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Regular Session, 2012
SENATE BILL NO. 239
BY SENATOR MURRAY
HEALTH CARE. Provides the methods of obtaining informed consent and creates the
Louisiana Medical Disclosure Panel. (gov sig)
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 1299.58(C),3
1299.131(A)(3), and 1300.11, and to enact R.S. 36:259(MM), relative to informed4
consent; to provide for methods in which informed consent may be obtained; to5
create the Louisiana Medical Disclosure Panel within the Department of Health and6
Hospitals; to provide for definitions; to provide for membership and terms; to7
provide for powers and duties; to provide for medical disclosure lists; to provide for8
exceptions to obtaining informed consent; to provide for the promulgation of rules9
and regulations; to provide for an effective date; and to provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 36:259(MM) is hereby enacted to read as follows:12
§259. Transfer of agencies and functions to Department of Health and Hospitals13
* * *14
MM. The Louisiana Medical Disclosure Panel (R.S. 40:1299.39.6) is15
placed within the Department of Health and Hospitals and shall exercise and16
perform its powers, duties, functions, and responsibilities as provided by or17 SB NO. 239
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pursuant to law.1
Section 2. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of2
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, and 1299.58(C), 1299.131(A)(3),3
and 1300.11 are hereby amended and reenacted to read as follows:4
PART XXII. UNIFORM CONSENT LAW5
§1299.40. § 1299.39.5. Consent to medical treatment; exception; availability of lists6
to establish necessity and degree methods of obtaining consent7
A.(1) Notwithstanding any other law to the contrary, written consent to8
medical treatment means the voluntary permission of a patient, through signature,9
marking, or affirmative action through electronic means pursuant to R.S.10
40:1299.40.1, to any medical or surgical procedure or course of procedures which11
sets forth in general terms the nature and purpose of the procedure or procedures,12
together with the known risks, if any, of death, brain damage, quadriplegia,13
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars14
associated with such procedure or procedures; acknowledges that such disclosure of15
information has been made and that all questions asked about the procedure or16
procedures have been answered in a satisfactory manner; and is evidenced by a17
signature, marking, or affirmative action through electronic means, by the patient for18
whom the procedure is to be performed, or if the patient for any reason lacks legal19
capacity to consent, by a person who has legal authority to consent on behalf of such20
patient in such circumstances. Such consent shall be presumed to be valid and21
effective, in the absence of proof that execution of the consent was induced by22
misrepresentation of material facts.23
(2) In addition to the information required to be disclosed in Paragraph (1)24
of this Subsection, where the medical treatment involves the surgical implantation25
of "Norplant" contraceptive devices, the explanation to the patient shall include the26
known and significant or other material risks, the known adverse results, and27
alternative methods of contraception.28
B. Except as provided in Subsection A of this Section, no evidence shall be29 SB NO. 239
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admissible to modify or limit the authorization for performance of the procedure or1
procedures set forth in such consent.2
C. Where consent to medical treatment from a patient, or from a person3
authorized by law to consent to medical treatment for such patient, is secured other4
than in accordance with Subsection A above, the explanation to the patient or to the5
person consenting for such patient shall include the matters set forth in Paragraph (1)6
of Subsection A of this Section above, and an opportunity shall be afforded for7
asking questions concerning the procedures to be performed which shall be answered8
in a satisfactory manner. Such consent shall be valid and effective and is subject to9
proof according to the rules of evidence in ordinary cases.10
D.(1) Notwithstanding this Section or any other law to the contrary,11
whenever it is determined by the hospital infection control committee or equivalent12
body that an agent or employee of a hospital, or a physician having privileges at the13
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner14
as to create any risk that the agent, employee, or physician may become infected with15
the human immunodeficiency virus or other infectious agent if the patient is infected16
with the human immunodeficiency virus or other infectious agent, in accordance17
with the infectious disease exposure guidelines of the Centers for Disease Control18
or the infectious disease exposure standards of the health care facility where the19
exposure occurred, then the hospital infection control committee may, without the20
consent of the patient, conduct such tests on blood previously drawn or body fluids21
previously collected as are necessary to determine whether the patient is, in fact,22
infected with the virus or other agent believed to cause acquired immune deficiency23
syndrome or other infectious disease. If no previously drawn blood or collected24
bodily fluids are available or are suitable, the hospital may order, without the consent25
of the patient, that blood, bodily fluids, or both be drawn and collected from the26
patient to conduct the necessary tests.27
(2) Notwithstanding this Section or any other law to the contrary, whenever28
it is determined by the infectious disease control officer of any law enforcement, fire29 SB NO. 239
