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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, 1299.58(C),3
1299.131(A)(3), and 1300.11, to enact R.S. 36:259(MM), and to repeal R.S.4
40:1299.40, relative to informed consent; to provide for methods in which informed5
consent may be obtained; to create the Louisiana Medical Disclosure Panel within6
the Department of Health and Hospitals; to provide for definitions; to provide for7
membership and terms; to provide for powers and duties; to provide for medical8
disclosure lists; to provide for exceptions to obtaining informed consent; to provide9
for attendance of meetings via telecommunications; to provide for limitations of10
liability; to provide for the promulgation of rules and regulations; to provide for an11
effective date; and to provide for related matters.12
Be it enacted by the Legislature of Louisiana:13
Section 1. R.S. 36:259(MM) is hereby enacted to read as follows:14
§259. Transfer of agencies and functions to Department of Health and Hospitals15
* * *16
MM. The Louisiana Medical Disclosure Panel (R.S. 40:1299.39.6) is17 SB NO. 239
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placed within the Department of Health and Hospitals and shall exercise and1
perform its powers, duties, functions, and responsibilities as provided by or2
pursuant to law.3
Section 2. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of4
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, 1299.58(C), 1299.131(A)(3), and5
1300.11 are hereby amended and reenacted to read as follows:6
PART XXII. UNIFORM CONSENT LAW7
§1299.40. § 1299.39.5. Consent to medical treatment; exception; availability of lists8
to establish necessity and degree methods of obtaining consent9
A.(1) Notwithstanding any other law to the contrary, written consent to10
medical treatment means the voluntary permission of a patient, through signature,11
marking, or affirmative action through electronic means pursuant to R.S.12
40:1299.40.1, to any medical or surgical procedure or course of procedures which13
sets forth in general terms the nature and purpose of the procedure or procedures,14
together with the known risks, if any, of death, brain damage, quadriplegia,15
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars16
associated with such procedure or procedures; acknowledges that such disclosure of17
information has been made and that all questions asked about the procedure or18
procedures have been answered in a satisfactory manner; and is evidenced by a19
signature, marking, or affirmative action through electronic means, by the patient for20
whom the procedure is to be performed, or if the patient for any reason lacks legal21
capacity to consent, by a person who has legal authority to consent on behalf of such22
patient in such circumstances. Such consent shall be presumed to be valid and23
effective, in the absence of proof that execution of the consent was induced by24
misrepresentation of material facts.25
(2) In addition to the information required to be disclosed in Paragraph (1)26
of this Subsection, where the medical treatment involves the surgical implantation27
of "Norplant" contraceptive devices, the explanation to the patient shall include the28
known and significant or other material risks, the known adverse results, and29 SB NO. 239
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alternative methods of contraception.1
B. Except as provided in Subsection A of this Section, no evidence shall be2
admissible to modify or limit the authorization for performance of the procedure or3
procedures set forth in such consent.4
C. Where consent to medical treatment from a patient, or from a person5
authorized by law to consent to medical treatment for such patient, is secured other6
than in accordance with Subsection A above, the explanation to the patient or to the7
person consenting for such patient shall include the matters set forth in Paragraph (1)8
of Subsection A of this Section above, and an opportunity shall be afforded for9
asking questions concerning the procedures to be performed which shall be answered10
in a satisfactory manner. Such consent shall be valid and effective and is subject to11
proof according to the rules of evidence in ordinary cases.12
D.(1) Notwithstanding this Section or any other law to the contrary,13
whenever it is determined by the hospital infection control committee or equivalent14
body that an agent or employee of a hospital, or a physician having privileges at the15
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner16
as to create any risk that the agent, employee, or physician may become infected with17
the human immunodeficiency virus or other infectious agent if the patient is infected18
with the human immunodeficiency virus or other infectious agent, in accordance19
with the infectious disease exposure guidelines of the Centers for Disease Control20
or the infectious disease exposure standards of the health care facility where the21
exposure occurred, then the hospital infection control committee may, without the22
