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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 R.S. 36:802(introductory paragraph), Part XXII of Chapter 5 of Title2
40 of the Louisiana Revised Statutes of 1950, to be comprised of R.S. 40:1299.39.53
through 1299.39.7, and R.S. 40:1299.58(C), 1299.131(A)(3), and 1300.11, and to4
enact R.S. 36:259(MM), relative to consent to medical treatment; to provide for5
methods by which informed consent may be obtained; to provide for definitions; to6
create the Louisiana Medical Disclosure Panel; to provide for membership, powers,7
and duties of such panel; to provide for attendance via telecommunications; to8
provide for limitations on liability; to provide for medical disclosure lists; to provide9
for exceptions to obtaining informed consent; to provide for the promulgation of10
rules and regulations; to provide for placement of the Louisiana Medical Disclosure11
Panel within the Department of Health and Hospitals; to provide for an effective12
date; and to provide for related matters.13
Be it enacted by the Legislature of Louisiana:14
Section 1. R.S. 36:802(introductory paragraph) is hereby amended and reenacted and15
R.S. 36:259(MM) is hereby enacted to read as follows:16
§259. Transfer of agencies and functions to Department of Health and Hospitals17
* * *18
MM. The Louisiana Medical Disclosure Panel (R.S. 40:1299.39.6) is placed19
within the Department of Health and Hospitals and shall exercise and perform its20 HLS 12RS-720 REENGROSSED
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powers, duties, functions, and responsibilities in the manner provided for agencies1
transferred in accordance with the provisions of R.S. 36:802.2
* * *3
§802. Transfer; retention of policymaking and rulemaking functions4
The agencies transferred by the provisions of R.S. 36:209(Q), 239(E),5
259(B), 259(T), 259(MM), 309(B), 359(B), 409(C), 459(B), 509(B), 610(B), 629(I),6
and 769(C) shall continue to be composed and selected as provided by law, and each7
shall continue to exercise all of the powers, duties, functions, and responsibilities8
provided or authorized for each by the constitution or laws which are in the nature9
of policymaking, rulemaking, licensing, regulations, enforcement, or adjudication10
and also shall continue to exercise all advisory powers, duties, functions, and11
responsibilities provided by law. Such powers, duties, functions, and responsibilities12
shall be exercised independently of the secretary and any assistant secretary, except13
that:14
* * *15
Section 2. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of16
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, and R.S. 40:1299.58(C),17
1299.131(A)(3), and 1300.11 are hereby amended and reenacted to read as follows: 18
PART XXII. UNIFORM CONSENT LAW19
§1299.40 1299.39.5. Consent to medical treatment; exception; availability of lists20
to establish necessity and degree methods of obtaining consent21
A.(1) Notwithstanding any other law to the contrary, written consent to22
medical treatment means the voluntary permission of a patient, through signature,23
marking, or affirmative action through electronic means pursuant to R.S.24
40:1299.40.1, to any medical or surgical procedure or course of procedures which25
sets forth in general terms the nature and purpose of the procedure or procedures,26
together with the known risks, if any, of death, brain damage, quadriplegia,27
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars28
associated with such procedure or procedures; acknowledges that such disclosure of29 HLS 12RS-720 REENGROSSED
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information has been made and that all questions asked about the procedure or1
procedures have been answered in a satisfactory manner; and is evidenced by a2
signature, marking, or affirmative action through electronic means, by the patient for3
whom the procedure is to be performed, or if the patient for any reason lacks legal4
capacity to consent, by a person who has legal authority to consent on behalf of such5
patient in such circumstances. Such consent shall be presumed to be valid and6
effective, in the absence of proof that execution of the consent was induced by7
misrepresentation of material facts.8
(2) In addition to the information required to be disclosed in Paragraph (1)9
of this Subsection, where the medical treatment involves the surgical implantation10
of "Norplant" contraceptive devices, the explanation to the patient shall include the11
known and significant or other material risks, the known adverse results, and12
alternative methods of contraception.13
B. Except as provided in Subsection A of this Section, no evidence shall be14
admissible to modify or limit the authorization for performance of the procedure or15
procedures set forth in such consent.16
C. Where consent to medical treatment from a patient, or from a person17
authorized by law to consent to medical treatment for such patient, is secured other18
than in accordance with Subsection A above of this Section, the explanation to the19
patient or to the person consenting for such patient shall include the matters set forth20
in Paragraph (1) of Subsection A above Subsection A of this Section, and an21
opportunity shall be afforded for asking questions concerning the procedures to be22
performed which shall be answered in a satisfactory manner. Such consent shall be23
valid and effective and is subject to proof according to the rules of evidence in24
ordinary cases.25
D.(1) Notwithstanding this Section or any other law to the contrary,26
whenever it is determined by the hospital infection control committee or equivalent27
body that an agent or employee of a hospital, or a physician having privileges at the28
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner29 HLS 12RS-720 REENGROSSED