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service, or emergency medical service agency or organization that an agent or1
employee of the agency or organization has been exposed to the blood or bodily2
fluids of a patient while rendering emergency medical services, transporting, or3
treating an ill or injured patient in such a manner as to create any risk that the agent4
or employee may become infected with the human immunodeficiency virus or other5
infectious agent if the patient is infected with the human immunodeficiency virus or6
other infectious agent, in accordance with the infectious disease exposure guidelines7
of the Centers for Disease Control or the infectious disease exposure standards of the8
agency or organization, then the infectious disease control officer of the agency or9
organization may present the facts to the infection control committee of the hospital10
or other health care facility to which the patient has been transported. If the hospital11
infection control committee agrees that there has been a potential exposure to the12
agency or organization personnel, then the hospital infection control committee may,13
while the patient is in such hospital and without the consent of the patient, conduct14
such tests as are provided for in R.S. 40:1299.40(D)(1).15
(3) The results of the test shall not become a part of the patient's medical16
record and shall be confidential, except that the hospital may inform the exposed17
employe e, agent, or physician, or the infectious disease control officer of the law18
enforcement, fire service, or emergency medical service agency of the results of the19
test.20
(4) In the event that the test is performed, and the results of the test are21
positive, the hospital shall inform the patient of the results and shall provide such22
follow-up testing and counseling as may be required according to the accepted23
standard of medical care.24
(5) The patient shall not be charged for any tests performed under this25
Subsection.26
(6) Nothing herein shall be construed to require the hospital to perform the27
test described herein.28
E.(1) As used in this Subsection, "secretary" means the secretary of the29 SB NO. 239
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Department of Health and Hospitals.1
0 (2)(a) D. In a suit against a physician or other health care provider involving2
a health care liability or medical malpractice claim which is based on the failure of3
the physician or other health care provider to disclose or adequately to disclose the4
risks and hazards involved in the medical care or surgical procedure rendered by the5
physician or other health care provider, the only theory on which recovery may be6
obtained is that of negligence in failing to disclose the risks or hazards that could7
have influenced a reasonable person in making a decision to give or withhold8
consent.9
(b) E. Consent to medical treatment may be evidenced according to the10
provisions of Subsections A and C of this Section or, as an alternative, a physician11
or other health care provider may choose to avail himself of the lists established by12
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this13
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's14
consent to medical treatment.15
(3) The secretary shall determine which risks and hazards related to medical16
care and surgical procedures must be disclosed by a physician or other health care17
provider to a patient or person authorized to consent for a patient and to establish the18
general form and substance of such disclosure.19
(4)(a) To the extent feasible, the secretary shall identify and make a thorough20
examination of all medical treatments and surgical procedures in which physicians21
and other health care providers may be involved in order to determine which of those22
treatments and procedures do and do not require disclosure of the risks and hazards23
to the patient or person authorized to consent for the patient.24
(b) The secretary shall prepare separate lists of those medical treatments and25
surgical procedures that do and do not require disclosure and for those treatments26
and procedures that do require disclosure shall establish the degree of disclosure27
required and the form in which the disclosure will be made.28
(c) Lists prepared under Subparagraph (b) of this Paragraph together with29 SB NO. 239
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written explanations of the degree and form of disclosure shall be promulgated1
according to the Administrative Procedure Act. The form of the disclosure and2
manner in which such disclosure will be made shall be subject to legislative3
oversight by the House and Senate health and welfare committees. The lists4
compiled and published and rules promulgated relative to the form and manner of5
disclosure according to the provisions of this Subsection and evidence of such6
disclosures or failure to disclose by a physician or other health care provider as7
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health8
care liability suit or medical malpractice claim involving medical care rendered or9
a surgical procedure performed on or after March 1, 1991.10
(d) At least annually, or at such other period as the secretary may determine,11
the secretary shall identify and examine any new medical treatments and surgical12
procedures that have been developed since its last determinations, shall assign them13
to the proper list, and shall establish the degree of disclosure required and the form14
in which the disclosure shall be made. The secretary shall also review and examine15
such treatments and procedures for the purpose of revising lists previously published.16
These determinations shall be published in the same manner as described in17