consent of the patient, conduct such tests on blood previously drawn or body fluids23
previously collected as are necessary to determine whether the patient is, in fact,24
infected with the virus or other agent believed to cause acquired immune deficiency25
syndrome or other infectious disease. If no previously drawn blood or collected26
bodily fluids are available or are suitable, the hospital may order, without the consent27
of the patient, that blood, bodily fluids, or both be drawn and collected from the28
patient to conduct the necessary tests.29 SB NO. 239
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(2) Notwithstanding this Section or any other law to the contrary, whenever1
it is determined by the infectious disease control officer of any law enforcement, fire2
service, or emergency medical service agency or organization that an agent or3
employee of the agency or organization has been exposed to the blood or bodily4
fluids of a patient while rendering emergency medical services, transporting, or5
treating an ill or injured patient in such a manner as to create any risk that the agent6
or employee may become infected with the human immunodeficiency virus or other7
infectious agent if the patient is infected with the human immunodeficiency virus or8
other infectious agent, in accordance with the infectious disease exposure guidelines9
of the Centers for Disease Control or the infectious disease exposure standards of the10
agency or organization, then the infectious disease control officer of the agency or11
organization may present the facts to the infection control committee of the hospital12
or other health care facility to which the patient has been transported. If the hospital13
infection control committee agrees that there has been a potential exposure to the14
agency or organization personnel, then the hospital infection control committee may,15
while the patient is in such hospital and without the consent of the patient, conduct16
such tests as are provided for in R.S. 40:1299.40(D)(1).17
(3) The results of the test shall not become a part of the patient's medical18
record and shall be confidential, except that the hospital may inform the exposed19
employee, agent, or physician, or the infectious disease control officer of the law20
enforcement, fire service, or emergency medical service agency of the results of the21
test.22
(4) In the event that the test is performed, and the results of the test are23
positive, the hospital shall inform the patient of the results and shall provide such24
follow-up testing and counseling as may be required according to the accepted25
standard of medical care.26
(5) The patient shall not be charged for any tests performed under this27
Subsection.28
(6) Nothing herein shall be construed to require the hospital to perform the29 SB NO. 239
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test described herein.1
E.(1) As used in this Subsection, "secretary" means the secretary of the2
Department of Health and Hospitals.3
(2)(a) D. In a suit against a physician or other health care provider involving4
a health care liability or medical malpractice claim which is based on the failure of5
the physician or other health care provider to disclose or adequately to disclose the6
risks and hazards involved in the medical care or surgical procedure rendered by the7
physician or other health care provider, the only theory on which recovery may be8
obtained is that of negligence in failing to disclose the risks or hazards that could9
have influenced a reasonable person in making a decision to give or withhold10
consent.11
(b) E. Consent to medical treatment may be evidenced according to the12
provisions of Subsections A and C of this Section or, as an alternative, a physician13
or other health care provider may choose to avail himself of the lists established by14
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this15
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's16
consent to medical treatment.17
(3) The secretary shall determine which risks and hazards related to medical18
care and surgical procedures must be disclosed by a physician or other health care19
provider to a patient or person authorized to consent for a patient and to establish the20
general form and substance of such disclosure.21
(4)(a) To the extent feasible, the secretary shall identify and make a thorough22
examination of all medical treatments and surgical procedures in which physicians23
and other health care providers may be involved in order to determine which of those24
treatments and procedures do and do not require disclosure of the risks and hazards25
to the patient or person authorized to consent for the patient.26
(b) The secretary shall prepare separate lists of those medical treatments and27
surgical procedures that do and do not require disclosure and for those treatments28
and procedures that do require disclosure shall establish the degree of disclosure29 SB NO. 239
