HLS 12RS-720 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 866
BY REPRESENTATIVE ABRAMSON
HEALTH CARE: Provides relative to informed consent for medical treatment and creates
the La. Medical Disclosure Panel
AN ACT1
To amend and reenact Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes2
of 1950, to be comprised of R.S. 40:1299.39.5 through 1299.39.7, and R.S.3
40:1299.58(C), 1299.131(A)(3), and 1300.11, relative to consent to medical4
treatment; to provide for methods by which informed consent may be obtained; to5
provide for definitions; to create the Louisiana Medical Disclosure Panel; to provide6
for membership, powers, and duties of such panel; to provide for medical disclosure7
lists; to provide for exceptions to obtaining informed consent; to provide for the8
promulgation of rules and regulations; to provide for an effective date; and to9
provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of12
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, and R.S. 40:1299.58(C),13
1299.131(A)(3), and 1300.11 are hereby amended and reenacted to read as follows: 14
PART XXII. UNIFORM CONSENT LAW15
§1299.40 1299.39.5. Consent to medical treatment; exception; availability of lists16
to establish necessity and degree methods of obtaining consent17
A.(1) Notwithstanding any other law to the contrary, written consent to18
medical treatment means the voluntary permission of a patient, through signature,19
marking, or affirmative action through electronic means pursuant to R.S.20 HLS 12RS-720 ORIGINAL
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40:1299.40.1, to any medical or surgical procedure or course of procedures which1
sets forth in general terms the nature and purpose of the procedure or procedures,2
together with the known risks, if any, of death, brain damage, quadriplegia,3
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars4
associated with such procedure or procedures; acknowledges that such disclosure of5
information has been made and that all questions asked about the procedure or6
procedures have been answered in a satisfactory manner; and is evidenced by a7
signature, marking, or affirmative action through electronic means, by the patient for8
whom the procedure is to be performed, or if the patient for any reason lacks legal9
capacity to consent, by a person who has legal authority to consent on behalf of such10
patient in such circumstances. Such consent shall be presumed to be valid and11
effective, in the absence of proof that execution of the consent was induced by12
misrepresentation of material facts.13
(2) In addition to the information required to be disclosed in Paragraph (1)14
of this Subsection, where the medical treatment involves the surgical implantation15
of "Norplant" contraceptive devices, the explanation to the patient shall include the16
known and significant or other material risks, the known adverse results, and17
alternative methods of contraception.18
B. Except as provided in Subsection A of this Section, no evidence shall be19
admissible to modify or limit the authorization for performance of the procedure or20
procedures set forth in such consent.21
C. Where consent to medical treatment from a patient, or from a person22
authorized by law to consent to medical treatment for such patient, is secured other23
than in accordance with Subsection A above, the explanation to the patient or to the24
person consenting for such patient shall include the matters set forth in Paragraph (1)25
of Subsection A above, and an opportunity shall be afforded for asking questions26
concerning the procedures to be performed which shall be answered in a satisfactory27
manner. Such consent shall be valid and effective and is subject to proof according28
to the rules of evidence in ordinary cases.29 HLS 12RS-720 ORIGINAL
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D.(1) Notwithstanding this Section or any other law to the contrary,1
whenever it is determined by the hospital infection control committee or equivalent2
body that an agent or employee of a hospital, or a physician having privileges at the3
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner4
as to create any risk that the agent, employee, or physician may become infected with5
the human immunodeficiency virus or other infectious agent if the patient is infected6
with the human immunodeficiency virus or other infectious agent, in accordance7
with the infectious disease exposure guidelines of the Centers for Disease Control8
or the infectious disease exposure standards of the health care facility where the9
exposure occurred, then the hospital infection control committee may, without the10
consent of the patient, conduct such tests on blood previously drawn or body fluids11
previously collected as are necessary to determine whether the patient is, in fact,12
infected with the virus or other agent believed to cause acquired immune deficiency13
syndrome or other infectious disease. If no previously drawn blood or collected14
bodily fluids are available or are suitable, the hospital may order, without the consent15
of the patient, that blood, bodily fluids, or both be drawn and collected from the16