Subparagraph (c) of this Paragraph.18
(5) Before a patient or a person authorized to consent for a patient gives19
consent to any medical or surgical procedure that appears on the list requiring20
disclosure, the physician or other health care provider shall disclose to the patient,21
or person authorized to consent for the patient, the risks and hazards involved in that22
kind of care or procedure. A physician or other health care provider may choose to23
utilize the lists prepared by the secretary and shall be considered to have complied24
with the requirements of this Subsection if disclosure is made as provided in25
Paragraph (6) of this Subsection.26
(6) Consent to medical care that appears on the secretary's list requiring27
disclosure shall be considered effective under this Subsection, if it is given by the28
patient or a person authorized to give the consent and by a competent witness, and29 SB NO. 239
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if the consent specifically states, in such terms and language that a layman would be1
expected to understand, the risks and hazards that are involved in the medical care2
or surgical procedure in the form and to the degree required by the secretary under3
Paragraph (4) of this Subsection.4
(7)(a) In a suit against a physician or other health care provider involving a5
health care liability or medical malpractice claim which is based on the negligent6
failure of the physician or other health care provider to disclose or adequately to7
disclose the risks and hazards involved in the medical care or surgical procedure8
rendered by the physician or other health care provider:9
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection10
and the failure to disclose based on inclusion of any medical care or surgical11
procedure on the secretary's list for which disclosure is not required shall be12
admissible in evidence and shall create a rebuttable presumption that the13
requirements of Paragraphs (5) and (6) of this Subsection have been complied with,14
and this presumption shall be included in the charge to the jury; and15
(ii) The failure to disclose the risks and hazards involved in any medical care16
or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this17
Subsection shall be admissible in evidence and shall create a rebuttable presumption18
of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5)19
and (6) of this Subsection, and this presumption shall be included in the charge to the20
jury; but failure to disclose may be found not to be negligent, if there was an21
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not22
medically feasible to make a disclosure of the kind that would otherwise have been23
negligence.24
(b) If medical care is rendered or a surgical procedure performed with respect25
to which the secretary has not made a determination regarding a duty of disclosure,26
the physician or other health care provider is under the general duty to disclose27
otherwise imposed by this Section.28
(c) In order to be covered by the provisions of this Subsection, the physician29 SB NO. 239
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or other health care provider who will actually perform the contemplated medical or1
surgical procedure shall:2
(i) Disclose the risks and hazards in the form and to the degree required by3
the secretary;4
(ii) Disclose additional risks, if any, particular to a patient because of a5
complicating medical condition, either told to the physician or other health care6
provider by the patient or his representative in a medical history of the patient or7
reasonably discoverable by such physician or other health care provider;8
(iii) Disclose reasonable therapeutic alternatives and risks associated with9
such alternatives;10
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the11
lists formulated by the secretary; and12
(v) Provide an opportunity to ask any questions about the contemplated13
medical or surgical procedure, risks, or alternatives and acknowledge in writing that14
he answered such questions, to the patient or other person authorized to give consent15
to medical treatment, receipt of which shall be acknowledged in writing.16
F. Notwithstanding the provisions of Subsection E of this Section, consent17
for dental treatment rendered by dentists not performing oral and maxillofacial18
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.19
40:1299.131.20
§1299.39.6. Louisiana Medical Disclosure Panel; creation; membership;21
powers; duties22
A. As used in this Section, the following terms shall mean:23
(1) "Panel" means the Louisiana Medical Disclosure Panel.24
(2) "Department" means the Department of Health and Hospitals.25
B. (1) The Louisiana Medical Disclosure Panel is hereby created within26
the department to determine which risks and hazards related to medical care27
and surgical procedures must be disclosed by a physician or other health care28
provider to a patient or person authorized to consent for a patient and to29 SB NO. 239
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establish the general form and substance of such disclosure.1
(2) The panel shall be comprised of the following members who shall be2
appointed by the governor and submitted to the Senate for confirmation:3
(a) One member licensed to practice dentistry who specializes in oral and4
maxillofacial surgery who shall be selected from a list of nominees submitted to5
the governor by the Louisiana Society of Oral and Maxillofacial Surgeons.6
(b) Four members licensed to practice law in this state of whom three7
shall be selected from a list of nominees submitted to the governor by the8
Louisiana Association for Justice, and one shall be selected from a list of9
nominees submitted to the governor by the Louisiana Association of Defense10
Counsel.11
(c) Six members licensed to practice medicine in this state who shall be12
selected from a list of nominees submitted to the governor by the Louisiana13
State Medical Society.14
C. The initial members of the panel shall have the following terms:15
(1) The dentist who specializes in oral and maxillofacial surgery, one16
attorney, and two physicians shall each serve a term of two years, or until a17
successor is appointed and qualified.18
(2) Two attorneys and two physicians shall each serve a term of four19
years, or until a successor is appointed and qualified.20
(3) One attorney and two physicians shall each serve a term of six years,21
or until a successor is appointed and qualified.22
(4) Thereafter, at the expiration of the term of each member of the panel,23
the governor shall appoint a successor and such successor shall serve for a term24
of six years, or until his successor is appointed and qualified.25
D. Any member of the panel who is absent for three consecutive meetings26
without the consent of a majority of the panel at each such meeting may be27
removed by the governor at the request of the panel. Such request shall be in28
writing, signed by the chairman, and approved by the panel. Upon the death,29 SB NO. 239
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resignation, or removal of any member, the secretary of the department shall1
fill the vacancy by selection, subject to Senate confirmation, for the unexpired2
portion of the term.3
E. Members of the panel shall not be entitled to per diem or any other4
compensation for their service but shall be entitled to reimbursement of any5
necessary and reasonable expense incurred in the performance of their duties6
on the panel, including travel expenses.7
F. Meetings of the panel shall be held at the call of the chairman or on8
petition of at least three members of the panel.9
G. At the first meeting of the panel each calendar year, the panelists shall10
select one of the panel members to serve as chairman and one of the panel11
members to serve as vice chairman, and each such officer shall serve for a term12
of one year. The chairman shall preside at meetings of the panel, and in his13
absence, the vice chairman shall preside.14
H. The department shall provide administrative assistance to and serve15
as the staff for the panel.16
I. The governor shall appoint the initial members of the panel no later17
than October 1, 2012, and the panel shall convene its first meeting no later than18
November 1, 2012.19
J. (1) To the extent feasible, the panel shall identify and make a thorough20
examination of all medical treatments and surgical procedures in which21
physicians and other health care providers may be involved in order to22
determine which of those treatments and procedures do and do not require23
disclosure of the risks and hazards to the patient or person authorized to24
consent for the patient. Initially, the panel shall examine all existing medical25
disclosure lists and update and repromulgate those lists under the authority26
vested in this Section. The dentist member of the panel shall only participate27
in the panel's deliberation, determination, and preparation of lists of dental28
treatments and procedures that do and do not require disclosure.29 SB NO. 239
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(2) The panel shall prepare separate lists of those medical treatments and1
surgical procedures that do and do not require disclosure. For those treatments2
and procedures that do require disclosure, the panel shall establish the degree3
of disclosure required, and the form in which the disclosure shall be made.4
(3) Lists prepared under this Section, together with the written5
explanations of the degree and form of disclosure, shall be promulgated6
according to the Administrative Procedure Act. The form of the disclosure and7
manner in which such disclosure shall be made shall be subject to legislative8
oversight by the House and Senate health and welfare committees.9
K. The lists compiled and published and rules promulgated relative to10
the form and manner of disclosure according to the provisions of this Section11
and evidence of such disclosures or failure to disclose by a physician or other12
health care provider as provided in this Section shall be admissible in a health13
care liability suit or medical malpractice claim involving medical care rendered14
or a surgical procedure performed.15
L. At least annually or at such other time period as the panel may16
determine, the panel shall identify and examine any new medical treatments17
and surgical procedures that have been developed since its last determinations,18
assign them to the proper list, establish the degree of disclosure required, and19
the form in which the disclosure shall be made. The panel shall review and20
examine such treatments and procedures for the purpose of revising lists21
previously published. These determinations shall be published in the same22
manner as described in Paragraph (J)(3) of this Section.23
M. Before a patient or a person authorized to consent for a patient gives24
consent to any medical or surgical procedure that appears on the panel's list25
requiring disclosure, the physician or other health care provider shall disclose26
to the patient or a person authorized to consent for the patient the risks and27
hazards involved in that kind of care or procedure. A physician or other health28
care provider may choose to utilize the lists prepared by the panel and shall be29 SB NO. 239
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considered to have complied with the requirements of this Subsection if1
disclosure is made as provided in Subsection N of this Section.2
N. Consent to medical care that appears on the panel's list requiring3
disclosure shall be considered effective under this Subsection if it is given in4
writing; signed by the patient or a person authorized to give the consent and by5
a competent witness; and in such terms and language that a layman would be6
expected to understand if the written consent specifically requires, the risks and7
hazards that are involved in the medical care or surgical procedure in the form8
and to the degree required by the panel under this Section.9
O. (1) In a suit against a physician or other health care provider10
involving a health care liability or medical malpractice claim which is based on11
the negligent failure of the physician or other health care provider to disclose12
or adequately to disclose the risks and hazards involved in the medical care or13
surgical procedure rendered by the physician or other health care provider:14
(a) Both the disclosure made as provided in Subsection M of this Section15
and the failure to disclose based on inclusion of any medical care or surgical16
procedure on the panel's list for which disclosure is not required shall be17
admissible in evidence and shall create a rebuttable presumption that the18
requirements of Subsections M and N of this Section have been complied with,19
and this presumption shall be included in the charge to the jury.20
(b) The failure to disclose the risks and hazards involved in any medical21
care or surgical procedure required to be disclosed under Subsections M and22
N of this Section shall be admissible in evidence and shall create a rebuttable23
presumption of a negligent failure to conform to the duty of disclosure set forth24
in Subsections M and N of this Section. This presumption shall be included in25
the charge to the jury, but failure to disclose may be found not to be negligent,26
if there was an emergency as defined in R.S. 40:2113.6(C);or, if for some other27
reason, it was not medically feasible to make a disclosure of the kind that would28
otherwise have been negligence.29 SB NO. 239
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(2) If medical care is rendered or a surgical procedure performed with1
respect to which the panel has not made a determination regarding a duty of2
disclosure, the physician or other health care provider is under the general duty3
to disclose otherwise imposed by R.S. 40:1299.39.5.4
P. In order to be covered by the provisions of this Section, the physician5
or other health care provider who will actually perform the contemplated6
medical or surgical procedure shall:7
(1) Disclose the risks and hazards in the form and to the degree required8
by the panel.9
(2) Disclose additional risks, if any, particular to a patient because of a10
complicating medical condition, either told to the physician or other health care11
provider by the patient or his representative in a medical history of the patient12
or reasonably discoverable by such physician or other health care provider.13
(3) Disclose reasonable therapeutic alternatives and risks associated with14
such alternatives.15
(4) Relate that he is obtaining a consent to medical treatment pursuant16
to the lists formulated by the Louisiana Medical Disclosure Panel.17
(5) Provide an opportunity to ask any questions about the contemplated18
medical or surgical procedure, risks, or alternatives and acknowledge in writing19
that he answered such questions, to the patient or other person authorized to20
give consent to medical treatment, receipt of which shall be acknowledged in21
writing.22
Q. The department shall maintain a searchable database of all current23
medical disclosure lists that is available to the public through the department's24
website.25
§1299.39.7. Exception to obtaining informed consent; human immunodeficiency26
virus or other infectious agents27
A. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law28
to the contrary, whenever it is determined by the hospital infection control29 SB NO. 239
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committee or equivalent body that an agent or employee of a hospital, or a1
physician having privileges at the hospital, has been exposed to the blood or2
bodily fluids of a patient, in such a manner as to create any risk that the agent,3
employee, or physician may become infected with the human immunodeficiency4
virus or other infectious agent if the patient is infected with the human5
immunodeficiency virus or other infectious agent, in accordance with the6
infectious disease exposure guidelines of the Centers for Disease Control or the7
infectious disease exposure standards of the health care facility where the8
exposure occurred, then the hospital infection control committee may, without9
the consent of the patient, conduct such tests on blood previously drawn or body10
fluids previously collected as are necessary to determine whether the patient is,11
in fact, infected with the virus or other agent believed to cause acquired immune12
deficiency syndrome or other infectious disease. If no previously drawn blood13
or collected bodily fluids are available or are suitable, the hospital may order,14
without the consent of the patient, that blood, bodily fluids, or both be drawn15
and collected from the patient to conduct the necessary tests.16
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law17
to the contrary, whenever it is determined by the infectious disease control18
officer of any law enforcement, fire service, or emergency medical service19
agency or organization that an agent or employee of the agency or organization20
has been exposed to the blood or bodily fluids of a patient while rendering21
emergency medical services, transporting, or treating an ill or injured patient22
in such a manner as to create any risk that the agent or employee may become23
infected with the human immunodeficiency virus or other infectious agent if the24
patient is infected with the human immunodeficiency virus or other infectious25
agent, in accordance with the infectious disease exposure guidelines of the26
Centers for Disease Control or the infectious disease exposure standards of the27
agency or organization, then the infectious disease control officer of the agency28
or organization may present the facts to the infection control committee of the29 SB NO. 239
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hospital or other health care facility to which the patient has been transported.1
If the hospital infection control committee agrees that there has been a potential2
exposure to the agency or organization personnel, then the hospital infection3
control committee may, while the patient is in such hospital and without the4
consent of the patient, conduct such tests as are provided for in this Section.5
C. The results of the test shall not become a part of the patient's medical6
record and shall be confidential, except that the hospital may inform the7
exposed employee, agent, or physician, or the infectious disease control officer8
of the law enforcement, fire service, or emergency medical service agency of the9
results of the test.10
D. In the event that the test is performed, and the results of the test are11
positive, the hospital shall inform the patient of the results and shall provide12
such follow-up testing and counseling as may be required according to the13
accepted standard of medical care.14
E. The patient shall not be charged for any tests performed under this15
Section.16
F. Nothing herein shall be construed to require the hospital to perform17
the test described herein.18
* * *19
§1299.58. Consent to surgical or medical treatment for developmentally disabled20
persons and residents of state-operated nursing homes21
* * *22
C. Consent given pursuant to this Section shall be in writing and shall comply23
with the provisions of R.S. 40:1299.40(A) 40:1299.39.5(A). A copy of the signed24
written consent form and of the physician's written recommendation shall be placed25
in the resident's permanent record.26
* * *27
§1299.131. Consent to dental treatment28
A. As used in this Part:29 SB NO. 239
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* * *1
(3) Notwithstanding the provisions of this Part, a dentist who performs oral2
or maxillofacial surgery in a hospital shall be subject to the provisions of R.S.3
40:1299.40 40:1299.35.5(A).4
* * *5
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not6
affected7
The legislature recognizes that confidentiality protection for information8
related to human immunodeficiency virus (HIV) infection and acquired9
immunodeficiency syndrome (AIDS) is an essential public health measure. In order10
to retain the full trust and confidence of persons at risk, the state has an interest both11
in assuring that HIV test results are not improperly disclosed and in having clear and12
certain rules for the disclosure of such information. By providing additional13
protection for the confidentiality of HIV test results, the legislature intends to14
encourage the expansion of voluntary confidential testing for HIV so that individuals15
may come forward, learn their health status, make decisions regarding the16
appropriate treatment, and change behaviors that put them and others at risk of17
infection. The legislature also recognizes that confidentiality protections can limit18
the risk of discrimination and the harm to an individual's interest in privacy that19
unauthorized disclosure of HIV test results can cause. It is not the intent of the20
legislature to create any new right, right of action, or cause of action or eliminate any21
right, right of action, or cause of action existing under current law. It is further not22
the intent of the legislature that this Chapter repeal, amend, or in any way affect the23
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician24
or employee of a hospital who may become infected with the human25
immunodeficiency virus to test the blood of a patient without the patient's consent.26
It is the intent of the legislature that in the case of a person applying for or already27
insured under an insurance policy, who will be or has been the subject of a test to28
determine infection for human immunodeficiency virus (HIV), all facets of insurers'29 SB NO. 239
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
practices in connection with HIV related testing and HIV test results and all facets1
of other entities' and individuals' interactions with insurers relating to HIV related2
testing or HIV test results shall be governed exclusively by Title 22 of the Revised3
Statutes of 1950 and any regulations promulgated pursuant thereto by the4
commissioner of the Department of Insurance who shall have the authority to5
promulgate such regulations.6
Section 3. All existing medical disclosure lists duly promulgated by either a prior7
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and8
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly9
created Louisiana Medical Disclosure Panel until such time as those lists may be updated10
and repromulgated pursuant to the provisions of this Act.11
Section 4. This Act shall become effective upon signature by the governor or, if not12
signed by the governor, upon expiration of the time for bills to become law without signature13
of the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If14
vetoed by the Governor and subsequently approved by the Legislature, this Act shall become15
effective on the day following such approval.16
The original instrument and the following digest, which constitute no part of
the legislative instrument, were prepared by Christopher D. Adams.
DIGEST
Present law provides the use of medical disclosure lists by health care providers as an
acceptable method of obtaining informed consent.
Present law provides that the secretary of the Department of Health and Hospitals 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 a person authorized to
consent for a patient. Present law provides that the secretary of the Department of Health and
Hospitals shall establish the general form and the substance of such disclosure. Present law
further provides that the secretary of the Department of Health and Hospitals shall at least
annually, or at such other period as the secretary may determine, identify and examine any
new medical treatments and surgical procedures that have been developed and shall assign
them to the proper disclosure list, establish the degree of disclosure required, and establish
the form in which the disclosure shall be made.
Present law required the Norplant contraceptive device to be included in the uniform consent
law. Proposed law removes this requirement.
Proposed law removes this duty from the secretary and places the duty into the newly
created Louisiana Medical Disclosure Panel, which is made part of the Department of Health
and Hospitals. SB NO. 239
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Proposed law provides for the following membership of the Louisiana Medical Disclosure
Panel:
(1)One member licensed to practice dentistry who specializes in oral and maxillofacial
surgery who shall be selected from a list of nominees submitted to the governor by
the Louisiana Society of Oral and Maxillofacial Surgeons.
(2)Four members licensed to practice law in this state of whom three shall be selected
from a list of nominees submitted to the governor by the Louisiana Association for
Justice, and one shall be selected from a list of nominees submitted to the governor
by the Louisiana 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 Louisiana State Medical Society.
Proposed law provides the initial members of the Louisiana Medical Disclosure Panel shall
have the following terms:
(1)The dentist who specializes in oral and maxillofacial surgery, one attorney, and two
physicians shall serve a term of two years, or until a successor is appointed and
qualified.
(2)Two attorneys and two physicians shall serve a term of four years, or until a
successor is appointed and qualified.
(3)One attorney and two physicians shall serve a term of six years, or until a successor
is appointed and qualified.
(4)Thereafter, at the expiration of the term of each member of the panel, the governor
shall appoint a successor and such successor shall serve for a term of six years, or
until his successor is appointed and qualified.
Proposed law provides for the procedure for meetings, the filling of a vacancy, and for the
removal of a member for failure to attend meetings.
Proposed law provides 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 the procedure and content of the medical disclosure lists.
Proposed law provides that the lists shall be promulgated according to the Administrative
Procedure Act.
Present law provides that the lists shall be admissible in a health care liability suit or medical
malpractice claim involving medical care rendered or a surgical procedure performed.
Present law further 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 SB NO. 239
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words in boldface type and underscored are additions.
failure of the physician or other health care provider to disclose or adequately 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 the panel's 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.
Present law provides that in order to be covered by the provisions of present law, the
physician or other health care provider who will actually perform the contemplated medical
or surgical procedure shall:
(1)Disclose the risks and hazards in the form and to the degree required by the panel.
(2)Disclose additional risks, if any, particular to a patient because of a complicating
medical condition, either told to the physician or other health care provider by the
patient or his representative in a medical history of the patient or reasonably
discoverable by such physician or other health care provider.
(3)Disclose reasonable therapeutic alternatives and risks associated with such
alternatives.
(4)Relate that he is obtaining a consent to medical treatment pursuant to the lists
formulated by the Louisiana Medical Disclosure Panel.
(5)Provide an opportunity to ask any questions about the contemplated medical or
surgical procedure, risks, or alternatives and acknowledge in writing that he
answered such questions, to the patient or other person authorized to give consent to
medical treatment, receipt of which shall be acknowledged in writing.
Proposed law requires the department to maintain a searchable database of all current
medical disclosure lists that is available to the public through the department's website.
Proposed law retains present law.
Present law provides an exception to the requirement of obtaining informed consent and may
conduct certain tests when it is determined by the hospital infection control committee or
equivalent body 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 or other infectious agent if the patient is infected with the
human immunodeficiency virus 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 but moves present law into its own statutory section. SB NO. 239
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words in boldface type and underscored are additions.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 40:1299.39.5 through 1299.39.7, 1299.58(C), 1299.131(A)(3), and 1300.11;
adds R.S. 36:259(MM))