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required and the form in which the disclosure will be made.1
(c) Lists prepared under Subparagraph (b) of this Paragraph together with2
written explanations of the degree and form of disclosure shall be promulgated3
according to the Administrative Procedure Act. The form of the disclosure and4
manner in which such disclosure will be made shall be subject to legislative5
oversight by the House and Senate health and welfare committees. The lists6
compiled and published and rules promulgated relative to the form and manner of7
disclosure according to the provisions of this Subsection and evidence of such8
disclosures or failure to disclose by a physician or other health care provider as9
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health10
care liability suit or medical malpractice claim involving medical care rendered or11
a surgical procedure performed on or after March 1, 1991.12
(d) At least annually, or at such other period as the secretary may determine,13
the secretary shall identify and examine any new medical treatments and surgical14
procedures that have been developed since its last determinations, shall assign them15
to the proper list, and shall establish the degree of disclosure required and the form16
in which the disclosure shall be made. The secretary shall also review and examine17
such treatments and procedures for the purpose of revising lists previously published.18
These determinations shall be published in the same manner as described in19
Subparagraph (c) of this Paragraph.20
(5) Before a patient or a person authorized to consent for a patient gives21
consent to any medical or surgical procedure that appears on the list requiring22
disclosure, the physician or other health care provider shall disclose to the patient,23
or person authorized to consent for the patient, the risks and hazards involved in that24
kind of care or procedure. A physician or other health care provider may choose to25
utilize the lists prepared by the secretary and shall be considered to have complied26
with the requirements of this Subsection if disclosure is made as provided in27
Paragraph (6) of this Subsection.28
(6) Consent to medical care that appears on the secretary's list requiring29 SB NO. 239
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disclosure shall be considered effective under this Subsection, if it is given by the1
patient or a person authorized to give the consent and by a competent witness, and2
if the consent specifically states, in such terms and language that a layman would be3
expected to understand, the risks and hazards that are involved in the medical care4
or surgical procedure in the form and to the degree required by the secretary under5
Paragraph (4) of this Subsection.6
(7)(a) In a suit against a physician or other health care provider involving a7
health care liability or medical malpractice claim which is based on the negligent8
failure of the physician or other health care provider to disclose or adequately to9
disclose the risks and hazards involved in the medical care or surgical procedure10
rendered by the physician or other health care provider:11
(i) Both the disclosure made as provided in Paragraph (5) of this Subsection12
and the failure to disclose based on inclusion of any medical care or surgical13
procedure on the secretary's list for which disclosure is not required shall be14
admissible in evidence and shall create a rebuttable presumption that the15
requirements of Paragraphs (5) and (6) of this Subsection have been complied with,16
and this presumption shall be included in the charge to the jury; and17
(ii) The failure to disclose the risks and hazards involved in any medical care18
or surgical procedure required to be disclosed under Paragraphs (5) and (6) of this19
Subsection shall be admissible in evidence and shall create a rebuttable presumption20
of a negligent failure to conform to the duty of disclosure set forth in Paragraphs (5)21
and (6) of this Subsection, and this presumption shall be included in the charge to the22
jury; but failure to disclose may be found not to be negligent, if there was an23
emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not24
medically feasible to make a disclosure of the kind that would otherwise have been25
negligence.26
(b) If medical care is rendered or a surgical procedure performed with respect27
to which the secretary has not made a determination regarding a duty of disclosure,28
the physician or other health care provider is under the general duty to disclose29 SB NO. 239
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otherwise imposed by this Section.1
(c) In order to be covered by the provisions of this Subsection, the physician2
or other health care provider who will actually perform the contemplated medical or3
surgical procedure shall:4
(i) Disclose the risks and hazards in the form and to the degree required by5
the secretary;6
(ii) Disclose additional risks, if any, particular to a patient because of a7