patient to conduct the necessary tests.17
(2) Notwithstanding this Section or any other law to the contrary, whenever18
it is determined by the infectious disease control officer of any law enforcement, fire19
service, or emergency medical service agency or organization that an agent or20
employee of the agency or organization has been exposed to the blood or bodily21
fluids of a patient while rendering emergency medical services, transporting, or22
treating an ill or injured patient in such a manner as to create any risk that the agent23
or employee may become infected with the human immunodeficiency virus or other24
infectious agent if the patient is infected with the human immunodeficiency virus or25
other infectious agent, in accordance with the infectious disease exposure guidelines26
of the Centers for Disease Control or the infectious disease exposure standards of the27
agency or organization, then the infectious disease control officer of the agency or28
organization may present the facts to the infection control committee of the hospital29 HLS 12RS-720 ORIGINAL
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or other health care facility to which the patient has been transported. If the hospital1
infection control committee agrees that there has been a potential exposure to the2
agency or organization personnel, then the hospital infection control committee may,3
while the patient is in such hospital and without the consent of the patient, conduct4
such tests as are provided for in R.S. 40:1299.40(D)(1).5
(3) The results of the test shall not become a part of the patient's medical6
record and shall be confidential, except that the hospital may inform the exposed7
employee, agent, or physician, or the infectious disease control officer of the law8
enforcement, fire service, or emergency medical service agency of the results of the9
test.10
(4) In the event that the test is performed, and the results of the test are11
positive, the hospital shall inform the patient of the results and shall provide such12
follow-up testing and counseling as may be required according to the accepted13
standard of medical care.14
(5) The patient shall not be charged for any tests performed under this15
Subsection.16
(6) Nothing herein shall be construed to require the hospital to perform the17
test described herein.18
E.(1) As used in this Subsection, "secretary" means the secretary of the19
Department of Health and Hospitals.20
(2)(a) D. In a suit against a physician or other health care provider involving21
a health care liability or medical malpractice claim which is based on the failure of22
the physician or other health care provider to disclose or adequately to disclose the23
risks and hazards involved in the medical care or surgical procedure rendered by the24
physician or other health care provider, the only theory on which recovery may be25
obtained is that of negligence in failing to disclose the risks or hazards that could26
have influenced a reasonable person in making a decision to give or withhold27
consent.28 HLS 12RS-720 ORIGINAL
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(b) E. Consent to medical treatment may be evidenced according to the1
provisions of Subsections A and C of this Section or, as an alternative, a physician2
or other health care provider may choose to avail himself of the lists established by3
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this4
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's5
consent to medical treatment.6
(3) The secretary shall determine which risks and hazards related to medical7
care and surgical procedures must be disclosed by a physician or other health care8
provider to a patient or person authorized to consent for a patient and to establish the9
general form and substance of such disclosure.10
(4)(a) To the extent feasible, the secretary shall identify and make a thorough11
examination of all medical treatments and surgical procedures in which physicians12
and other health care providers may be involved in order to determine which of those13
treatments and procedures do and do not require disclosure of the risks and hazards14
to the patient or person authorized to consent for the patient.15
(b) The secretary shall prepare separate lists of those medical treatments and16
surgical procedures that do and do not require disclosure and for those treatments17
and procedures that do require disclosure shall establish the degree of disclosure18
required and the form in which the disclosure will be made.19
(c) Lists prepared under Subparagraph (b) of this Paragraph together with20
written explanations of the degree and form of disclosure shall be promulgated21
according to the Administrative Procedure Act. The form of the disclosure and22
manner in which such disclosure will be made shall be subject to legislative23
oversight by the House and Senate health and welfare committees. The lists24
compiled and published and rules promulgated relative to the form and manner of25
disclosure according to the provisions of this Subsection and evidence of such26
disclosures or failure to disclose by a physician or other health care provider as27
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health28 HLS 12RS-720 ORIGINAL
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care liability suit or medical malpractice claim involving medical care rendered or1
a surgical procedure performed on or after March 1, 1991.2
(d) At least annually, or at such other period as the secretary may determine,3
the secretary shall identify and examine any new medical treatments and surgical4
procedures that have been developed since its last determinations, shall assign them5
to the proper list, and shall establish the degree of disclosure required and the form6
in which the disclosure shall be made. The secretary shall also review and examine7
such treatments and procedures for the purpose of revising lists previously published.8
These determinations shall be published in the same manner as described in9
Subparagraph (c) of this Paragraph.10
(5) Before a patient or a person authorized to consent for a patient gives11
consent to any medical or surgical procedure that appears on the list requiring12
disclosure, the physician or other health care provider shall disclose to the patient,13
or person authorized to consent for the patient, the risks and hazards involved in that14
kind of care or procedure. A physician or other health care provider may choose to15
utilize the lists prepared by the secretary and shall be considered to have complied16
with the requirements of this Subsection if disclosure is made as provided in17
Paragraph (6) of this Subsection.18
(6) Consent to medical care that appears on the secretary's list requiring19
disclosure shall be considered effective under this Subsection, if it is given by the20
patient or a person authorized to give the consent and by a competent witness, and21
if the consent specifically states, in such terms and language that a layman would be22
expected to understand, the risks and hazards that are involved in the medical care23
or surgical procedure in the form and to the degree required by the secretary under24
Paragraph (4) of this Subsection.25
(7)(a) In a suit against a physician or other health care provider involving a26
health care liability or medical malpractice claim which is based on the negligent27
failure of the physician or other health care provider to disclose or adequately to28 HLS 12RS-720 ORIGINAL
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disclose the risks and hazards involved in the medical care or surgical procedure1
rendered by the physician or other health care provider:2
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection3
and the failure to disclose based on inclusion of any medical care or surgical4
procedure on the secretary's list for which disclosure is not required shall be5
admissible in evidence and shall create a rebuttable presumption that the6
requirements of Paragraphs (5) and (6) of this Subsection have been complied with,7
and this presumption shall be included in the charge to the jury; and8
(ii) The failure to disclose the risks and hazards involved in any medical care9
or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this10
Subsection shall be admissible in evidence and shall create a rebuttable presumption11
of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5)12
and (6) of this Subsection, and this presumption shall be included in the charge to the13
jury; but failure to disclose may be found not to be negligent, if there was an14
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not15
medically feasible to make a disclosure of the kind that would otherwise have been16
negligence.17
(b) If medical care is rendered or a surgical procedure performed with18
respect to which the secretary has not made a determination regarding a duty of19
disclosure, the physician or other health care provider is under the general duty to20
disclose otherwise imposed by this Section.21
(c) In order to be covered by the provisions of this Subsection, the physician22
or other health care provider who will actually perform the contemplated medical or23
surgical procedure shall:24
(i) Disclose the risks and hazards in the form and to the degree required by25
the secretary;26
(ii) Disclose additional risks, if any, particular to a patient because of a27
complicating medical condition, either told to the physician or other health care28 HLS 12RS-720 ORIGINAL
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provider by the patient or his representative in a medical history of the patient or1
reasonably discoverable by such physician or other health care provider;2
(iii) Disclose reasonable therapeutic alternatives and risks associated with3
such alternatives;4
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the5
lists formulated by the secretary; and6
(v) Provide an opportunity to ask any questions about the contemplated7
medical or surgical procedure, risks, or alternatives and acknowledge in writing that8
he answered such questions, to the patient or other person authorized to give consent9
to medical treatment, receipt of which shall be acknowledged in writing.10
F. Notwithstanding the provisions of Subsection E of this Section, consent11
for dental treatment rendered by dentists not performing oral and maxillofacial12
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.13
40:1299.131.14
§ 1299.39.6. Louisiana Medical Disclosure Panel; creation; membership; powers;15
duties16
A. As used in this Section, the following terms shall mean:17
(1) "Panel" means the Louisiana Medical Disclosure Panel.18
(2) "Department" means the Department of Health and Hospitals.19
B.(1) The Louisiana Medical Disclosure Panel is hereby created within the20
department to determine which risks and hazards related to medical care and surgical21
procedures must be disclosed by a physician or other health care provider to a patient22
or person authorized to consent for a patient and to establish the general form and23
substance of such disclosure.24
(2) The panel shall be comprised of the following members who shall be25
appointed by the governor and submitted to the Senate for confirmation:26
(a) One member licensed to practice dentistry who specializes in oral and27
maxillofacial surgery who shall be selected from a list of nominees submitted to the28
governor by the Louisiana Society of Oral and Maxillofacial Surgeons.29 HLS 12RS-720 ORIGINAL
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(b) Four members licensed to practice law in this state of whom three shall1
be selected from a list of nominees submitted to the governor by the Louisiana2
Association of Justice and one shall be selected from a list of nominees submitted3
to the governor by the Louisiana Defense Counsel Association.4
(c) Six members licensed to practice medicine in this state who shall be5
selected from a list of nominees submitted to the governor by the Louisiana State6
Medical Society.7
C. The initial members of the panel shall have the following terms:8
(1) The dentist who specializes in oral and maxillofacial surgery, one9
attorney, and two physicians shall serve a term of two years, or until a successor is10
appointed and qualified.11
(2) Two attorneys and two physicians shall serve a term of four years, or12
until a successor is appointed and qualified.13
(3) One attorney and two physicians shall serve a term of six years, or until14
a successor is appointed and qualified.15
(4) Thereafter, at the expiration of the term of each member of the panel, the16
governor shall appoint a successor and such successor shall serve for a term of six17
years, or until his successor is appointed and qualified.18
D. Any member of the panel who is absent for three consecutive meetings19
without the consent of a majority of the panel at each such meeting may be removed20
by the governor at the request of the panel present submitted in writing and signed21
by the chairman. Upon the death, resignation, or removal of any member, the22
governor shall fill the vacancy by selection for the unexpired portion of the term.23
E. Members of the panel shall not be entitled to per diem or any other24
compensation for their service, but shall be entitled to reimbursement of any25
necessary and reasonable expense incurred in the performance of their duties on the26
panel, including travel expenses.27
F. Meetings of the panel shall be held at the call of the chairman or on28
petition of at least three members of the panel.29 HLS 12RS-720 ORIGINAL
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G. At the first meeting of the panel each year after its members assume their1
positions, the panelists shall select one of the panel members to serve as chairman2
and one of the panel members to serve as vice chairman, and each such officer shall3
serve for a term of one year. The chairman shall preside at meetings of the panel,4
and in his absence, the vice chairman shall preside.5
H. The department shall provide administrative assistance to and serve as the6
staff for the panel.7
I. The governor shall appoint the initial members of the panel no later than8
October 1, 2012, and the panel shall convene its first meeting no later than9
November 1, 2012.10
J.(1) To the extent feasible, the panel shall identify and make a thorough11
examination of all medical treatments and surgical procedures in which physicians12
and other health care providers may be involved in order to determine which of those13
treatments and procedures do and do not require disclosure of the risks and hazards14
to the patient or person authorized to consent for the patient. The panel, initially,15
shall examine all existing medical disclosure lists and update and repromulgate those16
lists under the authority vested in this Section. The dentist member of the panel shall17
only participate in the panel's deliberation, determination, and preparation of lists of18
dental treatments and procedures that do and do not require disclosure.19
(2) The panel shall prepare separate lists of those medical treatments and20
surgical procedures that do and do not require disclosure and for those treatments21
and procedures that do require disclosure shall establish the degree of disclosure22
required and the form in which the disclosure will be made.23
(3) Lists prepared pursuant to the provisions of this Section together with24
written explanations of the degree and form of disclosure shall be promulgated in25
accordance with the provisions of the Administrative Procedure Act. The form of26
the disclosure and manner in which such disclosure will be made shall be subject to27
legislative oversight by the House and Senate health and welfare committees.28 HLS 12RS-720 ORIGINAL
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K. The lists compiled and published and rules promulgated relative to the1
form and manner of disclosure according to the provisions of this Subsection and2
evidence of such disclosures or failure to disclose by a physician or other health care3
provider as provided in this Section, shall be admissible in a health care liability suit4
or medical malpractice claim involving medical care rendered or a surgical5
procedure performed.6
L. At least annually, or at such other period as the panel may determine, the7
panel shall identify and examine any new medical treatments and surgical procedures8
that have been developed since its last determinations, shall assign them to the9
proper list, and shall establish the degree of disclosure required and the form in10
which the disclosure shall be made. The panel shall also review and examine such11
treatments and procedures for the purpose of revising lists previously published.12
These determinations shall be published in the same manner as described in13
Paragraph (J)(3) of this Section.14
M. Before a patient or a person authorized to consent for a patient gives15
consent to any medical or surgical procedure that appears on the panel's list requiring16
disclosure, the physician or other health care provider shall disclose to the patient,17
or person authorized to consent for the patient, the risks and hazards involved in that18
kind of care or procedure. A physician or other health care provider may choose to19
utilize the lists prepared by the panel and shall be considered to have complied with20
the requirements of this Subsection if disclosure is made as provided in Subsection21
N of this Section.22
N. Consent to medical care that appears on the panel's list requiring23
disclosure shall be considered effective pursuant to the provisions of this Subsection,24
if it is given in writing, signed by the patient or a person authorized to give the25
consent and by a competent witness, and if the written consent specifically states, in26
such terms and language that a layman would be expected to understand, the risks27
and hazards that are involved in the medical care or surgical procedure in the form28
and to the degree required by the panel pursuant to the provisions of this Section.29 HLS 12RS-720 ORIGINAL
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O.(1) All the following requirements shall apply in a suit against a physician1
or other health care provider involving a health care liability or medical malpractice2
claim which is based on the negligent failure of the physician or other health care3
provider to disclose or adequately to disclose the risks and hazards involved in the4
medical care or surgical procedure rendered by the physician or other health care5
provider:6
(a) Both the disclosure made as provided in Subsection M of this Section and7
the failure to disclose based on inclusion of any medical care or surgical procedure8
on the panel's list for which disclosure is not required shall be admissible in evidence9
and shall create a rebuttable presumption that the requirements of Subsections M and10
N of this Section have been complied with and this presumption shall be included in11
the charge to the jury.12
(b) The failure to disclose the risks and hazards involved in any medical care13
or surgical procedure required to be disclosed under Subsections M and N of this14
Section shall be admissible in evidence and shall create a rebuttable presumption of15
a negligent failure to conform to the duty of disclosure set forth in Subsections M16
and N of this Section, and this presumption shall be included in the charge to the17
jury; but failure to disclose may be found not to be negligent, if there was an18
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not19
medically feasible to make a disclosure of the kind that would otherwise have been20
negligence.21
(2) If medical care is rendered or a surgical procedure performed with22
respect to which the panel has not made a determination regarding a duty of23
disclosure, the physician or other health care provider is under the general duty to24
disclose otherwise imposed by R.S. 40:1299.39.5.25
P. In order to be covered by the provisions of this Subsection, the physician26
or other health care provider who will actually perform the contemplated medical or27
surgical procedure shall:28 HLS 12RS-720 ORIGINAL
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(1) Disclose the risks and hazards in the form and to the degree required by1
the panel.2
(2) Disclose additional risks, if any, particular to a patient because of a3
complicating medical condition, either told to the physician or other health care4
provider by the patient or his representative in a medical history of the patient or5
reasonably discoverable by such physician or other health care provider.6
(3) Disclose reasonable therapeutic alternatives and risks associated with7
such alternatives.8
(4) Relate that he is obtaining a consent to medical treatment pursuant to the9
lists formulated by the Louisiana Medical Disclosure Panel.10
(5) Provide an opportunity to ask any questions about the contemplated11
medical or surgical procedure, risks, or alternatives and acknowledge in writing that12
he answered such questions, to the patient or other person authorized to give consent13
to medical treatment, receipt of which shall be acknowledged in writing.14
Q. The department shall maintain a searchable database of all current15
medical disclosure lists and make such database available to the public on the16
website of the department.17
§1299.39.7. Exception to obtaining informed consent; human immunodeficiency18
virus or other infectious agents19
A. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law to20
the contrary, whenever it is determined by the hospital infection control committee21
or equivalent body that an agent or employee of a hospital, or a physician having22
privileges at the hospital, has been exposed to the blood or bodily fluids of a patient,23
in such a manner as to create any risk that the agent, employee, or physician may24
become infected with the human immunodeficiency virus or other infectious agent25
if the patient is infected with the human immunodeficiency virus or other infectious26
agent, in accordance with the infectious disease exposure guidelines of the Centers27
for Disease Control or the infectious disease exposure standards of the health care28
facility where the exposure occurred, then the hospital infection control committee29 HLS 12RS-720 ORIGINAL
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may, without the consent of the patient, conduct such tests on blood previously1
drawn or body fluids previously collected as are necessary to determine whether the2
patient is, in fact, infected with the virus or other agent believed to cause acquired3
immune deficiency syndrome or other infectious disease. If no previously drawn4
blood or collected bodily fluids are available or are suitable, the hospital may order,5
without the consent of the patient, that blood, bodily fluids, or both be drawn and6
collected from the patient to conduct the necessary tests.7
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law to8
the contrary, whenever it is determined by the infectious disease control officer of9
any law enforcement, fire service, or emergency medical service agency or10
organization that an agent or employee of the agency or organization has been11
exposed to the blood or bodily fluids of a patient while rendering emergency medical12
services, transporting, or treating an ill or injured patient in such a manner as to13
create any risk that the agent or employee may become infected with the human14
immunodeficiency virus or other infectious agent if the patient is infected with the15
human immunodeficiency virus or other infectious agent, in accordance with the16
infectious disease exposure guidelines of the Centers for Disease Control or the17
infectious disease exposure standards of the agency or organization, then the18
infectious disease control officer of the agency or organization may present the facts19
to the infection control committee of the hospital or other health care facility to20
which the patient has been transported. If the hospital infection control committee21
agrees that there has been a potential exposure to the agency or organization22
personnel, then the hospital infection control committee may, while the patient is in23
such hospital and without the consent of the patient, conduct such tests as are24
provided for in this Section.25
C. The results of the test shall not become a part of the patient's medical26
record and shall be confidential, except that the hospital may inform the exposed27
employee, agent, or physician, or the infectious disease control officer of the law28 HLS 12RS-720 ORIGINAL
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enforcement, fire service, or emergency medical service agency of the results of the1
test.2
D. In the event that the test is performed, and the results of the test are3
positive, the hospital shall inform the patient of the results and shall provide such4
follow-up testing and counseling as may be required according to the accepted5
standard of medical care.6
E. The patient shall not be charged for any tests performed pursuant to the7
provisions of this Section.8
F. Nothing in this Part shall be construed to require the hospital to perform9
the test described herein.10
* * *11
§1299.58. Consent to surgical or medical treatment for developmentally disabled12
persons and residents of state-operated nursing homes13
* * *14
C. Consent given pursuant to this Section shall be in writing and shall15
comply with the provisions of R.S. 40:1299.40(A) 40:1299.39.5(A). A copy of the16
signed written consent form and of the physician's written recommendation shall be17
placed in the resident's permanent record.18
* * *19
§1299.131. Consent to dental treatment20
A. As used in this Part: 21
* * *22
(3) Notwithstanding the provisions of this Part, a dentist who performs oral23
or maxillofacial surgery in a hospital shall be subject to the provisions of R.S.24
40:1299.40 40:1299.39.5. 25
* * *26
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not27
affected 28 HLS 12RS-720 ORIGINAL
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The legislature recognizes that confidentiality protection for information1
related to human immunodeficiency virus (HIV) infection and acquired2
immunodeficiency syndrome (AIDS) is an essential public health measure. In order3
to retain the full trust and confidence of persons at risk, the state has an interest both4
in assuring that HIV test results are not improperly disclosed and in having clear and5
certain rules for the disclosure of such information. By providing additional6
protection for the confidentiality of HIV test results, the legislature intends to7
encourage the expansion of voluntary confidential testing for HIV so that individuals8
may come forward, learn their health status, make decisions regarding the9
appropriate treatment, and change behaviors that put them and others at risk of10
infection. The legislature also recognizes that confidentiality protections can limit11
the risk of discrimination and the harm to an individual's interest in privacy that12
unauthorized disclosure of HIV test results can cause. It is not the intent of the13
legislature to create any new right, right of action, or cause of action or eliminate any14
right, right of action, or cause of action existing under current law. It is further not15
the intent of the legislature that this Chapter repeal, amend, or in any way affect the16
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician17
or employee of a hospital who may become infected with the human18
immunodeficiency virus to test the blood of a patient without the patient's consent.19
It is the intent of the legislature that in the case of a person applying for or already20
insured under an insurance policy, who will be or has been the subject of a test to21
determine infection for human immunodeficiency virus (HIV), all facets of insurers'22
practices in connection with HIV related testing and HIV test results and all facets23
of other entities' and individuals' interactions with insurers relating to HIV related24
testing or HIV test results shall be governed exclusively by Title 22 of the Revised25
Statutes of 1950 and any regulations promulgated pursuant thereto by the26
commissioner of the Department of Insurance who shall have the authority to27
promulgate such regulations. 28 HLS 12RS-720 ORIGINAL
HB NO. 866
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are additions.
Section 2. All existing medical disclosure lists duly promulgated by either a prior1
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and2
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly3
created Louisiana Medical Disclosure Panel until such time as those lists may be updated4
and repromulgated pursuant to the provisions of this Act.5
Section 3. This Act shall become effective upon signature by the governor or, if not6
signed by the governor, upon expiration of the time for bills to become law without signature7
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If8
vetoed by the governor and subsequently approved by the legislature, this Act shall become9
effective on the day following such approval.10
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Abramson HB No. 866
Abstract: Provides for methods of obtaining informed consent for medical treatment and
creates the La. Medical Disclosure Panel.
Proposed law retains present law which allows the use of medical disclosure lists by health
care providers as an acceptable method of obtaining informed consent for medical treatment.
Proposed law deletes present law providing special requirements which apply only to
medical treatment involving implantation of "Norplant" contraceptive devices.
Present law provides that the secretary of the Department of Health and Hospitals (DHH)
shall 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.
Present law further requires the secretary of DHH, on at least an annual basis, to identify and
examine any new treatments and procedures that have been developed, assign them to the
proper disclosure list, and establish the degree of disclosure required and the form in which
the disclosure shall be made. Proposed law revises present law to rescind these duties from
the DHH secretary and assign them to the Louisiana Medical Disclosure Panel created by
proposed law.
Proposed law provides that the Louisiana Medical Disclosure Panel created by proposed law
shall be comprised of the following members:
(1)One member licensed to practice dentistry who specializes in oral and maxillofacial
surgery who shall be selected from a list of nominees submitted to the governor by
the Louisiana Society of Oral and Maxillofacial Surgeons.
(2)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 Trial Lawyers HLS 12RS-720 ORIGINAL
HB NO. 866
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are additions.
Association and one shall be selected from a list of nominees submitted to the
governor by the Louisiana Defense Counsel Association.
(3)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.
Proposed law provides that the initial members of the panel shall have the following terms:
(1)The dentist who specializes in oral and maxillofacial surgery, one attorney, and two
physicians shall serve a term of two years, or until a successor is appointed and
qualified.
(2)Two attorneys and two physicians shall serve a term of four years, or until a
successor is appointed and qualified.
(3)One attorney and two physicians shall 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.
Proposed law provides for the procedure for panel meetings, the filling of a vacancy on the
panel, and for the removal of a panel member for failure to attend meetings.
Proposed law provides that 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.
Proposed law provides that 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.
Proposed law provides that the dentist member of the panel shall only participate in the
panel's deliberation, determination, and preparation of lists of dental treatments and
procedures that do and do not require disclosure.
Proposed law provides for procedures relative to medical disclosure lists and the required
content of such lists.
Proposed law provides that the medical disclosure lists shall be duly promulgated according
to the provisions of the APA.
Proposed law retains present law which provides that the medical disclosure lists shall be
admissible in a health care liability suit or medical malpractice claim involving medical care
rendered or a surgical procedure performed.
Proposed law retains present law which provides that in a suit against a physician or other
health care provider involving a health care liability or medical malpractice claim which is
based on the negligent failure of the physician or other health care provider to disclose the
risks and hazards involved in the medical care or surgical procedure rendered by the
physician or other health care provider:
(1)Both the disclosure made and the failure to disclose based on inclusion of any
medical care or surgical procedure on a disclosure list for which disclosure is not HLS 12RS-720 ORIGINAL
HB NO. 866
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are additions.
required shall be admissible in evidence and shall create a rebuttable presumption
that the requirements of informed consent have been complied with and this
presumption shall be included in the charge to the jury; and
(2)The failure to disclose the risks and hazards involved in any medical care or surgical
procedure required to be disclosed shall be admissible in evidence and shall create
a rebuttable presumption of a negligent failure to conform to the duty of disclosure
and this presumption shall be included in the charge to the jury; but failure to
disclose may be found not to be negligent, if there was an emergency as defined in
present law or, if for some other reason, it was not medically feasible to make a
disclosure of the kind that would otherwise have been negligence.
Proposed law retains present law which provides that in order to be covered by the
provisions of present law, 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.
Proposed law requires DHH to maintain a searchable database of all current medical
disclosure lists and make such database available on the department's website.
Present law (R.S. 40:1299.40(D)(1)) provides an exception to the requirement of obtaining
informed consent and permits a hospital infection control committee to conduct certain tests
when it is determined that an agent or employee of a hospital, or a physician having
privileges at the hospital, has been exposed to the blood or bodily fluids of a patient, in such
a manner as to create any risk that the agent, employee, or physician may become infected
with the human immunodeficiency virus (HIV) or other infectious agent if the patient is
infected with HIV or other infectious agent, in accordance with the infectious disease
exposure guidelines of the Centers for Disease Control or the infectious disease exposure
standards of the health care facility where the exposure occurred. Proposed law retains
present law and relocates such provisions to a new Section of statute created by proposed
law.
Proposed law provides that all existing medical disclosure lists duly promulgated by either
a prior medical disclosure panel or the secretary of DHH shall remain effective and shall be
deemed to have been promulgated by the Louisiana Medical Disclosure Panel created by
proposed law until such time as those lists may be updated and repromulgated pursuant to
the provisions of proposed law.
Proposed law makes technical corrections to present law to reflect new Sections of statute
created by proposed law. HLS 12RS-720 ORIGINAL
HB NO. 866
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are additions.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 40:1299.58(C), 1299.131(A)(3), and 1300.11; Adds R.S. 40:1299.39.5-
1299.39.7; Repeals R.S. 40:1299.40)