ENROLLED
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ACT No. 600
Regular Session, 2012
HOUSE BILL NO. 866
BY REPRESENTATIVE ABRAMSON
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
powers, duties, functions, and responsibilities in the manner provided for agencies21
transferred in accordance with the provisions of R.S. 36:802.22
* * *23 ENROLLEDHB NO. 866
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§802. Transfer; retention of policymaking and rulemaking functions1
The agencies transferred by the provisions of R.S. 36:209(Q), 239(E),2
259(B), 259(T), 259(MM), 309(B), 359(B), 409(C), 459(B), 509(B), 610(B), 629(I),3
and 769(C) shall continue to be composed and selected as provided by law, and each4
shall continue to exercise all of the powers, duties, functions, and responsibilities5
provided or authorized for each by the constitution or laws which are in the nature6
of policymaking, rulemaking, licensing, regulations, enforcement, or adjudication7
and also shall continue to exercise all advisory powers, duties, functions, and8
responsibilities provided by law. Such powers, duties, functions, and responsibilities9
shall be exercised independently of the secretary and any assistant secretary, except10
that:11
* * *12
Section 2. 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
marking, or affirmative action through electronic means pursuant to R.S.21
40:1299.40.1, to any medical or surgical procedure or course of procedures which22
sets forth in general terms the nature and purpose of the procedure or procedures,23
together with the known risks, if any, of death, brain damage, quadriplegia,24
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars25
associated with such procedure or procedures; acknowledges that such disclosure of26
information has been made and that all questions asked about the procedure or27
procedures have been answered in a satisfactory manner; and is evidenced by a28 ENROLLEDHB NO. 866
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signature, marking, or affirmative action through electronic means, by the patient for1
whom the procedure is to be performed, or if the patient for any reason lacks legal2
capacity to consent, by a person who has legal authority to consent on behalf of such3
patient in such circumstances. Such consent shall be presumed to be valid and4
effective, in the absence of proof that execution of the consent was induced by5
misrepresentation of material facts.6
(2) In addition to the information required to be disclosed in Paragraph (1)7
of this Subsection, where the medical treatment involves the surgical implantation8
of "Norplant" contraceptive devices, the explanation to the patient shall include the9
known and significant or other material risks, the known adverse results, and10
alternative methods of contraception.11
B. Except as provided in Subsection A of this Section, no evidence shall be12
admissible to modify or limit the authorization for performance of the procedure or13
procedures set forth in such consent.14
C. Where consent to medical treatment from a patient, or from a person15
authorized by law to consent to medical treatment for such patient, is secured other16
than in accordance with Subsection A above of this Section, the explanation to the17
patient or to the person consenting for such patient shall include the matters set forth18
in Paragraph (1) of Subsection A above Subsection A of this Section, and an19
opportunity shall be afforded for asking questions concerning the procedures to be20
performed which shall be answered in a satisfactory manner. Such consent shall be21
valid and effective and is subject to proof according to the rules of evidence in22
ordinary cases.23
D.(1) Notwithstanding this Section or any other law to the contrary,24
whenever it is determined by the hospital infection control committee or equivalent25
body that an agent or employee of a hospital, or a physician having privileges at the26
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner27
as to create any risk that the agent, employee, or physician may become infected with28 ENROLLEDHB NO. 866
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the human immunodeficiency virus or other infectious agent if the patient is infected1
with the human immunodeficiency virus or other infectious agent, in accordance2
with the infectious disease exposure guidelines of the Centers for Disease Control3
or the infectious disease exposure standards of the health care facility where the4
exposure occurred, then the hospital infection control committee may, without the5
consent of the patient, conduct such tests on blood previously drawn or body fluids6
previously collected as are necessary to determine whether the patient is, in fact,7
infected with the virus or other agent believed to cause acquired immune deficiency8
syndrome or other infectious disease. If no previously drawn blood or collected9
bodily fluids are available or are suitable, the hospital may order, without the consent10
of the patient, that blood, bodily fluids, or both be drawn and collected from the11
patient to conduct the necessary tests.12
(2) Notwithstanding this Section or any other law to the contrary, whenever13
it is determined by the infectious disease control officer of any law enforcement, fire14
service, or emergency medical service agency or organization that an agent or15
employee of the agency or organization has been exposed to the blood or bodily16
fluids of a patient while rendering emergency medical services, transporting, or17