complicating medical condition, either told to the physician or other health care8
provider by the patient or his representative in a medical history of the patient or9
reasonably discoverable by such physician or other health care provider;10
(iii) Disclose reasonable therapeutic alternatives and risks associated with11
such alternatives;12
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the13
lists formulated by the secretary; and14
(v) Provide an opportunity to ask any questions about the contemplated15
medical or surgical procedure, risks, or alternatives and acknowledge in writing that16
he answered such questions, to the patient or other person authorized to give consent17
to medical treatment, receipt of which shall be acknowledged in writing.18
F. Notwithstanding the provisions of Subsection E of this Section, consent19
for dental treatment rendered by dentists not performing oral and maxillofacial20
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.21
40:1299.131.22
§1299.39.6. Louisiana Medical Disclosure Panel; creation; membership;23
powers; duties24
A. As used in this Section, the following terms shall mean:25
(1) "Panel" means the Louisiana Medical Disclosure Panel.26
(2) "Department" means the Department of Health and Hospitals.27
B. (1) The Louisiana Medical Disclosure Panel is hereby created within28
the department to determine which risks and hazards related to medical care29 SB NO. 239
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and surgical procedures must be disclosed by a physician or other health care1
provider to a patient or person authorized to consent for a patient and to2
establish the general form and substance of such disclosure.3
(2) The panel shall be comprised of the following members who shall be4
appointed by the governor and submitted to the Senate for confirmation:5
(a) Two members licensed to practice dentistry. One Member who6
specializes in oral and maxillofacial surgery shall be selected from a list of7
nominees submitted to the governor by the Louisiana Society of Oral and8
Maxillofacial Surgeons. The other member shall be selected from a list of9
nominees submitted to the governor by the Louisiana Dental Association.10
(b) Four members licensed to practice law in this state of whom three11
shall be selected from a list of nominees submitted to the governor by the12
Louisiana Association for Justice, and one shall be selected from a list of13
nominees submitted to the governor by the Louisiana Association of Defense14
Counsel.15
(c) Six members licensed to practice medicine in this state who shall be16
selected from a list of nominees submitted to the governor by the Louisiana17
State Medical Society. One of the six physicians shall be a hospital employed18
physician.19
(d) One member licensed to practice chiropractic in this state who shall20
be selected from a list of nominees submitted to the governor by the21
Chiropractic Association of Louisiana.22
(e) One member licensed to practice podiatry in this state who shall be23
selected from a list of nominees submitted to the governor by the Louisiana24
Podiatric Medical Association.25
(f) One member licensed to practice optometry in this state who shall be26
selected from a list of nominees submitted to the governor by the Optometry27
Association of Louisiana.28
C. The initial members of the panel shall have the following terms:29 SB NO. 239
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(1) The dentist who specializes in oral and maxillofacial surgery, the1
chiropractic physician, the podiatrist, the optometrist, one attorney, and two2
physicians shall each serve a term of two years, or until a successor is appointed3
and qualified.4
(2) Two attorneys, two physicians, and one dentist shall each serve a5
term of four years, or until a successor is appointed and qualified.6
(3) One attorney and two physicians shall each serve a term of six years,7
or until a successor is appointed and qualified.8
(4) Thereafter, at the expiration of the term of each member of the panel,9
the governor shall appoint a successor and such successor shall serve for a term10
of six years, or until his successor is appointed and qualified.11
D. Any member of the panel who is absent for three consecutive meetings12
without the consent of a majority of the panel at each such meeting may be13
removed by the governor at the request of the panel. Such request shall be in14
writing, signed by the chairman, and approved by the panel. Upon the death,15
resignation, or removal of any member, the secretary of the department shall16
fill the vacancy by selection, subject to Senate confirmation, for the unexpired17
portion of the term.18
E. Members of the panel shall not be entitled to per diem or any other19
compensation for their service but shall be entitled to reimbursement of any20
necessary and reasonable expense incurred in the performance of their duties21
on the panel, including travel expenses.22
F. Meetings of the panel shall be held at the call of the chairman or on23
petition of at least three members of the panel.24