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as to create any risk that the agent, employee, or physician may become infected with1
the human immunodeficiency virus or other infectious agent if the patient is infected2
with the human immunodeficiency virus or other infectious agent, in accordance3
with the infectious disease exposure guidelines of the Centers for Disease Control4
or the infectious disease exposure standards of the health care facility where the5
exposure occurred, then the hospital infection control committee may, without the6
consent of the patient, conduct such tests on blood previously drawn or body fluids7
previously collected as are necessary to determine whether the patient is, in fact,8
infected with the virus or other agent believed to cause acquired immune deficiency9
syndrome or other infectious disease. If no previously drawn blood or collected10
bodily fluids are available or are suitable, the hospital may order, without the consent11
of the patient, that blood, bodily fluids, or both be drawn and collected from the12
patient to conduct the necessary tests.13
(2) Notwithstanding this Section or any other law to the contrary, whenever14
it is determined by the infectious disease control officer of any law enforcement, fire15
service, or emergency medical service agency or organization that an agent or16
employee of the agency or organization has been exposed to the blood or bodily17
fluids of a patient while rendering emergency medical services, transporting, or18
treating an ill or injured patient in such a manner as to create any risk that the agent19
or employee may become infected with the human immunodeficiency virus or other20
infectious agent if the patient is infected with the human immunodeficiency virus or21
other infectious agent, in accordance with the infectious disease exposure guidelines22
of the Centers for Disease Control or the infectious disease exposure standards of the23
agency or organization, then the infectious disease control officer of the agency or24
organization may present the facts to the infection control committee of the hospital25
or other health care facility to which the patient has been transported. If the hospital26
infection control committee agrees that there has been a potential exposure to the27
agency or organization personnel, then the hospital infection control committee may,28 HLS 12RS-720 REENGROSSED
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while the patient is in such hospital and without the consent of the patient, conduct1
such tests as are provided for in R.S. 40:1299.40(D)(1).2
(3) The results of the test shall not become a part of the patient's medical3
record and shall be confidential, except that the hospital may inform the exposed4
employee, agent, or physician, or the infectious disease control officer of the law5
enforcement, fire service, or emergency medical service agency of the results of the6
test.7
(4) In the event that the test is performed, and the results of the test are8
positive, the hospital shall inform the patient of the results and shall provide such9
follow-up testing and counseling as may be required according to the accepted10
standard of medical care.11
(5) The patient shall not be charged for any tests performed under this12
Subsection.13
(6) Nothing herein shall be construed to require the hospital to perform the14
test described herein.15
E.(1) As used in this Subsection, "secretary" means the secretary of the16
Department of Health and Hospitals.17
(2)(a) D. In a suit against a physician or other health care provider involving18
a health care liability or medical malpractice claim which is based on the failure of19
the physician or other health care provider to disclose or adequately to disclose the20
risks and hazards involved in the medical care or surgical procedure rendered by the21
physician or other health care provider, the only theory on which recovery may be22
obtained is that of negligence in failing to disclose the risks or hazards that could23
have influenced a reasonable person in making a decision to give or withhold24
consent.25
(b) E. Consent to medical treatment may be evidenced according to the26
provisions of Subsections A and C of this Section or, as an alternative, a physician27
or other health care provider may choose to avail himself of the lists established by28
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this29 HLS 12RS-720 REENGROSSED
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Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's1
consent to medical treatment.2
(3) The secretary shall determine which risks and hazards related to medical3
care and surgical procedures must be disclosed by a physician or other health care4
provider to a patient or person authorized to consent for a patient and to establish the5
general form and substance of such disclosure.6
(4)(a) To the extent feasible, the secretary shall identify and make a thorough7
examination of all medical treatments and surgical procedures in which physicians8
and other health care providers may be involved in order to determine which of those9
treatments and procedures do and do not require disclosure of the risks and hazards10
to the patient or person authorized to consent for the patient.11
(b) The secretary shall prepare separate lists of those medical treatments and12
surgical procedures that do and do not require disclosure and for those treatments13
and procedures that do require disclosure shall establish the degree of disclosure14
required and the form in which the disclosure will be made.15
(c) Lists prepared under Subparagraph (b) of this Paragraph together with16
written explanations of the degree and form of disclosure shall be promulgated17
according to the Administrative Procedure Act. The form of the disclosure and18
manner in which such disclosure will be made shall be subject to legislative19
oversight by the House and Senate health and welfare committees. The lists20