treating an ill or injured patient in such a manner as to create any risk that the agent18
or employee may become infected with the human immunodeficiency virus or other19
infectious agent if the patient is infected with the human immunodeficiency virus or20
other infectious agent, in accordance with the infectious disease exposure guidelines21
of the Centers for Disease Control or the infectious disease exposure standards of the22
agency or organization, then the infectious disease control officer of the agency or23
organization may present the facts to the infection control committee of the hospital24
or other health care facility to which the patient has been transported. If the hospital25
infection control committee agrees that there has been a potential exposure to the26
agency or organization personnel, then the hospital infection control committee may,27
while the patient is in such hospital and without the consent of the patient, conduct28
such tests as are provided for in R.S. 40:1299.40(D)(1).29 ENROLLEDHB NO. 866
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(3) The results of the test shall not become a part of the patient's medical1
record and shall be confidential, except that the hospital may inform the exposed2
employee, agent, or physician, or the infectious disease control officer of the law3
enforcement, fire service, or emergency medical service agency of the results of the4
test.5
(4) In the event that the test is performed, and the results of the test are6
positive, the hospital shall inform the patient of the results and shall provide such7
follow-up testing and counseling as may be required according to the accepted8
standard of medical care.9
(5) The patient shall not be charged for any tests performed under this10
Subsection.11
(6) Nothing herein shall be construed to require the hospital to perform the12
test described herein.13
E.(1) As used in this Subsection, "secretary" means the secretary of the14
Department of Health and Hospitals.15
(2)(a) D. In a suit against a physician or other health care provider involving16
a health care liability or medical malpractice claim which is based on the failure of17
the physician or other health care provider to disclose or adequately to disclose the18
risks and hazards involved in the medical care or surgical procedure rendered by the19
physician or other health care provider, the only theory on which recovery may be20
obtained is that of negligence in failing to disclose the risks or hazards that could21
have influenced a reasonable person in making a decision to give or withhold22
consent.23
(b) E. Consent to medical treatment may be evidenced according to the24
provisions of Subsections A and C of this Section or, as an alternative, a physician25
or other health care provider may choose to avail himself of the lists established by26
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this27
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's28
consent to medical treatment.29 ENROLLEDHB NO. 866
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(3) The secretary shall determine which risks and hazards related to medical1
care and surgical procedures must be disclosed by a physician or other health care2
provider to a patient or person authorized to consent for a patient and to establish the3
general form and substance of such disclosure.4
(4)(a) To the extent feasible, the secretary shall identify and make a thorough5
examination of all medical treatments and surgical procedures in which physicians6
and other health care providers may be involved in order to determine which of those7
treatments and procedures do and do not require disclosure of the risks and hazards8
to the patient or person authorized to consent for the patient.9
(b) The secretary shall prepare separate lists of those medical treatments and10
surgical procedures that do and do not require disclosure and for those treatments11
and procedures that do require disclosure shall establish the degree of disclosure12
required and the form in which the disclosure will be made.13
(c) Lists prepared under Subparagraph (b) of this Paragraph together with14
written explanations of the degree and form of disclosure shall be promulgated15
according to the Administrative Procedure Act. The form of the disclosure and16
manner in which such disclosure will be made shall be subject to legislative17
oversight by the House and Senate health and welfare committees. The lists18
compiled and published and rules promulgated relative to the form and manner of19
disclosure according to the provisions of this Subsection and evidence of such20
disclosures or failure to disclose by a physician or other health care provider as21
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health22
care liability suit or medical malpractice claim involving medical care rendered or23
a surgical procedure performed on or after March 1, 1991.24
(d) At least annually, or at such other period as the secretary may determine,25
the secretary shall identify and examine any new medical treatments and surgical26
procedures that have been developed since its last determinations, shall assign them27
to the proper list, and shall establish the degree of disclosure required and the form28 ENROLLEDHB NO. 866
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in which the disclosure shall be made. The secretary shall also review and examine1
such treatments and procedures for the purpose of revising lists previously published.2
These determinations shall be published in the same manner as described in3
Subparagraph (c) of this Paragraph.4