G. At the first meeting of the panel each calendar year, the panelists shall25
select one of the panel members to serve as chairman and one of the panel26
members to serve as vice chairman, and each such officer shall serve for a term27
of one year. The chairman shall preside at meetings of the panel, and in his28
absence, the vice chairman shall preside.29 SB NO. 239
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H. The department shall provide administrative assistance to and serve1
as the staff for the panel.2
I. The governor shall appoint the initial members of the panel no later3
than October 1, 2012, and the panel shall convene its first meeting no later than4
November 1, 2012.5
J. (1) To the extent feasible, the panel shall identify and make a thorough6
examination of all medical treatments and surgical procedures in which7
physicians and other health care providers may be involved in order to8
determine which of those treatments and procedures do and do not require9
disclosure of the risks and hazards to the patient or person authorized to10
consent for the patient. Initially, the panel shall examine all existing medical11
disclosure lists and update and repromulgate those lists under the authority12
vested in this Section. The dentist member of the panel shall only participate13
in the panel's deliberation, determination, and preparation of lists of dental14
treatments and procedures that do and do not require disclosure.15
(2) The panel shall prepare separate lists of those medical treatments and16
surgical procedures that do and do not require disclosure. For those treatments17
and procedures that do require disclosure, the panel shall establish the degree18
of disclosure required, and the form in which the disclosure shall be made.19
(3) Lists prepared under this Section, together with the written20
explanations of the degree and form of disclosure, shall be promulgated21
according to the Administrative Procedure Act. The form of the disclosure and22
manner in which such disclosure shall be made shall be subject to legislative23
oversight by the House and Senate health and welfare committees.24
K. The lists compiled and published and rules promulgated relative to25
the form and manner of disclosure according to the provisions of this Section26
and evidence of such disclosures or failure to disclose by a physician or other27
health care provider as provided in this Section shall be admissible in a health28
care liability suit or medical malpractice claim involving medical care rendered29 SB NO. 239
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or a surgical procedure performed.1
L. At least annually or at such other time period as the panel may2
determine, the panel shall identify and examine any new medical treatments3
and surgical procedures that have been developed since its last determinations,4
assign them to the proper list, establish the degree of disclosure required, and5
the form in which the disclosure shall be made. The panel shall review and6
examine such treatments and procedures for the purpose of revising lists7
previously published. These determinations shall be published in the same8
manner as described in Paragraph (J)(3) of this Section.9
M. Before a patient or a person authorized to consent for a patient gives10
consent to any medical or surgical procedure that appears on the panel's list11
requiring disclosure, the physician or other health care provider shall disclose12
to the patient or a person authorized to consent for the patient the risks and13
hazards involved in that kind of care or procedure. A physician or other health14
care provider may choose to utilize the lists prepared by the panel and shall be15
considered to have complied with the requirements of this Subsection if16
disclosure is made as provided in Subsection N of this Section.17
N. Consent to medical care that appears on the panel's list requiring18
disclosure shall be considered effective under this Subsection if it is given in19
writing; signed by the patient or a person authorized to give the consent and by20
a competent witness; and in such terms and language that a layman would be21
expected to understand if the written consent specifically requires the risks and22
hazards that are involved in the medical care or surgical procedure in the form23
and to the degree required by the panel under this Section.24
O. (1) In a suit against a physician or other health care provider25
involving a health care liability or medical malpractice claim which is based on26
the negligent failure of the physician or other health care provider to disclose27
or adequately to disclose the risks and hazards involved in the medical care or28
surgical procedure rendered by the physician or other health care provider:29 SB NO. 239
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(a) Both the disclosure made as provided in Subsection M of this Section1
and the failure to disclose based on inclusion of any medical care or surgical2