compiled and published and rules promulgated relative to the form and manner of21
disclosure according to the provisions of this Subsection and evidence of such22
disclosures or failure to disclose by a physician or other health care provider as23
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health24
care liability suit or medical malpractice claim involving medical care rendered or25
a surgical procedure performed on or after March 1, 1991.26
(d) At least annually, or at such other period as the secretary may determine,27
the secretary shall identify and examine any new medical treatments and surgical28
procedures that have been developed since its last determinations, shall assign them29 HLS 12RS-720 REENGROSSED
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to the proper list, and shall establish the degree of disclosure required and the form1
in which the disclosure shall be made. The secretary shall also review and examine2
such treatments and procedures for the purpose of revising lists previously published.3
These determinations shall be published in the same manner as described in4
Subparagraph (c) of this Paragraph.5
(5) Before a patient or a person authorized to consent for a patient gives6
consent to any medical or surgical procedure that appears on the list requiring7
disclosure, the physician or other health care provider shall disclose to the patient,8
or person authorized to consent for the patient, the risks and hazards involved in that9
kind of care or procedure. A physician or other health care provider may choose to10
utilize the lists prepared by the secretary and shall be considered to have complied11
with the requirements of this Subsection if disclosure is made as provided in12
Paragraph (6) of this Subsection.13
(6) Consent to medical care that appears on the secretary's list requiring14
disclosure shall be considered effective under this Subsection, if it is given by the15
patient or a person authorized to give the consent and by a competent witness, and16
if the consent specifically states, in such terms and language that a layman would be17
expected to understand, the risks and hazards that are involved in the medical care18
or surgical procedure in the form and to the degree required by the secretary under19
Paragraph (4) of this Subsection.20
(7)(a) In a suit against a physician or other health care provider involving a21
health care liability or medical malpractice claim which is based on the negligent22
failure of the physician or other health care provider to disclose or adequately to23
disclose the risks and hazards involved in the medical care or surgical procedure24
rendered by the physician or other health care provider:25
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection26
and the failure to disclose based on inclusion of any medical care or surgical27
procedure on the secretary's list for which disclosure is not required shall be28
admissible in evidence and shall create a rebuttable presumption that the29 HLS 12RS-720 REENGROSSED
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requirements of Paragraphs (5) and (6) of this Subsection have been complied with,1
and this presumption shall be included in the charge to the jury; and2
(ii) The failure to disclose the risks and hazards involved in any medical care3
or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this4
Subsection shall be admissible in evidence and shall create a rebuttable presumption5
of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5)6
and (6) of this Subsection, and this presumption shall be included in the charge to the7
jury; but failure to disclose may be found not to be negligent, if there was an8
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not9
medically feasible to make a disclosure of the kind that would otherwise have been10
negligence.11
(b) If medical care is rendered or a surgical procedure performed with12
respect to which the secretary has not made a determination regarding a duty of13
disclosure, the physician or other health care provider is under the general duty to14
disclose otherwise imposed by this Section.15
(c) In order to be covered by the provisions of this Subsection, the physician16
or other health care provider who will actually perform the contemplated medical or17
surgical procedure shall:18
(i) Disclose the risks and hazards in the form and to the degree required by19
the secretary;20
(ii) Disclose additional risks, if any, particular to a patient because of a21
complicating medical condition, either told to the physician or other health care22
provider by the patient or his representative in a medical history of the patient or23
reasonably discoverable by such physician or other health care provider;24
(iii) Disclose reasonable therapeutic alternatives and risks associated with25
such alternatives;26
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the27
lists formulated by the secretary; and28 HLS 12RS-720 REENGROSSED
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(v) Provide an opportunity to ask any questions about the contemplated1
medical or surgical procedure, risks, or alternatives and acknowledge in writing that2
he answered such questions, to the patient or other person authorized to give consent3
to medical treatment, receipt of which shall be acknowledged in writing.4
F. Notwithstanding the provisions of Subsection E of this Section, consent5
for dental treatment rendered by dentists not performing oral and maxillofacial6
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.7
40:1299.131.8
§1299.39.6. Louisiana Medical Disclosure Panel; creation; membership; powers;9
duties10
A. As used in this Section, the following terms shall mean:11
(1) "Panel" means the Louisiana Medical Disclosure Panel.12
(2) "Department" means the Department of Health and Hospitals.13
B.(1) The Louisiana Medical Disclosure Panel is hereby created within the14
department to determine which risks and hazards related to medical care and surgical15
procedures must be disclosed by a physician or other health care provider to a patient16
or person authorized to consent for a patient and to establish the general form and17
substance of such disclosure.18
(2) The panel shall be comprised of the following members who shall be19
appointed by the governor and submitted to the Senate for confirmation:20
(a) Two members licensed to practice dentistry. One member who21
specializes in oral and maxillofacial surgery who shall be selected from a list of22
nominees submitted to the governor by the Louisiana Society of Oral and23
Maxillofacial Surgeons. The other member shall be selected from a list of nominees24
submitted to the governor by the Louisiana Dental Association.25
(b) Four members licensed to practice law in this state of whom three shall26
be selected from a list of nominees submitted to the governor by the Louisiana27
Association for Justice and one shall be selected from a list of nominees submitted28
to the governor by the Louisiana Association of Defense Counsel.29 HLS 12RS-720 REENGROSSED
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(c) Six members licensed to practice medicine in this state who shall be1
selected from a list of nominees submitted to the governor by the Louisiana State2
Medical Society.3
(d) One member licensed to practice chiropractic in this state who shall be4
selected from a list of nominees submitted to the governor by the Chiropractic5
Association of Louisiana.6
(e) One member licensed to practice podiatry in the state who shall be7
selected from a list of nominees submitted to the governor by the Louisiana Podiatric8
Medical Association.9
C. The initial members of the panel shall have the following terms:10
(1) The dentist who specializes in oral and maxillofacial surgery, the11
chiropractic physician, the podiatrist, one attorney, and two physicians shall serve12
a term of two years, or until a successor is appointed and qualified.13
(2) Two attorneys, two physicians, and one dentist shall serve a term of four14
years, or until a successor is appointed and qualified.15
(3) One attorney and two physicians shall serve a term of six years, or until16
a successor is appointed and qualified.17
(4) Thereafter, at the expiration of the term of each member of the panel, the18
governor shall appoint a successor and such successor shall serve for a term of six19
years, or until his successor is appointed and qualified.20
D. Any member of the panel who is absent for three consecutive meetings21
without the consent of a majority of the panel at each such meeting may be removed22
by the governor at the request of the panel present submitted in writing and signed23
by the chairman. Upon the death, resignation, or removal of any member, the24
governor shall fill the vacancy by selection for the unexpired portion of the term.25
E. Members of the panel shall not be entitled to per diem or any other26
compensation for their service, but shall be entitled to reimbursement of any27
necessary and reasonable expense incurred in the performance of their duties on the28
panel, including travel expenses.29 HLS 12RS-720 REENGROSSED
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F. Meetings of the panel shall be held at the call of the chairman or on1
petition of at least three members of the panel.2
G. At the first meeting of the panel each year after its members assume their3
positions, the panelists shall select one of the panel members to serve as chairman4
and one of the panel members to serve as vice chairman, and each such officer shall5
serve for a term of one year. The chairman shall preside at meetings of the panel,6
and in his absence, the vice chairman shall preside.7
H. The department shall provide administrative assistance to and serve as the8
staff for the panel.9
I. The governor shall appoint the initial members of the panel no later than10
October 1, 2012, and the panel shall convene its first meeting no later than11
November 1, 2012.12
J.(1) To the extent feasible, the panel 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. The panel, initially,17
shall examine all existing medical disclosure lists and update and repromulgate those18
lists under the authority vested in this Section. The dentist member of the panel shall19
participate only in the panel's deliberation, determination, and preparation of lists of20
dental treatments and procedures that do and do not require disclosure.21
(2) The panel shall prepare separate lists of those medical treatments and22
surgical procedures that do and do not require disclosure and for those treatments23
and procedures that do require disclosure shall establish the degree of disclosure24
required and the form in which the disclosure will be made.25
(3) Lists prepared pursuant to the provisions of this Section together with26
written explanations of the degree and form of disclosure shall be promulgated in27
accordance with the provisions of the Administrative Procedure Act. The form of28 HLS 12RS-720 REENGROSSED
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the disclosure and manner in which such disclosure will be made shall be subject to1
legislative oversight by the House and Senate health and welfare committees.2
K. The lists compiled and published and rules promulgated relative to the3
form and manner of disclosure according to the provisions of this Section and4
evidence of such disclosures or failure to disclose by a physician or other health care5
provider as provided in this Section, shall be admissible in a health care liability suit6
or medical malpractice claim involving medical care rendered or a surgical7
procedure performed.8
L. At least annually, or at such other period as the panel may determine, the9
panel shall identify and examine any new medical treatments and surgical procedures10
that have been developed since its last determinations, shall assign them to the11
proper list, and shall establish the degree of disclosure required and the form in12
which the disclosure shall be made. The panel shall also review and examine such13
treatments and procedures for the purpose of revising lists previously published.14
These determinations shall be published in the same manner as described in15
Paragraph (J)(3) of this Section.16
M. Before a patient or a person authorized to consent for a patient gives17
consent to any medical or surgical procedure that appears on the panel's list requiring18
disclosure, the physician or other health care provider shall disclose to the patient,19
or person authorized to consent for the patient, the risks and hazards involved in that20
kind of care or procedure. A physician or other health care provider may choose to21
utilize the lists prepared by the panel and shall be considered to have complied with22
the requirements of this Subsection if disclosure is made as provided in Subsection23
N of this Section.24
N. Consent to medical care that appears on the panel's list requiring25
disclosure shall be considered effective pursuant to the provisions of this Section, if26
it is given in writing, signed by the patient or a person authorized to give the consent27
and by a competent witness, and if the written consent specifically states, in such28
terms and language that a layman would be expected to understand, the risks and29 HLS 12RS-720 REENGROSSED
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hazards that are involved in the medical care or surgical procedure in the form and1
to the degree required by the panel pursuant to the provisions of this Section.2
O.(1) All the following requirements shall apply in a suit against a physician3
or other health care provider involving a health care liability or medical malpractice4
claim which is based on the negligent failure of the physician or other health care5
provider to disclose or adequately to disclose the risks and hazards involved in the6
medical care or surgical procedure rendered by the physician or other health care7
provider:8
(a) Both the disclosure made as provided in Subsection M of this Section and9
the failure to disclose based on inclusion of any medical care or surgical procedure10
on the panel's list for which disclosure is not required shall be admissible in evidence11
and shall create a rebuttable presumption that the requirements of Subsections M and12
N of this Section have been complied with and this presumption shall be included in13
the charge to the jury.14
(b) The failure to disclose the risks and hazards involved in any medical care15
or surgical procedure required to be disclosed under Subsections M and N of this16
Section shall be admissible in evidence and shall create a rebuttable presumption of17
a negligent failure to conform to the duty of disclosure set forth in Subsections M18
and N of this Section, and this presumption shall be included in the charge to the19
jury; but failure to disclose may be found not to be negligent, if there was an20
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not21
medically feasible to make a disclosure of the kind that would otherwise have been22
negligence.23
(2) If medical care is rendered or a surgical procedure performed with24
respect to which the panel has not made a determination regarding a duty of25
disclosure, the physician or other health care provider is under the general duty to26
disclose otherwise imposed by R.S. 40:1299.39.5.27 HLS 12RS-720 REENGROSSED
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P. In order to be covered by the provisions of this Section, the physician or1
other health care provider who will actually perform the contemplated medical or2
surgical procedure shall:3
(1) Disclose the risks and hazards in the form and to the degree required by4
the panel.5
(2) Disclose additional risks, if any, particular to a patient because of a6
complicating medical condition, either told to the physician or other health care7
provider by the patient or his representative in a medical history of the patient or8
reasonably discoverable by such physician or other health care provider.9
(3) Disclose reasonable therapeutic alternatives and risks associated with10
such alternatives.11
(4) Relate that he is obtaining a consent to medical treatment pursuant to the12
lists formulated by the Louisiana Medical Disclosure Panel.13
(5) Provide an opportunity to ask any questions about the contemplated14
medical or surgical procedure, risks, or alternatives and acknowledge in writing that15
he answered such questions, to the patient or other person authorized to give consent16
to medical treatment, receipt of which shall be acknowledged in writing.17
Q. The department shall maintain a searchable database of all current18
medical disclosure lists and make such database available to the public on the19
website of the department.20
R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:11 et21
seq., or any other law, if any member of the panel is physically present at a meeting,22
any number of the other members of the panel may attend the meeting by use of23
telephone conference call, videoconferencing, or other similar telecommunication24
methods for purposes of establishing a quorum or voting or for any other meeting25
purpose allowing a panel member to fully participate in any panel meeting. The26
provisions of this Subsection shall apply without regard to the subject matter27
discussed or considered by the panel at the meeting. A meeting held by telephone28
conference call, videoconferencing, or other similar telecommunication method:29 HLS 12RS-720 REENGROSSED
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(1) Shall be subject to the notice requirements of R.S. 42:11 et seq.1
(2) Shall not be held unless the notice of the meeting specifies the location2
of the meeting at which a member of the panel will be physically present.3
(3) Shall be open to the public and audible to the public at the location4
specified in the notice.5
(4) Shall provide two-way audio communication between all panel members6
attending the meeting during the entire meeting, and, if the two-way audio7
communication link with any member attending the meeting is disrupted at any time,8
the meeting may not continue until the two-way audio communication link is9
reestablished.10
S. The Department of Health and Hospitals, its agents or employees, or any11
person serving as a member of the panel shall not be liable to any person, firm or12
entity, public or private, for any act or omission to act arising out of a health care13
provider attempting to obtain or obtaining informed consent pursuant to the14
provisions of this Section.15
§1299.39.7. Exception to obtaining informed consent; human immunodeficiency16
virus or other infectious agents17
A. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law to18
the contrary, whenever it is determined by the hospital infection control committee19
or equivalent body that an agent or employee of a hospital, or a physician having20
privileges at the hospital, has been exposed to the blood or bodily fluids of a patient,21
in such a manner as to create any risk that the agent, employee, or physician may22
become infected with the human immunodeficiency virus or other infectious agent23
if the patient is infected with the human immunodeficiency virus or other infectious24
agent, in accordance with the infectious disease exposure guidelines of the Centers25
for Disease Control or the infectious disease exposure standards of the health care26
facility where the exposure occurred, then the hospital infection control committee27
may, without the consent of the patient, conduct such tests on blood previously28
drawn or body fluids previously collected as are necessary to determine whether the29 HLS 12RS-720 REENGROSSED
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patient is, in fact, infected with the virus or other agent believed to cause acquired1
immune deficiency syndrome or other infectious disease. If no previously drawn2
blood or collected bodily fluids are available or are suitable, the hospital may order,3
without the consent of the patient, that blood, bodily fluids, or both be drawn and4
collected from the patient to conduct the necessary tests.5
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law to6
the contrary, whenever it is determined by the infectious disease control officer of7
any law enforcement, fire service, or emergency medical service agency or8
organization that an agent or employee of the agency or organization has been9
exposed to the blood or bodily fluids of a patient while rendering emergency medical10
services, transporting, or treating an ill or injured patient in such a manner as to11
create any risk that the agent or employee may become infected with the human12
immunodeficiency virus or other infectious agent if the patient is infected with the13
human immunodeficiency virus or other infectious agent, in accordance with the14
infectious disease exposure guidelines of the Centers for Disease Control or the15
infectious disease exposure standards of the agency or organization, then the16
infectious disease control officer of the agency or organization may present the facts17
to the infection control committee of the hospital or other health care facility to18
which the patient has been transported. If the hospital infection control committee19
agrees that there has been a potential exposure to the agency or organization20
personnel, then the hospital infection control committee may, while the patient is in21
such hospital and without the consent of the patient, conduct such tests as are22
provided for in this Section.23
C. The results of the test shall not become a part of the patient's medical24
record and shall be confidential, except that the hospital may inform the exposed25
employee, agent, or physician, or the infectious disease control officer of the law26
enforcement, fire service, or emergency medical service agency of the results of the27
test.28 HLS 12RS-720 REENGROSSED
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D. In the event that the test is performed, and the results of the test are1
positive, the hospital shall inform the patient of the results and shall provide such2
follow-up testing and counseling as may be required according to the accepted3
standard of medical care.4
E. The patient shall not be charged for any tests performed pursuant to the5
provisions of this Section.6
F. Nothing in this Part shall be construed to require the hospital to perform7
the test described herein.8
* * *9
§1299.58. Consent to surgical or medical treatment for developmentally disabled10
persons and residents of state-operated nursing homes11
* * *12
C. Consent given pursuant to this Section shall be in writing and shall13
comply with the provisions of R.S. 40:1299.40(A) 40:1299.39.5(A). A copy of the14
signed written consent form and of the physician's written recommendation shall be15
placed in the resident's permanent record.16
* * *17
§1299.131. Consent to dental treatment18
A. As used in this Part: 19
* * *20
(3) Notwithstanding the provisions of this Part, a dentist who performs oral21
or maxillofacial surgery in a hospital shall be subject to the provisions of R.S.22
40:1299.40 40:1299.39.5.23
* * *24
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not25
affected 26
The legislature recognizes that confidentiality protection for information27
related to human immunodeficiency virus (HIV) infection and acquired28
immunodeficiency syndrome (AIDS) is an essential public health measure. In order29 HLS 12RS-720 REENGROSSED
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are additions.