(5) Before a patient or a person authorized to consent for a patient gives5
consent to any medical or surgical procedure that appears on the list requiring6
disclosure, the physician or other health care provider shall disclose to the patient,7
or person authorized to consent for the patient, the risks and hazards involved in that8
kind of care or procedure. A physician or other health care provider may choose to9
utilize the lists prepared by the secretary and shall be considered to have complied10
with the requirements of this Subsection if disclosure is made as provided in11
Paragraph (6) of this Subsection.12
(6) Consent to medical care that appears on the secretary's list requiring13
disclosure shall be considered effective under this Subsection, if it is given by the14
patient or a person authorized to give the consent and by a competent witness, and15
if the consent specifically states, in such terms and language that a layman would be16
expected to understand, the risks and hazards that are involved in the medical care17
or surgical procedure in the form and to the degree required by the secretary under18
Paragraph (4) of this Subsection.19
(7)(a) In a suit against a physician or other health care provider involving a20
health care liability or medical malpractice claim which is based on the negligent21
failure of the physician or other health care provider to disclose or adequately to22
disclose the risks and hazards involved in the medical care or surgical procedure23
rendered by the physician or other health care provider:24
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection25
and the failure to disclose based on inclusion of any medical care or surgical26
procedure on the secretary's list for which disclosure is not required shall be27
admissible in evidence and shall create a rebuttable presumption that the28
requirements of Paragraphs (5) and (6) of this Subsection have been complied with,29
and this presumption shall be included in the charge to the jury; and30 ENROLLEDHB NO. 866
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(ii) The failure to disclose the risks and hazards involved in any medical care1
or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this2
Subsection shall be admissible in evidence and shall create a rebuttable presumption3
of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5)4
and (6) of this Subsection, and this presumption shall be included in the charge to the5
jury; but failure to disclose may be found not to be negligent, if there was an6
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not7
medically feasible to make a disclosure of the kind that would otherwise have been8
negligence.9
(b) If medical care is rendered or a surgical procedure performed with10
respect to which the secretary has not made a determination regarding a duty of11
disclosure, the physician or other health care provider is under the general duty to12
disclose otherwise imposed by this Section.13
(c) In order to be covered by the provisions of this Subsection, the physician14
or other health care provider who will actually perform the contemplated medical or15
surgical procedure shall:16
(i) Disclose the risks and hazards in the form and to the degree required by17
the secretary;18
(ii) Disclose additional risks, if any, particular to a patient because of a19
complicating medical condition, either told to the physician or other health care20
provider by the patient or his representative in a medical history of the patient or21
reasonably discoverable by such physician or other health care provider;22
(iii) Disclose reasonable therapeutic alternatives and risks associated with23
such alternatives;24
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the25
lists formulated by the secretary; and26
(v) Provide an opportunity to ask any questions about the contemplated27
medical or surgical procedure, risks, or alternatives and acknowledge in writing that28
he answered such questions, to the patient or other person authorized to give consent29
to medical treatment, receipt of which shall be acknowledged in writing.30 ENROLLEDHB NO. 866
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F. Notwithstanding the provisions of Subsection E of this Section, consent1
for dental treatment rendered by dentists not performing oral and maxillofacial2
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.3
40:1299.131.4
§1299.39.6. Louisiana Medical Disclosure Panel; creation; membership; powers;5
duties6
A. As used in this Section, the following terms shall mean:7
(1) "Panel" means the Louisiana Medical Disclosure Panel.8
(2) "Department" means the Department of Health and Hospitals.9
B.(1) The Louisiana Medical Disclosure Panel is hereby created within the10
department to determine which risks and hazards related to medical care and surgical11
procedures must be disclosed by a physician or other health care provider to a patient12
or person authorized to consent for a patient and to establish the general form and13
substance of such disclosure.14
(2) The panel shall be comprised of the following members who shall be15
appointed by the governor and submitted to the Senate for confirmation:16
(a) Two members licensed to practice dentistry. One member who17
specializes in oral and maxillofacial surgery shall be selected from a list of nominees18
submitted to the governor by the Louisiana Society of Oral and Maxillofacial19
Surgeons. The other member shall be selected from a list of nominees submitted to20
the governor by the Louisiana Dental Association.21