procedure on the panel's list for which disclosure is not required shall be3
admissible in evidence and shall create a rebuttable presumption that the4
requirements of Subsections M and N of this Section have been complied with,5
and this presumption shall be included in the charge to the jury.6
(b) The failure to disclose the risks and hazards involved in any medical7
care or surgical procedure required to be disclosed under Subsections M and8
N of this Section shall be admissible in evidence and shall create a rebuttable9
presumption of a negligent failure to conform to the duty of disclosure set forth10
in Subsections M and N of this Section. This presumption shall be included in11
the charge to the jury, but failure to disclose may be found not to be negligent,12
if there was an emergency as defined in R.S. 40:2113.6(C);or, if for some other13
reason, it was not medically feasible to make a disclosure of the kind that would14
otherwise have been negligence.15
(2) If medical care is rendered or a surgical procedure performed with16
respect to which the panel has not made a determination regarding a duty of17
disclosure, the physician or other health care provider is under the general duty18
to disclose otherwise imposed by R.S. 40:1299.39.5.19
P. In order to be covered by the provisions of this Section, the physician20
or other health care provider who will actually perform the contemplated21
medical or surgical procedure shall:22
(1) Disclose the risks and hazards in the form and to the degree required23
by the panel.24
(2) Disclose additional risks, if any, particular to a patient because of a25
complicating medical condition, either told to the physician or other health care26
provider by the patient or his representative in a medical history of the patient27
or reasonably discoverable by such physician or other health care provider.28
(3) Disclose reasonable therapeutic alternatives and risks associated with29 SB NO. 239
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such alternatives.1
(4) Relate that he is obtaining a consent to medical treatment pursuant2
to the lists formulated by the Louisiana Medical Disclosure Panel.3
(5) Provide an opportunity to ask any questions about the contemplated4
medical or surgical procedure, risks, or alternatives and acknowledge in writing5
that he answered such questions, to the patient or other person authorized to6
give consent to medical treatment, receipt of which shall be acknowledged in7
writing.8
Q. The department shall maintain a searchable database of all current9
medical disclosure lists that is available to the public through the department's10
website.11
R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:1112
et seq., or any other law to the contrary, if any member of the panel is physically13
present at a meeting, any number of the other members of the panel may attend14
the meeting by use of telephone conference call, videoconferencing, or other15
similar telecommunication methods for purposes of establishing a quorum or16
voting or for any other meeting purpose allowing a panel member to fully17
participate in any panel meeting. The provisions of this Subsection shall apply18
without regard to the subject matter discussed or considered by the panel at the19
meeting. A meeting held by telephone conference call, videoconferencing, or20
other similar telecommunication method:21
(1) Shall be subject to the notice requirements of R.S. 42:11 et seq.22
(2) Shall not be held unless the notice of the meeting specifies the location23
of the meeting at which a member of the panel will be physically present.24
(3) Shall be open to the public and audible to the public at the location25
specified in the notice.26
(4) Shall provide two-way audio communication between all panel27
members attending the meeting during the entire meeting, and if the two-way28
audio communication link with any member attending the meeting is disrupted29 SB NO. 239
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at any time, the meeting may not continue until the two-way audio1
communication link is reestablished.2
S. The Department of Health and Hospitals, its agents or employees, or3
any person serving as a member of the panel shall not be liable to any person,4
firm or entity, public or private, for any act or omission to act arising out of a5
health care provider attempting to obtain or obtaining informed consent6
pursuant to the provisions of this Section.7
§1299.39.7. Exception to obtaining informed consent; human immunodeficiency8
virus or other infectious agents9
A. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law10
to the contrary, whenever it is determined by the hospital infection control11
committee or equivalent body that an agent or employee of a hospital, or a12
physician having privileges at the hospital, has been exposed to the blood or13
bodily fluids of a patient, in such a manner as to create any risk that the agent,14
employee, or physician may become infected with the human immunodeficiency15
virus or other infectious agent if the patient is infected with the human16
immunodeficiency virus or other infectious agent, in accordance with the17
infectious disease exposure guidelines of the Centers for Disease Control or the18
infectious disease exposure standards of the health care facility where the19
exposure occurred, then the hospital infection control committee may, without20
the consent of the patient, conduct such tests on blood previously drawn or21
bodily fluids previously collected as are necessary to determine whether the22
patient is, in fact, infected with the virus or other agent believed to cause23
acquired immune deficiency syndrome or other infectious disease. If no24
previously drawn blood or collected bodily fluids are available or are suitable,25
the hospital may order, without the consent of the patient, that blood, bodily26
fluids, or both be drawn and collected from the patient to conduct the necessary27
tests.28
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law29 SB NO. 239
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to the contrary, whenever it is determined by the infectious disease control1
officer of any law enforcement, fire service, or emergency medical service2
agency or organization that an agent or employee of the agency or organization3
has been exposed to the blood or bodily fluids of a patient while rendering4
emergency medical services, transporting, or treating an ill or injured patient5
in such a manner as to create any risk that the agent or employee may become6
infected with the human immunodeficiency virus or other infectious agent if the7
patient is infected with the human immunodeficiency virus or other infectious8
agent, in accordance with the infectious disease exposure guidelines of the9
Centers for Disease Control or the infectious disease exposure standards of the10
agency or organization, then the infectious disease control officer of the agency11
or organization may present the facts to the infection control committee of the12
hospital or other health care facility to which the patient has been transported.13
If the hospital infection control committee agrees that there has been a potential14
exposure to the agency or organization personnel, then the hospital infection15
control committee may, while the patient is in such hospital and without the16
consent of the patient, conduct such tests as are provided for in this Section.17
C. The results of the test shall not become a part of the patient's medical18
record and shall be confidential, except that the hospital may inform the19
exposed employee, agent, or physician, or the infectious disease control officer20
of the law enforcement, fire service, or emergency medical service agency of the21
results of the test.22
D. In the event that the test is performed, and the results of the test are23
positive, the hospital shall inform the patient of the results and shall provide24
such follow-up testing and counseling as may be required according to the25
accepted standard of medical care.26
E. The patient shall not be charged for any tests performed under this27
Section.28
F. Nothing herein shall be construed to require the hospital to perform29 SB NO. 239
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words in boldface type and underscored are additions.
the test described herein.1
* * *2
§1299.58. Consent to surgical or medical treatment for developmentally disabled3
persons and residents of state-operated nursing homes4
* * *5
C. Consent given pursuant to this Section shall be in writing and shall comply6
with the provisions of R.S. 40:1299.40(A) 40:1299.39.5(A). A copy of the signed7
written consent form and of the physician's written recommendation shall be placed8
in the resident's permanent record.9
* * *10
§1299.131. Consent to dental treatment11
A. As used in this Part:12
* * *13
(3) Notwithstanding the provisions of this Part, a dentist who performs oral14
or maxillofacial surgery in a hospital shall be subject to the provisions of R.S.15
40:1299.40 40:1299.35.5(A).16
* * *17
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not18
affected19
The legislature recognizes that confidentiality protection for information20
related to human immunodeficiency virus (HIV) infection and acquired21
immunodeficiency syndrome (AIDS) is an essential public health measure. In order22
to retain the full trust and confidence of persons at risk, the state has an interest both23
in assuring that HIV test results are not improperly disclosed and in having clear and24
certain rules for the disclosure of such information. By providing additional25
protection for the confidentiality of HIV test results, the legislature intends to26
encourage the expansion of voluntary confidential testing for HIV so that individuals27
may come forward, learn their health status, make decisions regarding the28
appropriate treatment, and change behaviors that put them and others at risk of29 SB NO. 239
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words in boldface type and underscored are additions.
infection. The legislature also recognizes that confidentiality protections can limit1
the risk of discrimination and the harm to an individual's interest in privacy that2
unauthorized disclosure of HIV test results can cause. It is not the intent of the3
legislature to create any new right, right of action, or cause of action or eliminate any4
right, right of action, or cause of action existing under current law. It is further not5
the intent of the legislature that this Chapter repeal, amend, or in any way affect the6
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician7
or employee of a hospital who may become infected with the human8
immunodeficiency virus to test the blood of a patient without the patient's consent.9
It is the intent of the legislature that in the case of a person applying for or already10
insured under an insurance policy, who will be or has been the subject of a test to11
determine infection for human immunodeficiency virus (HIV), all facets of insurers'12
practices in connection with HIV related testing and HIV test results and all facets13
of other entities' and individuals' interactions with insurers relating to HIV related14
testing or HIV test results shall be governed exclusively by Title 22 of the Revised15
Statutes of 1950 and any regulations promulgated pursuant thereto by the16
commissioner of the Department of Insurance who shall have the authority to17
promulgate such regulations.18
Section 3. R.S. 40:1299.40 is hereby repealed.19
Section 4. All existing medical disclosure lists duly promulgated by either a prior20
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and21
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly22
created Louisiana Medical Disclosure Panel until such time as those lists may be updated23
and repromulgated pursuant to the provisions of this Act.24
Section 5. This Act shall become effective upon signature by the governor or, if not25
signed by the governor, upon expiration of the time for bills to become law without signature26
of the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If27
vetoed by the Governor and subsequently approved by the Legislature, this Act shall become28
effective on the day following such approval.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.
The original instrument and the following digest, which constitute no part of
the legislative instrument, were prepared by Christopher D. Adams.
DIGEST
Murray (SB 239)
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.
Proposed law provides for the following membership of the Louisiana Medical Disclosure
Panel:
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 Louisiana Society of Oral and Maxillofacial Surgeons. The
other member shall be selected from a list of nominees submitted to the governor by
the Louisiana 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 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.
One of the six physicians shall be hospital employed.
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
Louisiana.
5. One member licensed to practice podiatry in this state who shall be selected from a
list of nominees submitted to the governor by the Louisiana Podiatric Medical
Association.
6. One member licensed to practice optometry in this state who shall be selected from
a list of nominees submitted to the governor by the Optometry Association of
Louisiana. SB NO. 239
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words in boldface type and underscored are additions.
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, the chiropractic
physician, the podiatrist, the optometrist, 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 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
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 SB NO. 239
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words in boldface type and underscored are additions.
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.
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 retains present law.
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 provides an exception the open meetings laws whereby if any member of the
panel is physically present at a meeting, any number of the other members of the panel may
attend the meeting by use of telephone conference call, videoconferencing, or other similar
telecommunication methods for purposes of establishing a quorum or voting or for any other
meeting purpose allowing a panel member to fully participate in any panel meeting. The
proposed law shall apply without regard to the subject matter discussed or considered by the
panel at the meeting. A meeting held by telephone conference call, videoconferencing, or
other similar telecommunication method:
1. Shall be subject to the notice requirements of present law.
2. Shall not be held unless the notice of the meeting specifies the location of the
meeting at which a member of the panel will be physically present.
3. Shall be open to the public and audible to the public at the location specified in the
notice.
4. Shall provide two-way audio communication between all panel members attending
the meeting during the entire meeting, and if the two way audio communication link
with any member attending the meeting is disrupted at any time, the meeting may not
continue until the two-way audio communication link is reestablished.
Proposed law provides the Department of Health and Hospitals, its agents or employees, or
any person serving as a member of the panel shall not be liable to any person, firm or entity,
public or private, for any act or omission to act arising out of a health care provider
attempting to obtain or obtaining informed consent pursuant to the provisions of the
proposed law. SB NO. 239
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words in boldface type and underscored are additions.
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.
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); and repeals R.S. 40:1299.40)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Health and Welfare to
the original bill
1. Adds a second dentist, a general chiropractic physician, a podiatrist, and an
optometrist to the panel.
2. Provides an exception to the open meetings law.
3. Provides a limitation of liability to DHH.