerves if the patient came in headache-free.
Dr. Markman and Dr. Ponder opined that Dr. Hubbell's decision to inject the C2-3 level based on what he saw on the fluoroscope was medically sound because that level was adjacent to the top of the fusion site (C3-4), and the facet nerves at adjacent levels of the spine overlap. In their view, the injections at the C2-3 level could have provided some benefit to Mrs. Sappington in diagnosing the cause of her pain even though she had not reported headaches as one of her symptoms. Although injections at any level involve some risk, they opined that the risk of injury was lessened by the reduction in the total number of injections.
ANALYSIS
Proof of Standard of Care for Obtaining Informed Consent to Modification
The jury found that plaintiffs failed to prove the applicable standard of care by a preponderance of the evidence. The jury was not asked to specify which aspect of the case this finding related to, i.e. , to the standard of care for obtaining informed consent, or the standard of care for the performance of the procedure. The limited issue on appeal is whether there was sufficient proof of the standard of care for obtaining informed consent to the injections at the C2-3 level.
See footnote 2 above regarding the scope of this assignment of error.
Plaintiffs contend they satisfied their burden of proving the standard of care for obtaining informed consent because the expert witnesses on both sides agreed that the standard of care requires the doctor to discuss his intended medical plan of action with a patient before undertaking an invasive procedure. While the experts clearly agreed on that as a general proposition, they gave conflicting testimony about various aspects of the standard of care for obtaining informed consent to a modification of the injection levels listed in the consent form, as set forth above.
In our review of the evidence, we must defer to the jury's assessment of its probative value and evaluation of witness credibility. In light of the divergent evidence regarding the standard of care for obtaining informed consent to a modification of the injection levels listed in the consent form, we find that there is a reasonable basis in the record for the jury's conclusion that plaintiffs did not meet their burden of proving the standard of care for obtaining informed consent to the injections at the C2-3 level. See and compare Wood v. Humphries , 11-2161 (La. App. 1 Cir. 10/9/12), 103 So.3d 1105, writ denied , 12-2712 (La. 2/22/13), 108 So.3d 769, and Mladenoff v. Louisiana Medical Mut. Ins. Co. , 13-477 (La. App. 5 Cir. 3/26/14), 139 So.3d 8, writ denied , 14-0862 (La. 6/20/14), 141 So.3d 813.
In Wood , the expert witnesses disagreed on the standard of care. The jury found the plaintiffs did not prove the standard of care. On appeal, the trial court's judgment notwithstanding the verdict was reversed, and the jury verdict was reinstated. 103 So.3d at 1115-116. In Mladenoff , the jury's finding of a lack of proof of the standard of care was vacated because the experts on both sides agreed on the standard of care. 139 So.3d at 12-13. Proof of Failure to Obtain Informed Consent to Modification
Plaintiffs contend the jury was clearly wrong in finding that they did not prove a lack of informed consent to the injections at the C2-3 level. They note that Dr. Hubbell did not discuss with Mrs. Sappington the possibility of injections at the C2-3 level or disclose to her what the risks of injections at that level would be. They contend his failure to do so resulted in the realization of a number of material risks, including a spinal headache, numbness, neck pain, and the need for surgery to repair a cerebrospinal fluid leak at level C2-3.
The evidence as to whether informed consent was obtained overlaps in some respects with the evidence on the standard of care for obtaining informed consent. The jury's finding that plaintiffs did not prove a lack of informed consent could have been based on its crediting of defendants' evidence that Dr. Hubbell's change in the injection levels was covered by the standard language in the consent form and that he had a reasonable medical basis for the change. There is ample evidence in the record to support these factual determinations, which we cannot say are clearly wrong. Snider , 130 So.3d at 938 ; Fischer , 986 So.2d at 102.
However, even if the jury had found plaintiffs' evidence on the standard of care to be persuasive, and even if the jury found sufficient proof of a failure to disclose the material risks of injections at the C2-3 level and the realization of some of those risks, plaintiffs were also required to prove that a reasonable person's consent to injections at level C2-3 would have been withheld if the risks of injections at that level had been disclosed. Former La. R.S. 40:1299.39.5(D) ; now La. R.S. 40:1157.1(D) ; Hondroulis , 553 So.2d at 412 ; Lugenbuhl , 701 So.2d at 454.
The jury was instructed on the causation requirement and the objective standard to be applied. The jury's finding that plaintiffs did not prove a lack of informed consent could have been based on the evidence that there was no additional risk to the injections at level C2-3 and that a reasonable person in Mrs. Sappington's position would have consented to them.
The consent form signed by Mrs. Sappington for medial branch block injections at C3-4 through C6-7 disclosed a number of potentially serious material risks of the procedure, including risks that materialized after her procedure. Despite numerous differences of opinion among the expert witnesses on other issues, there was undisputed testimony from experts on both sides of the case that the risks of the procedure at the C2-3 level are the same as the risks at C3-4 through C6-7. No evidence was presented that the risks at the C2-3 level were greater for Mrs. Sappington because she did not have any fusion hardware there.
Although Dr. Hubbell testified that it would have been reasonable for Mrs. Sappington to have consulted with Dr. Butler before deciding whether to have injections at the C2-3 level, Mrs. Sappington was not asked whether she would have done so had she been given the opportunity. Dr. Ponder stated it would have been reasonable for her to do that if she knew exactly what levels she was having injected and for what reason, but he said most patients do not understand the significance of the injection levels.
Dr. Ponder and Dr. Markman corroborated Dr. Hubbell's testimony that the facet joints at the C2-3 level could have contributed to the neck pain Mrs. Sappington was experiencing even though she did not report headaches as one of her symptoms. All of the expert witnesses who knew Dr. Butler spoke highly of him, but they noted that he specializes in orthopedic surgery, which involves the treatment of bone disorders, and that he may not have been aware of some of the subtleties within the specialty of pain management.
Based on the evidence presented, we find no basis for disturbing the jury's conclusion that plaintiffs did not meet their burden of proving a lack of informed consent to the injections at the C2-3 level. See and compare Little v. Boston Scientific Corp. , 08-271 (La. App. 5 Cir. 1/13/09), 8 So.3d 591, writ denied , 09-0546 (La. 4/17/09), 6 So.3d 801, and Steele v. St. Paul Fire & Marine Ins. Co. , 371 So.2d 843 (La. App. 3 Cir. 1979), writ denied , 374 So.2d 658 (La. 1979).
In both of those cases, the issue presented on appeal was whether the jury was clearly wrong in finding that the doctor had disclosed sufficient information to the patient to obtain informed consent. In Little , the jury's verdict in the doctor's favor was affirmed because there was conflicting evidence on that issue. 8 So.3d at 599. In Steele , the jury's verdict for the doctor was reversed because the essentially uncontradicted evidence clearly showed a failure of adequate disclosure, and the evidence further showed that a reasonable person would not have consented to the surgery had she been properly informed. 371 So.2d at 849-851.
In this case, the jury was required to determine whether plaintiffs proved that a reasonable person who had consented to undergoing a diagnostic procedure presenting specific risks at certain levels of her spine would have withheld consent to undergoing the same procedure with the same risks at an adjacent level of her spine that could have been contributing to her pain. The jury was presented with two permissible views of the evidence on this issue and found defendants' version to be more persuasive, as was its prerogative. Fischer , 986 So.2d at 102. The record supports the conclusion that a reasonable person would not have withheld consent under those circumstances.
CONCLUSION
There is a reasonable evidentiary basis for the jury's determinations that plaintiffs failed to prove the standard of care for obtaining informed consent to the injections at the C2-3 level and failed to prove a lack of informed consent to those injections. Based on our review of the record, we cannot say the jury's findings are clearly wrong. Accordingly, the judgment dismissing the action with prejudice is affirmed, at plaintiffs' cost.