(b) Four members licensed to practice law in this state, of whom three shall22
be selected from a list of nominees submitted to the governor by the Louisiana23
Association for Justice and one shall be selected from a list of nominees submitted24
to the governor by the Louisiana Association of Defense Counsel.25
(c) Six members licensed to practice medicine in this state who shall be26
selected from a list of nominees submitted to the governor by the Louisiana State27
Medical Society. One of the six physicians shall be a hospital-employed physician.28 ENROLLEDHB NO. 866
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(d) One member licensed to practice chiropractic in this state who shall be1
selected from a list of nominees submitted to the governor by the Chiropractic2
Association of Louisiana.3
(e) One member licensed to practice podiatry in the state who shall be4
selected from a list of nominees submitted to the governor by the Louisiana Podiatric5
Medical Association.6
(f) One member licensed to practice optometry in this state who shall be7
selected from a list of nominees submitted to the governor by the Optometry8
Association of Louisiana.9
(g) One member licensed as a nurse practitioner in this state who shall be10
selected from a list of nominees submitted to the governor by the Louisiana11
Association of Nurse Practitioners.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, the podiatrist, the optometrist, the nurse practitioner, one15
attorney, and two physicians shall serve a term of two years, or until a successor is16
appointed and qualified.17
(2) Two attorneys, two physicians, and one dentist shall serve a term of four18
years, or until a successor is appointed and qualified.19
(3) One attorney and two physicians shall serve a term of six years, or until20
a successor is appointed and qualified.21
(4) Thereafter, at the expiration of the term of each member of the panel, the22
governor shall appoint a successor and such successor shall serve for a term of six23
years, or until his successor is appointed and qualified.24
D. Any member of the panel who is absent for three consecutive meetings25
without the consent of a majority of the panel at each such meeting may be removed26
by the governor at the request of the panel present submitted in writing and signed27
by the chairman. Upon the death, resignation, or removal of any member, the28
secretary of the department shall fill the vacancy by selection, subject to29
confirmation by the Senate, for the unexpired portion of the term.30 ENROLLEDHB NO. 866
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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
participate only 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 ENROLLEDHB NO. 866
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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 Section 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 Section, if29
it is given in writing, signed by the patient or a person authorized to give the consent30 ENROLLEDHB NO. 866
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and by a competent witness, and if the written consent specifically states, in such1
terms and language that a layman would be expected to understand, the risks and2
hazards that are involved in the medical care or surgical procedure in the form and3
to the degree required by the panel pursuant to the provisions of this Section.4
O.(1) All the following requirements shall apply in a suit against a physician5
or other health care provider involving a health care liability or medical malpractice6
claim that is based on the negligent failure of the physician or other health care7
provider to disclose or adequately to disclose the risks and hazards involved in the8
medical care or surgical procedure rendered by the physician or other health care9
provider:10
(a) Both the disclosure made as provided in Subsection M of this Section and11
the failure to disclose based on inclusion of any medical care or surgical procedure12
on the panel's list for which disclosure is not required shall be admissible in evidence13
and shall create a rebuttable presumption that the requirements of Subsections M and14
N of this Section have been complied with and this presumption shall be included in15
the charge to the jury.16
(b) The failure to disclose the risks and hazards involved in any medical care17
or surgical procedure required to be disclosed under Subsections M and N of this18
Section shall be admissible in evidence and shall create a rebuttable presumption of19
a negligent failure to conform to the duty of disclosure set forth in Subsections M20
and N of this Section, and this presumption shall be included in the charge to the21
jury. However, failure to disclose may be found not to be negligent, if there was an22
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not23
medically feasible to make a disclosure of the kind that would otherwise have been24
negligence.25
(2) If medical care is rendered or a surgical procedure performed with26
respect to which the panel has not made a determination regarding a duty of27
disclosure, the physician or other health care provider is under the general duty to28
disclose otherwise imposed by R.S. 40:1299.39.5.29 ENROLLEDHB NO. 866
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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 ENROLLEDHB NO. 866
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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 shall 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, the hospital infection control committee may,27