to retain the full trust and confidence of persons at risk, the state has an interest both1
in assuring that HIV test results are not improperly disclosed and in having clear and2
certain rules for the disclosure of such information. By providing additional3
protection for the confidentiality of HIV test results, the legislature intends to4
encourage the expansion of voluntary confidential testing for HIV so that individuals5
may come forward, learn their health status, make decisions regarding the6
appropriate treatment, and change behaviors that put them and others at risk of7
infection. The legislature also recognizes that confidentiality protections can limit8
the risk of discrimination and the harm to an individual's interest in privacy that9
unauthorized disclosure of HIV test results can cause. It is not the intent of the10
legislature to create any new right, right of action, or cause of action or eliminate any11
right, right of action, or cause of action existing under current law. It is further not12
the intent of the legislature that this Chapter repeal, amend, or in any way affect the13
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician14
or employee of a hospital who may become infected with the human15
immunodeficiency virus to test the blood of a patient without the patient's consent.16
It is the intent of the legislature that in the case of a person applying for or already17
insured under an insurance policy, who will be or has been the subject of a test to18
determine infection for human immunodeficiency virus (HIV), all facets of insurers'19
practices in connection with HIV related testing and HIV test results and all facets20
of other entities' and individuals' interactions with insurers relating to HIV related21
testing or HIV test results shall be governed exclusively by Title 22 of the Louisiana22
Revised Statutes of 1950 and any regulations promulgated pursuant thereto by the23
commissioner of the Department of Insurance who shall have the authority to24
promulgate such regulations.25
Section 3. All existing medical disclosure lists duly promulgated by either a prior26
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and27
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly28 HLS 12RS-720 REENGROSSED
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are additions.
created Louisiana Medical Disclosure Panel until such time as those lists may be updated1
and repromulgated pursuant to the provisions of this Act.2
Section 4. This Act shall become effective upon signature by the governor or, if not3
signed by the governor, upon expiration of the time for bills to become law without signature4
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If5
vetoed by the governor and subsequently approved by the legislature, this Act shall become6
effective on the day following such approval.7
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 within DHH.
Present law provides for the transfer of agencies and functions to DHH.
Proposed law retains present law and adds 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:
(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 HLS 12RS-720 REENGROSSED
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Association and one shall be selected from a list of nominees submitted to the
governor by the La. Association of Defense Counsel.
(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.
(5)One member licensed to practice podiatry in the state who shall be selected from a
list of nominees submitted to the governor by the Louisiana Podiatric Medical
Association.
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, the podiatrist, 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.
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. HLS 12RS-720 REENGROSSED
HB NO. 866
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are additions.
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.
(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.
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 HLS 12RS-720 REENGROSSED
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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.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 36:802(intro. para.) and R.S. 40:1299.39.5-1299.39.7, 1299.58(C),
1299.131(A)(3), and 1300.11; Adds R.S. 36:259(MM))
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.
House Floor Amendments to the engrossed bill.
1. Added provision placing the La. Medical Disclosure Panel within DHH.
2. Added a podiatrist as a member of the La. Medical Disclosure Panel.