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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 attendance via7
telecommunications; to provide for limitations on liability; to provide for medical8
disclosure lists; to provide for exceptions to obtaining informed consent; to provide9
for the promulgation of rules and regulations; to provide for an effective date; and10
to provide for related matters.11
Be it enacted by the Legislature of Louisiana:12
Section 1. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of13
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, and R.S. 40:1299.58(C),14
1299.131(A)(3), and 1300.11 are hereby amended and reenacted to read as follows: 15
PART XXII. UNIFORM CONSENT LAW16
§1299.40 1299.39.5. Consent to medical treatment; exception; availability of lists17
to establish necessity and degree methods of obtaining consent18
A.(1) Notwithstanding any other law to the contrary, written consent to19
medical treatment means the voluntary permission of a patient, through signature,20 HLS 12RS-720 ENGROSSED
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marking, or affirmative action through electronic means pursuant to R.S.1
40:1299.40.1, to any medical or surgical procedure or course of procedures which2
sets forth in general terms the nature and purpose of the procedure or procedures,3
together with the known risks, if any, of death, brain damage, quadriplegia,4
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars5
associated with such procedure or procedures; acknowledges that such disclosure of6
information has been made and that all questions asked about the procedure or7
procedures have been answered in a satisfactory manner; and is evidenced by a8
signature, marking, or affirmative action through electronic means, by the patient for9
whom the procedure is to be performed, or if the patient for any reason lacks legal10
capacity to consent, by a person who has legal authority to consent on behalf of such11
patient in such circumstances. Such consent shall be presumed to be valid and12
effective, in the absence of proof that execution of the consent was induced by13
misrepresentation of material facts.14
(2) In addition to the information required to be disclosed in Paragraph (1)15
of this Subsection, where the medical treatment involves the surgical implantation16
of "Norplant" contraceptive devices, the explanation to the patient shall include the17
known and significant or other material risks, the known adverse results, and18
alternative methods of contraception.19
B. Except as provided in Subsection A of this Section, no evidence shall be20
admissible to modify or limit the authorization for performance of the procedure or21
procedures set forth in such consent.22
C. Where consent to medical treatment from a patient, or from a person23
authorized by law to consent to medical treatment for such patient, is secured other24
than in accordance with Subsection A above, the explanation to the patient or to the25
person consenting for such patient shall include the matters set forth in Paragraph (1)26
of Subsection A above Paragraph (A)(1) of this Section, and an opportunity shall be27
afforded for asking questions concerning the procedures to be performed which shall28 HLS 12RS-720 ENGROSSED
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be answered in a satisfactory manner. Such consent shall be valid and effective and1
is subject to proof according to the rules of evidence in ordinary cases.2
D.(1) Notwithstanding this Section or any other law to the contrary,3
whenever it is determined by the hospital infection control committee or equivalent4
body that an agent or employee of a hospital, or a physician having privileges at the5
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner6
as to create any risk that the agent, employee, or physician may become infected with7
the human immunodeficiency virus or other infectious agent if the patient is infected8
with the human immunodeficiency virus or other infectious agent, in accordance9
with the infectious disease exposure guidelines of the Centers for Disease Control10
or the infectious disease exposure standards of the health care facility where the11
exposure occurred, then the hospital infection control committee may, without the12
consent of the patient, conduct such tests on blood previously drawn or body fluids13
previously collected as are necessary to determine whether the patient is, in fact,14
infected with the virus or other agent believed to cause acquired immune deficiency15
syndrome or other infectious disease. If no previously drawn blood or collected16
bodily fluids are available or are suitable, the hospital may order, without the consent17
of the patient, that blood, bodily fluids, or both be drawn and collected from the18
patient to conduct the necessary tests.19
(2) Notwithstanding this Section or any other law to the contrary, whenever20
it is determined by the infectious disease control officer of any law enforcement, fire21
service, or emergency medical service agency or organization that an agent or22
employee of the agency or organization has been exposed to the blood or bodily23
fluids of a patient while rendering emergency medical services, transporting, or24
treating an ill or injured patient in such a manner as to create any risk that the agent25
or employee may become infected with the human immunodeficiency virus or other26
infectious agent if the patient is infected with the human immunodeficiency virus or27
other infectious agent, in accordance with the infectious disease exposure guidelines28
of the Centers for Disease Control or the infectious disease exposure standards of the29 HLS 12RS-720 ENGROSSED
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agency or organization, then the infectious disease control officer of the agency or1
organization may present the facts to the infection control committee of the hospital2
or other health care facility to which the patient has been transported. If the hospital3
infection control committee agrees that there has been a potential exposure to the4
agency or organization personnel, then the hospital infection control committee may,5
while the patient is in such hospital and without the consent of the patient, conduct6
such tests as are provided for in R.S. 40:1299.40(D)(1).7
(3) The results of the test shall not become a part of the patient's medical8
record and shall be confidential, except that the hospital may inform the exposed9
employee, agent, or physician, or the infectious disease control officer of the law10
enforcement, fire service, or emergency medical service agency of the results of the11
test.12
(4) In the event that the test is performed, and the results of the test are13
positive, the hospital shall inform the patient of the results and shall provide such14
follow-up testing and counseling as may be required according to the accepted15
standard of medical care.16
(5) The patient shall not be charged for any tests performed under this17
Subsection.18
(6) Nothing herein shall be construed to require the hospital to perform the19
test described herein.20
E.(1) As used in this Subsection, "secretary" means the secretary of the21
Department of Health and Hospitals.22
(2)(a) D. In a suit against a physician or other health care provider involving23
a health care liability or medical malpractice claim which is based on the failure of24
the physician or other health care provider to disclose or adequately to disclose the25
risks and hazards involved in the medical care or surgical procedure rendered by the26
physician or other health care provider, the only theory on which recovery may be27
obtained is that of negligence in failing to disclose the risks or hazards that could28 HLS 12RS-720 ENGROSSED
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have influenced a reasonable person in making a decision to give or withhold1
consent.2
(b) E. Consent to medical treatment may be evidenced according to the3
provisions of Subsections A and C of this Section or, as an alternative, a physician4
or other health care provider may choose to avail himself of the lists established by5
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this6
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's7
consent to medical treatment.8
(3) The secretary shall determine which risks and hazards related to medical9
care and surgical procedures must be disclosed by a physician or other health care10
provider to a patient or person authorized to consent for a patient and to establish the11
general form and substance of such disclosure.12
(4)(a) To the extent feasible, the secretary shall identify and make a thorough13
examination of all medical treatments and surgical procedures in which physicians14
and other health care providers may be involved in order to determine which of those15
treatments and procedures do and do not require disclosure of the risks and hazards16
to the patient or person authorized to consent for the patient.17
(b) The secretary shall prepare separate lists of those medical treatments and18
surgical procedures that do and do not require disclosure and for those treatments19
and procedures that do require disclosure shall establish the degree of disclosure20
required and the form in which the disclosure will be made.21
(c) Lists prepared under Subparagraph (b) of this Paragraph together with22
written explanations of the degree and form of disclosure shall be promulgated23
according to the Administrative Procedure Act. The form of the disclosure and24
manner in which such disclosure will be made shall be subject to legislative25
oversight by the House and Senate health and welfare committees. The lists26
compiled and published and rules promulgated relative to the form and manner of27
disclosure according to the provisions of this Subsection and evidence of such28
disclosures or failure to disclose by a physician or other health care provider as29 HLS 12RS-720 ENGROSSED
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provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health1
care liability suit or medical malpractice claim involving medical care rendered or2
a surgical procedure performed on or after March 1, 1991.3
(d) At least annually, or at such other period as the secretary may determine,4
the secretary shall identify and examine any new medical treatments and surgical5
procedures that have been developed since its last determinations, shall assign them6
to the proper list, and shall establish the degree of disclosure required and the form7
in which the disclosure shall be made. The secretary shall also review and examine8
such treatments and procedures for the purpose of revising lists previously published.9
These determinations shall be published in the same manner as described in10
Subparagraph (c) of this Paragraph.11
(5) Before a patient or a person authorized to consent for a patient gives12
consent to any medical or surgical procedure that appears on the list requiring13
disclosure, the physician or other health care provider shall disclose to the patient,14
or person authorized to consent for the patient, the risks and hazards involved in that15
kind of care or procedure. A physician or other health care provider may choose to16
utilize the lists prepared by the secretary and shall be considered to have complied17
with the requirements of this Subsection if disclosure is made as provided in18
Paragraph (6) of this Subsection.19
(6) Consent to medical care that appears on the secretary's list requiring20
disclosure shall be considered effective under this Subsection, if it is given by the21
patient or a person authorized to give the consent and by a competent witness, and22
if the consent specifically states, in such terms and language that a layman would be23
expected to understand, the risks and hazards that are involved in the medical care24
or surgical procedure in the form and to the degree required by the secretary under25
Paragraph (4) of this Subsection.26
(7)(a) In a suit against a physician or other health care provider involving a27
health care liability or medical malpractice claim which is based on the negligent28
failure of the physician or other health care provider to disclose or adequately to29 HLS 12RS-720 ENGROSSED
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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 ENGROSSED
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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) Two members licensed to practice dentistry. One member who27
specializes in oral and maxillofacial surgery who shall be selected from a list of28
nominees submitted to the governor by the Louisiana Society of Oral and29 HLS 12RS-720 ENGROSSED
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Maxillofacial Surgeons. The other member shall be selected from a list of nominees1
submitted to the governor by the Louisiana Dental Association.2
(b) Four members licensed to practice law in this state of whom three shall3
be selected from a list of nominees submitted to the governor by the Louisiana4
Association of Justice and one shall be selected from a list of nominees submitted5
to the governor by the Louisiana Defense Counsel Association.6
(c) Six members licensed to practice medicine in this state who shall be7
selected from a list of nominees submitted to the governor by the Louisiana State8
Medical Society.9
(d) One member licensed to practice chiropractic in this state who shall be10
selected from a list of nominees submitted to the governor by the Chiropractic11
Association of Louisiana.12
C. The initial members of the panel shall have the following terms:13
(1) The dentist who specializes in oral and maxillofacial surgery, the14
chiropractic physician, one attorney, and two physicians shall serve a term of two15
years, or until a successor is appointed and qualified.16
(2) Two attorneys, two physicians, and one dentist shall serve a term of four17
years, or until a successor is appointed and qualified.18
(3) One attorney and two physicians shall serve a term of six years, or until19
a successor is appointed and qualified.20
(4) Thereafter, at the expiration of the term of each member of the panel, the21
governor shall appoint a successor and such successor shall serve for a term of six22
years, or until his successor is appointed and qualified.23
D. Any member of the panel who is absent for three consecutive meetings24
without the consent of a majority of the panel at each such meeting may be removed25
by the governor at the request of the panel present submitted in writing and signed26
by the chairman. Upon the death, resignation, or removal of any member, the27
governor shall fill the vacancy by selection for the unexpired portion of the term.28 HLS 12RS-720 ENGROSSED
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E. Members of the panel shall not be entitled to per diem or any other1
compensation for their service, but shall be entitled to reimbursement of any2
necessary and reasonable expense incurred in the performance of their duties on the3
panel, including travel expenses.4
F. Meetings of the panel shall be held at the call of the chairman or on5
petition of at least three members of the panel.6
G. At the first meeting of the panel each year after its members assume their7
positions, the panelists shall select one of the panel members to serve as chairman8
and one of the panel members to serve as vice chairman, and each such officer shall9
serve for a term of one year. The chairman shall preside at meetings of the panel,10
and in his absence, the vice chairman shall preside.11
H. The department shall provide administrative assistance to and serve as the12
staff for the panel.13
I. The governor shall appoint the initial members of the panel no later than14
October 1, 2012, and the panel shall convene its first meeting no later than15
November 1, 2012.16
J.(1) To the extent feasible, the panel shall identify and make a thorough17
examination of all medical treatments and surgical procedures in which physicians18
and other health care providers may be involved in order to determine which of those19
treatments and procedures do and do not require disclosure of the risks and hazards20
to the patient or person authorized to consent for the patient. The panel, initially,21
shall examine all existing medical disclosure lists and update and repromulgate those22
lists under the authority vested in this Section. The dentist member of the panel shall23
only participate in the panel's deliberation, determination, and preparation of lists of24
dental treatments and procedures that do and do not require disclosure.25
(2) The panel shall prepare separate lists of those medical treatments and26
surgical procedures that do and do not require disclosure and for those treatments27
and procedures that do require disclosure shall establish the degree of disclosure28
required and the form in which the disclosure will be made.29 HLS 12RS-720 ENGROSSED
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(3) Lists prepared pursuant to the provisions of this Section together with1
written explanations of the degree and form of disclosure shall be promulgated in2
accordance with the provisions of the Administrative Procedure Act. The form of3
the disclosure and manner in which such disclosure will be made shall be subject to4
legislative oversight by the House and Senate health and welfare committees.5
K. The lists compiled and published and rules promulgated relative to the6
form and manner of disclosure according to the provisions of this Subsection and7
evidence of such disclosures or failure to disclose by a physician or other health care8
provider as provided in this Section, shall be admissible in a health care liability suit9
or medical malpractice claim involving medical care rendered or a surgical10
procedure performed.11
L. At least annually, or at such other period as the panel may determine, the12
panel shall identify and examine any new medical treatments and surgical procedures13
that have been developed since its last determinations, shall assign them to the14
proper list, and shall establish the degree of disclosure required and the form in15
which the disclosure shall be made. The panel shall also review and examine such16
treatments and procedures for the purpose of revising lists previously published.17
These determinations shall be published in the same manner as described in18
Paragraph (J)(3) of this Section.19
M. Before a patient or a person authorized to consent for a patient gives20
consent to any medical or surgical procedure that appears on the panel's list requiring21
disclosure, the physician or other health care provider shall disclose to the patient,22
or person authorized to consent for the patient, the risks and hazards involved in that23
kind of care or procedure. A physician or other health care provider may choose to24
utilize the lists prepared by the panel and shall be considered to have complied with25
the requirements of this Subsection if disclosure is made as provided in Subsection26
N of this Section.27
N. Consent to medical care that appears on the panel's list requiring28
disclosure shall be considered effective pursuant to the provisions of this Subsection,29 HLS 12RS-720 ENGROSSED
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if it is given in writing, signed by the patient or a person authorized to give the1
consent and by a competent witness, and if the written consent specifically states, in2
such terms and language that a layman would be expected to understand, the risks3
and hazards that are involved in the medical care or surgical procedure in the form4
and to the degree required by the panel pursuant to the provisions of this Section.5
O.(1) All the following requirements shall apply in a suit against a physician6
or other health care provider involving a health care liability or medical malpractice7
claim which is based on the negligent failure of the physician or other health care8
provider to disclose or adequately to disclose the risks and hazards involved in the9
medical care or surgical procedure rendered by the physician or other health care10
provider:11
(a) Both the disclosure made as provided in Subsection M of this Section and12
the failure to disclose based on inclusion of any medical care or surgical procedure13
on the panel's list for which disclosure is not required shall be admissible in evidence14
and shall create a rebuttable presumption that the requirements of Subsections M and15
N of this Section have been complied with and this presumption shall be included in16
the charge to the jury.17
(b) The failure to disclose the risks and hazards involved in any medical care18
or surgical procedure required to be disclosed under Subsections M and N of this19
Section shall be admissible in evidence and shall create a rebuttable presumption of20
a negligent failure to conform to the duty of disclosure set forth in Subsections M21
and N of this Section, and this presumption shall be included in the charge to the22
jury; but failure to disclose may be found not to be negligent, if there was an23
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not24
medically feasible to make a disclosure of the kind that would otherwise have been25
negligence.26
(2) If medical care is rendered or a surgical procedure performed with27
respect to which the panel has not made a determination regarding a duty of28 HLS 12RS-720 ENGROSSED
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disclosure, the physician or other health care provider is under the general duty to1
disclose otherwise imposed by R.S. 40:1299.39.5.2
P. In order to be covered by the provisions of this Subsection, the physician3
or other health care provider who will actually perform the contemplated medical or4
surgical procedure shall:5
(1) Disclose the risks and hazards in the form and to the degree required by6
the panel.7
(2) Disclose additional risks, if any, particular to a patient because of a8
complicating medical condition, either told to the physician or other health care9
provider by the patient or his representative in a medical history of the patient or10
reasonably discoverable by such physician or other health care provider.11
(3) Disclose reasonable therapeutic alternatives and risks associated with12
such alternatives.13
(4) Relate that he is obtaining a consent to medical treatment pursuant to the14
lists formulated by the Louisiana Medical Disclosure Panel.15
(5) Provide an opportunity to ask any questions about the contemplated16
medical or surgical procedure, risks, or alternatives and acknowledge in writing that17
he answered such questions, to the patient or other person authorized to give consent18
to medical treatment, receipt of which shall be acknowledged in writing.19
Q. The department shall maintain a searchable database of all current20
medical disclosure lists and make such database available to the public on the21
website of the department.22
R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:11 et23
seq., or any other law, if any member of the panel is physically present at a meeting,24
any number of the other members of the panel may attend the meeting by use of25
telephone conference call, videoconferencing, or other similar telecommunication26
methods for purposes of establishing a quorum or voting or for any other meeting27
purpose allowing a panel member to fully participate in any panel meeting. The28
provisions of this Subsection shall apply without regard to the subject matter29 HLS 12RS-720 ENGROSSED
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discussed or considered by the panel at the meeting. A meeting held by telephone1
conference call, videoconferencing, or other similar telecommunication method:2
(1) Shall be subject to the notice requirements of R.S. 42:11 et seq.3
(2) Shall not be held unless the notice of the meeting specifies the location4
of the meeting at which a member of the panel will be physically present.5
(3) Shall be open to the public and audible to the public at the location6
specified in the notice.7
(4) Shall provide two-way audio communication between all panel members8
attending the meeting during the entire meeting, and, if the two-way audio9
communication link with any member attending the meeting is disrupted at any time,10
the meeting may not continue until the two-way audio communication link is11
reestablished.12
S. The Department of Health and Hospitals, its agents or employees, or any13
person serving as a member of the panel shall not be liable to any person, firm or14
entity, public or private, for any act or omission to act arising out of a health care15
provider attempting to obtain or obtaining informed consent pursuant to the16
provisions of this Section.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 ENGROSSED
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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 ENGROSSED
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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 HLS 12RS-720 ENGROSSED
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are additions.
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not1
affected 2
The legislature recognizes that confidentiality protection for information3
related to human immunodeficiency virus (HIV) infection and acquired4
immunodeficiency syndrome (AIDS) is an essential public health measure. In order5
to retain the full trust and confidence of persons at risk, the state has an interest both6
in assuring that HIV test results are not improperly disclosed and in having clear and7
certain rules for the disclosure of such information. By providing additional8
protection for the confidentiality of HIV test results, the legislature intends to9
encourage the expansion of voluntary confidential testing for HIV so that individuals10
may come forward, learn their health status, make decisions regarding the11
appropriate treatment, and change behaviors that put them and others at risk of12
infection. The legislature also recognizes that confidentiality protections can limit13
the risk of discrimination and the harm to an individual's interest in privacy that14
unauthorized disclosure of HIV test results can cause. It is not the intent of the15
legislature to create any new right, right of action, or cause of action or eliminate any16
right, right of action, or cause of action existing under current law. It is further not17
the intent of the legislature that this Chapter repeal, amend, or in any way affect the18
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician19
or employee of a hospital who may become infected with the human20
immunodeficiency virus to test the blood of a patient without the patient's consent.21
It is the intent of the legislature that in the case of a person applying for or already22
insured under an insurance policy, who will be or has been the subject of a test to23
determine infection for human immunodeficiency virus (HIV), all facets of insurers'24
practices in connection with HIV related testing and HIV test results and all facets25
of other entities' and individuals' interactions with insurers relating to HIV related26
testing or HIV test results shall be governed exclusively by Title 22 of the Louisiana27
Revised Statutes of 1950 and any regulations promulgated pursuant thereto by the28 HLS 12RS-720 ENGROSSED
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are additions.
commissioner of the Department of Insurance who shall have the authority to1
promulgate such regulations.2
Section 2. All existing medical disclosure lists duly promulgated by either a prior3
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and4
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly5
created Louisiana Medical Disclosure Panel until such time as those lists may be updated6
and repromulgated pursuant to the provisions of this Act.7
Section 3. This Act shall become effective upon signature by the governor or, if not8
signed by the governor, upon expiration of the time for bills to become law without signature9
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If10
vetoed by the governor and subsequently approved by the legislature, this Act shall become11
effective on the day following such approval.12
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 Dept. 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 La. Medical Disclosure Panel created by proposed
law.
Proposed law provides that the La. Medical Disclosure Panel created by proposed law shall
be comprised of the following members: HLS 12RS-720 ENGROSSED
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are additions.
(1)Two members licensed to practice dentistry. One member who specializes in oral
and maxillofacial surgery who shall be selected from a list of nominees submitted
to the governor by the La. Society of Oral and Maxillofacial Surgeons. The other
member shall be selected from a list of nominees submitted to the governor by the
La. Dental Association.
(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 La. Trial Lawyers
Association and one shall be selected from a list of nominees submitted to the
governor by the La. 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 La. State Medical Society.
(4)One member licensed to practice chiropractic in this state who shall be selected from
a list of nominees submitted to the governor by the Chiropractic Association of La..
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, the chiropractic
physician, one attorney, and two physicians shall serve a term of two years, or until
a successor is appointed and qualified.
(2)Two attorneys, two physicians, and one dentist 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. HLS 12RS-720 ENGROSSED
HB NO. 866
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are additions.
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
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 La. 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.
Proposed law authorizes participation in meetings by telephone conference call,
videoconferencing, or other similar telecommunication methods if at least one member is
physically present at a meeting, and provides that if a meeting is held via
telecommunications, the Open Meeting Law provisions of R.S. 42:11 et seq. apply.
Proposed law limits liability of the department, its agents or employees resulting from a
health care provider attempting to obtain or obtaining informed consent. HLS 12RS-720 ENGROSSED
HB NO. 866
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are additions.
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 La. 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.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 40:1299.39.5-1299.39.7, 1299.58(C), 1299.131(A)(3), and 1300.11)
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Civil Law and Procedure
to the original bill.
1. Added a dentist and chiropractic physician to the panel.
2. Authorized participation in meetings by telephone conference call,
videoconferencing, or other similar telecommunication methods if at least one
member is physically present at a meeting, and provides that if a meeting is held
via telecommunications, the Open Meeting Law requirements shall apply.
3. Limited liability of the department, its agents, or employees resulting from a
health care provider attempting to obtain or obtaining informed consent.