without the consent of the patient, conduct such tests on blood previously drawn or28 ENROLLEDHB NO. 866
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body fluids previously collected as are necessary to determine whether the patient1
is, in fact, infected with the virus or other agent believed to cause acquired immune2
deficiency syndrome or other infectious disease. If no previously drawn blood or3
collected bodily fluids are available or are suitable, the hospital may order, without4
the consent of the patient, that blood, bodily fluids, or both be drawn and collected5
from the patient to conduct the necessary tests.6
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law to7
the contrary, whenever it is determined by the infectious disease control officer of8
any law enforcement, fire service, or emergency medical service agency or9
organization that an agent or employee of the agency or organization has been10
exposed to the blood or bodily fluids of a patient while rendering emergency medical11
services, transporting, or treating an ill or injured patient in such a manner as to12
create any risk that the agent or employee may become infected with the human13
immunodeficiency virus or other infectious agent if the patient is infected with the14
human immunodeficiency virus or other infectious agent, in accordance with the15
infectious disease exposure guidelines of the Centers for Disease Control or the16
infectious disease exposure standards of the agency or organization, then the17
infectious disease control officer of the agency or organization may present the facts18
to the infection control committee of the hospital or other health care facility to19
which the patient has been transported. If the hospital infection control committee20
agrees that there has been a potential exposure to the agency or organization21
personnel, the hospital infection control committee may, while the patient is in such22
hospital and without the consent of the patient, conduct such tests as are provided for23
in this Section.24
C. The results of the test shall not become a part of the patient's medical25
record and shall be confidential, except that the hospital may inform the exposed26
employee, agent, or physician, or the infectious disease control officer of the law27
enforcement, fire service, or emergency medical service agency of the results of the28
test.29 ENROLLEDHB NO. 866
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are additions.
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
to retain the full trust and confidence of persons at risk, the state has an interest both30 ENROLLEDHB NO. 866
Page 18 of 19
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are additions.
in assuring that HIV test results are not improperly disclosed and in having clear and1
certain rules for the disclosure of such information. By providing additional2
protection for the confidentiality of HIV test results, the legislature intends to3
encourage the expansion of voluntary confidential testing for HIV so that individuals4
may come forward, learn their health status, make decisions regarding the5
appropriate treatment, and change behaviors that put them and others at risk of6
infection. The legislature also recognizes that confidentiality protections can limit7
the risk of discrimination and the harm to an individual's interest in privacy that8
unauthorized disclosure of HIV test results can cause. It is not the intent of the9
legislature to create any new right, right of action, or cause of action or eliminate any10
right, right of action, or cause of action existing under current law. It is further not11
the intent of the legislature that this Chapter repeal, amend, or in any way affect the12
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician13
or employee of a hospital who may become infected with the human14
immunodeficiency virus to test the blood of a patient without the patient's consent.15
It is the intent of the legislature that in the case of a person applying for or already16
insured under an insurance policy, who will be or has been the subject of a test to17
determine infection for human immunodeficiency virus (HIV), all facets of insurers'18
practices in connection with HIV related testing and HIV test results and all facets19
of other entities' and individuals' interactions with insurers relating to HIV related20
testing or HIV test results shall be governed exclusively by Title 22 of the Louisiana21
Revised Statutes of 1950 and any regulations promulgated pursuant thereto by the22
commissioner of the Department of Insurance who shall have the authority to23
promulgate such regulations.24
Section 3. All existing medical disclosure lists duly promulgated by either a prior25
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and26
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly27
created Louisiana Medical Disclosure Panel until such time as those lists may be updated28
and repromulgated pursuant to the provisions of this Act.29 ENROLLEDHB NO. 866
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are additions.
Section 4. This Act shall become effective upon signature by the governor or, if not1
signed by the governor, upon expiration of the time for bills to become law without signature2
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If3
vetoed by the governor and subsequently approved by the legislature, this Act shall become4
effective on the day following such approval.5
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: