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Regular Session, 2012 ENROLLED
SENATE BILL NO. 239
BY SENATOR MURRAY
AN ACT1
To amend and reenact R.S. 36:802(introductory paragraph), and Part XXII of Chapter 5 of2
Title 40 of the Louisiana Revised Statutes of 1950, to be comprised of R.S.3
40:1299.39.5 through 1299.39.7, 1299.58(C), 1299.131(A)(3), and 1300.11, to enact4
R.S. 36:259(MM), and to repeal R.S. 40:1299.40, relative to informed consent; to5
provide for methods in which informed consent may be obtained; to create the6
Louisiana Medical Disclosure Panel within the Department of Health and Hospitals;7
to provide for definitions; to provide for membership and terms; to provide for8
powers and duties; to provide for medical disclosure lists; to provide for exceptions9
to obtaining informed consent; to provide for attendance of meetings via10
telecommunications; to provide for limitations of liability; to provide for the11
promulgation of rules and regulations; to provide for an effective date; and to12
provide for related matters.13
Be it enacted by the Legislature of Louisiana:14
Section 1. R.S. 36:802(introductory paragraph) is hereby amended and reenacted and15
R.S. 36:259(MM) is hereby enacted to read as follows:16
§259. Transfer of agencies and functions to Department of Health and Hospitals17
* * *18
MM. The Louisiana Medical Disclosure Panel (R.S. 40:1299.39.6) is19
placed within the Department of Health and Hospitals and shall exercise and20
perform its powers, duties, functions, and responsibilities as provided for21
agencies transferred in accordance with the provisions of R.S. 36:802.22
* * *23
§802. Transfer; retention of policymaking and rulemaking functions24
The agencies transferred by the provisions of R.S. 36:209(Q), 239(E),25
259(B), 259(T), 259(MM), 309(B), 359(B), 409(C), 459(B), 509(B), 610(B), 629(I),26
and 769(C) shall continue to be composed and selected as provided by law, and each27
ACT No. 759 SB NO. 239 ENROLLED
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shall continue to exercise all of the powers, duties, functions, and responsibilities1
provided or authorized for each by the constitution or laws which are in the nature2
of policymaking, rulemaking, licensing, regulation, enforcement, or adjudication and3
also shall continue to exercise all advisory powers, duties, functions, and4
responsibilities provided by law. Such powers, duties, functions, and responsibilities5
shall be exercised independently of the secretary and any assistant secretary, except6
that:7
* * *8
Section 2. Part XXII of Chapter 5 of Title 40 of the Louisiana Revised Statutes of9
1950, comprised of R.S. 40:1299.39.5 through 1299.39.7, 1299.58(C), 1299.131(A)(3), and10
1300.11 are hereby amended and reenacted to read as follows:11
PART XXII. UNIFORM CONSENT LAW12
§1299.40. §1299.39.5. Consent to medical treatment; exception; availability of lists13
to establish necessity and degree methods of obtaining consent14
A.(1) Notwithstanding any other law to the contrary, written consent to15
medical treatment means the voluntary permission of a patient, through signature,16
marking, or affirmative action through electronic means pursuant to R.S.17
40:1299.40.1, to any medical or surgical procedure or course of procedures which18
sets forth in general terms the nature and purpose of the procedure or procedures,19
together with the known risks, if any, of death, brain damage, quadriplegia,20
paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars21
associated with such procedure or procedures; acknowledges that such disclosure of22
information has been made and that all questions asked about the procedure or23
procedures have been answered in a satisfactory manner; and is evidenced by a24
signature, marking, or affirmative action through electronic means, by the patient for25
whom the procedure is to be performed, or if the patient for any reason lacks legal26
capacity to consent, by a person who has legal authority to consent on behalf of such27
patient in such circumstances. Such consent shall be presumed to be valid and28
effective, in the absence of proof that execution of the consent was induced by29
misrepresentation of material facts.30 SB NO. 239 ENROLLED
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(2) In addition to the information required to be disclosed in Paragraph (1)1
of this Subsection, where the medical treatment involves the surgical implantation2
of "Norplant" contraceptive devices, the explanation to the patient shall include the3
known and significant or other material risks, the known adverse results, and4
alternative methods of contraception.5
B. Except as provided in Subsection A of this Section, no evidence shall be6
admissible to modify or limit the authorization for performance of the procedure or7
procedures set forth in such consent.8
C. Where consent to medical treatment from a patient, or from a person9
authorized by law to consent to medical treatment for such patient, is secured other10
than in accordance with Subsection A above of this Section, the explanation to the11
patient or to the person consenting for such patient shall include the matters set forth12
in Paragraph (1) of Subsection A above of this Section, and an opportunity shall be13
afforded for asking questions concerning the procedures to be performed which shall14
be answered in a satisfactory manner. Such consent shall be valid and effective and15
is subject to proof according to the rules of evidence in ordinary cases.16
D.(1) Notwithstanding this Section or any other law to the contrary,17
whenever it is determined by the hospital infection control committee or equivalent18
body that an agent or employee of a hospital, or a physician having privileges at the19
hospital, has been exposed to the blood or bodily fluids of a patient, in such a manner20
as to create any risk that the agent, employee, or physician may become infected with21
the human immunodeficiency virus or other infectious agent if the patient is infected22
with the human immunodeficiency virus or other infectious agent, in accordance23
with the infectious disease exposure guidelines of the Centers for Disease Control24
or the infectious disease exposure standards of the health care facility where the25
exposure occurred, then the hospital infection control committee may, without the26
consent of the patient, conduct such tests on blood previously drawn or body fluids27
previously collected as are necessary to determine whether the patient is, in fact,28
infected with the virus or other agent believed to cause acquired immune deficiency29
syndrome or other infectious disease. If no previously drawn blood or collected30 SB NO. 239 ENROLLED
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bodily fluids are available or are suitable, the hospital may order, without the consent1
of the patient, that blood, bodily fluids, or both be drawn and collected from the2
patient to conduct the necessary tests.3
(2) Notwithstanding this Section or any other law to the contrary, whenever4
it is determined by the infectious disease control officer of any law enforcement, fire5
service, or emergency medical service agency or organization that an agent or6
employee of the agency or organization has been exposed to the blood or bodily7
fluids of a patient while rendering emergency medical services, transporting, or8
treating an ill or injured patient in such a manner as to create any risk that the agent9
or employee may become infected with the human immunodeficiency virus or other10
infectious agent if the patient is infected with the human immunodeficiency virus or11
other infectious agent, in accordance with the infectious disease exposure guidelines12
of the Centers for Disease Control or the infectious disease exposure standards of the13
agency or organization, then the infectious disease control officer of the agency or14
organization may present the facts to the infection control committee of the hospital15
or other health care facility to which the patient has been transported. If the hospital16
infection control committee agrees that there has been a potential exposure to the17
agency or organization personnel, then the hospital infection control committee may,18
while the patient is in such hospital and without the consent of the patient, conduct19
such tests as are provided for in R.S. 40:1299.40(D)(1).20
(3) The results of the test shall not become a part of the patient's medical21
record and shall be confidential, except that the hospital may inform the exposed22
employee, agent, or physician, or the infectious disease control officer of the law23
enforcement, fire service, or emergency medical service agency of the results of the24
test.25
(4) In the event that the test is performed, and the results of the test are26
positive, the hospital shall inform the patient of the results and shall provide such27
follow-up testing and counseling as may be required according to the accepted28
standard of medical care.29
(5) The patient shall not be charged for any tests performed under this30 SB NO. 239 ENROLLED
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Subsection.1
(6) Nothing herein shall be construed to require the hospital to perform the2
test described herein.3
E.(1) As used in this Subsection, "secretary" means the secretary of the4
Department of Health and Hospitals.5
(2)(a) D. In a suit against a physician or other health care provider involving6
a health care liability or medical malpractice claim which is based on the failure of7
the physician or other health care provider to disclose or adequately to disclose the8
risks and hazards involved in the medical care or surgical procedure rendered by the9
physician or other health care provider, the only theory on which recovery may be10
obtained is that of negligence in failing to disclose the risks or hazards that could11
have influenced a reasonable person in making a decision to give or withhold12
consent.13
(b) E. Consent to medical treatment may be evidenced according to the14
provisions of Subsections A and C of this Section or, as an alternative, a physician15
or other health care provider may choose to avail himself of the lists established by16
the secretary Louisiana Medical Disclosure Panel pursuant to the provisions of this17
Subsection R.S. 40:1299.39.6 as another method by which to evidence a patient's18
consent to medical treatment.19
(3) The secretary shall determine which risks and hazards related to medical20
care and surgical procedures must be disclosed by a physician or other health care21
provider to a patient or person authorized to consent for a patient and to establish the22
general form and substance of such disclosure.23
(4)(a) To the extent feasible, the secretary shall identify and make a thorough24
examination of all medical treatments and surgical procedures in which physicians25
and other health care providers may be involved in order to determine which of those26
treatments and procedures do and do not require disclosure of the risks and hazards27
to the patient or person authorized to consent for the patient.28
(b) The secretary shall prepare separate lists of those medical treatments and29
surgical procedures that do and do not require disclosure and for those treatments30 SB NO. 239 ENROLLED
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and procedures that do require disclosure shall establish the degree of disclosure1
required and the form in which the disclosure will be made.2
(c) Lists prepared under Subparagraph (b) of this Paragraph together with3
written explanations of the degree and form of disclosure shall be promulgated4
according to the Administrative Procedure Act. The form of the disclosure and5
manner in which such disclosure will be made shall be subject to legislative6
oversight by the House and Senate health and welfare committees. The lists7
compiled and published and rules promulgated relative to the form and manner of8
disclosure according to the provisions of this Subsection and evidence of such9
disclosures or failure to disclose by a physician or other health care provider as10
provided in Paragraphs (5) and (6) of this Subsection shall be admissible in a health11
care liability suit or medical malpractice claim involving medical care rendered or12
a surgical procedure performed on or after March 1, 1991.13
(d) At least annually, or at such other period as the secretary may determine,14
the secretary shall identify and examine any new medical treatments and surgical15
procedures that have been developed since its last determinations, shall assign them16
to the proper list, and shall establish the degree of disclosure required and the form17
in which the disclosure shall be made. The secretary shall also review and examine18
such treatments and procedures for the purpose of revising lists previously published.19
These determinations shall be published in the same manner as described in20
Subparagraph (c) of this Paragraph.21
(5) Before a patient or a person authorized to consent for a patient gives22
consent to any medical or surgical procedure that appears on the list requiring23
disclosure, the physician or other health care provider shall disclose to the patient,24
or person authorized to consent for the patient, the risks and hazards involved in that25
kind of care or procedure. A physician or other health care provider may choose to26
utilize the lists prepared by the secretary and shall be considered to have complied27
with the requirements of this Subsection if disclosure is made as provided in28
Paragraph (6) of this Subsection.29
(6) Consent to medical care that appears on the secretary's list requiring30 SB NO. 239 ENROLLED
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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
otherwise imposed by this Section.30 SB NO. 239 ENROLLED
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(c) In order to be covered by the provisions of this Subsection, the physician1
or other health care provider who will actually perform the contemplated medical or2
surgical procedure shall:3
(i) Disclose the risks and hazards in the form and to the degree required by4
the secretary;5
(ii) Disclose additional risks, if any, particular to a patient because of a6
complicating medical condition, either told to the physician or other health care7
provider by the patient or his representative in a medical history of the patient or8
reasonably discoverable by such physician or other health care provider;9
(iii) Disclose reasonable therapeutic alternatives and risks associated with10
such alternatives;11
(iv) Relate that he is obtaining a consent to medical treatment pursuant to the12
lists formulated by the secretary; and13
(v) Provide an opportunity to ask any questions about the contemplated14
medical or surgical procedure, risks, or alternatives and acknowledge in writing that15
he answered such questions, to the patient or other person authorized to give consent16
to medical treatment, receipt of which shall be acknowledged in writing.17
F. Notwithstanding the provisions of Subsection E of this Section, consent18
for dental treatment rendered by dentists not performing oral and maxillofacial19
surgery in a hospital setting shall be governed exclusively by the provisions of R.S.20
40:1299.131.21
§1299.39.6. Louisiana Medical Disclosure Panel; creation; membership;22
powers; duties23
A. As used in this Section, the following terms shall mean:24
(1) "Panel" means the Louisiana Medical Disclosure Panel.25
(2) "Department" means the Department of Health and Hospitals.26
B.(1) The Louisiana Medical Disclosure Panel is hereby created within27
the department to determine which risks and hazards related to medical care28
and surgical procedures must be disclosed by a physician or other health care29
provider to a patient or person authorized to consent for a patient and to30 SB NO. 239 ENROLLED
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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) Two members licensed to practice dentistry. One member who4
specializes in oral and maxillofacial surgery shall be selected from a list of5
nominees submitted to the governor by the Louisiana Society of Oral and6
Maxillofacial Surgeons. The other member shall be selected from a list of7
nominees submitted to the governor by the Louisiana Dental Association.8
(b) Four members licensed to practice law in this state of whom three9
shall be selected from a list of nominees submitted to the governor by the10
Louisiana Association for Justice, and one shall be selected from a list of11
nominees submitted to the governor by the Louisiana Association of Defense12
Counsel.13
(c) Six members licensed to practice medicine in this state who shall be14
selected from a list of nominees submitted to the governor by the Louisiana15
State Medical Society. One of the six physicians shall be a hospital-employed16
physician.17
(d) One member licensed to practice chiropractic in this state who shall18
be selected from a list of nominees submitted to the governor by the19
Chiropractic Association of Louisiana.20
(e) One member licensed to practice podiatry in this state who shall be21
selected from a list of nominees submitted to the governor by the Louisiana22
Podiatric Medical Association.23
(f) One member licensed to practice optometry in this state who shall be24
selected from a list of nominees submitted to the governor by the Optometry25
Association of Louisiana.26
(g) One member licensed as a nurse practitioner in this state who shall27
be selected from a list of nominees submitted to the governor by the Louisiana28
Association of Nurse Practitioners.29
C. The initial members of the panel shall have the following terms:30 SB NO. 239 ENROLLED
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(1) The dentist who specializes in oral and maxillofacial surgery, the1
chiropractic physician, the podiatrist, the optometrist, one attorney, the nurse2
practitioner, and two physicians shall each serve a term of two years, or until3
a successor is appointed 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. Upon the death,14
resignation, or removal of any member, the secretary of the department shall15
fill the vacancy by selection, subject to Senate confirmation, for the unexpired16
portion of the term.17
E. Members of the panel shall not be entitled to a per diem or any other18
compensation for their service but shall be entitled to reimbursement of any19
necessary and reasonable expense incurred in the performance of their duties20
on the panel, including travel expenses.21
F. Meetings of the panel shall be held at the call of the chairman or on22
petition of at least three members of the panel.23
G. At the first meeting of the panel each year after its members assume24
their positions, the panelists shall select one of the panel members to serve as25
chairman and one of the panel members to serve as vice chairman, and each26
such officer shall serve for a term of one year. The chairman shall preside at27
meetings of the panel, and in his absence, the vice chairman shall preside.28
H. The department shall provide administrative assistance to and serve29
as the staff for the panel.30 SB NO. 239 ENROLLED
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I. The governor shall appoint the initial members of the panel no later1
than October 1, 2012, and the panel shall convene its first meeting no later than2
November 1, 2012.3
J.(1) To the extent feasible, the panel shall identify and make a thorough4
examination of all medical treatments and surgical procedures in which5
physicians and other health care providers may be involved in order to6
determine which of those treatments and procedures do and do not require7
disclosure of the risks and hazards to the patient or person authorized to8
consent for the patient. Initially, the panel shall examine all existing medical9
disclosure lists and update and repromulgate those lists under the authority10
vested in this Section. The dentist member of the panel shall participate only11
in the panel's deliberation, determination, and preparation of lists of dental12
treatments and procedures that do and do not require disclosure.13
(2) The panel shall prepare separate lists of those medical treatments and14
surgical procedures that do and do not require disclosure. For those treatments15
and procedures that do require disclosure, the panel shall establish the degree16
of disclosure required, and the form in which the disclosure shall be made.17
(3) Lists prepared under this Section, together with the written18
explanations of the degree and form of disclosure, shall be promulgated in19
accordance with the Administrative Procedure Act. The form of the disclosure20
and manner in which such disclosure shall be made shall be subject to21
legislative oversight by the House and Senate health and welfare committees.22
K. The lists compiled and published and rules promulgated relative to23
the form and manner of disclosure according to the provisions of this Section24
and evidence of such disclosures or failure to disclose by a physician or other25
health care provider as provided in this Section shall be admissible in a health26
care liability suit or medical malpractice claim involving medical care rendered27
or a surgical procedure performed.28
L. At least annually or at such other time period as the panel may29
determine, the panel shall identify and examine any new medical treatments30 SB NO. 239 ENROLLED
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and surgical procedures that have been developed since its last determinations,1
assign them to the proper list, establish the degree of disclosure required, and2
the form in which the disclosure shall be made. The panel shall review and3
examine such treatments and procedures for the purpose of revising lists4
previously published. These determinations shall be published in the same5
manner as described in Paragraph (J)(3) of this Section.6
M. Before a patient or a person authorized to consent for a patient gives7
consent to any medical or surgical procedure that appears on the panel's list8
requiring disclosure, the physician or other health care provider shall disclose9
to the patient or a person authorized to consent for the patient the risks and10
hazards involved in that kind of care or procedure. A physician or other health11
care provider may choose to utilize the lists prepared by the panel and shall be12
considered to have complied with the requirements of this Subsection if13
disclosure is made as provided in Subsection N of this Section.14
N. Consent to medical care that appears on the panel's list requiring15
disclosure shall be considered effective under this Subsection if it is given in16
writing, signed by the patient or a person authorized to give the consent and by17
a competent witness, and written in such terms and language that a layman18
would be expected to understand, if the written consent specifically so requires,19
the risks and hazards that are involved in the medical care or surgical20
procedure in the form and to the degree required by the panel under this21
Section.22
O.(1) All the following requirements shall apply in a suit against a23
physician or other health care provider involving a health care liability or24
medical malpractice claim which is based on the negligent failure of the25
physician or other health care provider to disclose or adequately to disclose the26
risks and hazards involved in the medical care or surgical procedure rendered27
by the physician or other health care provider:28
(a) Both the disclosure made as provided in Subsection M of this Section29
and the failure to disclose based on inclusion of any medical care or surgical30 SB NO. 239 ENROLLED
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procedure on the panel's list for which disclosure is not required shall be1
admissible in evidence and shall create a rebuttable presumption that the2
requirements of Subsections M and N of this Section have been complied with,3
and this presumption shall be included in the charge to the jury.4
(b) The failure to disclose the risks and hazards involved in any medical5
care or surgical procedure required to be disclosed under Subsections M and6
N of this Section shall be admissible in evidence and shall create a rebuttable7
presumption of a negligent failure to conform to the duty of disclosure set forth8
in Subsections M and N of this Section. This presumption shall be included in9
the charge to the jury, but failure to disclose may be found not to be negligent,10
if there was an emergency as defined in R.S. 40:2113.6(C);or, if for some other11
reason, it was not medically feasible to make a disclosure of the kind that would12
otherwise have been negligence.13
(2) If medical care is rendered or a surgical procedure performed with14
respect to which the panel has not made a determination regarding a duty of15
disclosure, the physician or other health care provider is under the general duty16
to disclose otherwise imposed by R.S. 40:1299.39.5.17
P. In order to be covered by the provisions of this Section, the physician18
or other health care provider who will actually perform the contemplated19
medical or surgical procedure shall:20
(1) Disclose the risks and hazards in the form and to the degree required21
by the panel.22
(2) Disclose additional risks, if any, particular to a patient because of a23
complicating medical condition, either told to the physician or other health care24
provider by the patient or his representative in a medical history of the patient25
or reasonably discoverable by such physician or other health care provider.26
(3) Disclose reasonable therapeutic alternatives and risks associated with27
such alternatives.28
(4) Relate that he is obtaining a consent to medical treatment pursuant29
to the lists formulated by the Louisiana Medical Disclosure Panel.30 SB NO. 239 ENROLLED
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(5) Provide an opportunity to ask any questions about the contemplated1
medical or surgical procedure, risks, or alternatives and acknowledge in writing2
that he answered such questions, to the patient or other person authorized to3
give consent to medical treatment, receipt of which shall be acknowledged in4
writing.5
Q. The department shall maintain a searchable database of all current6
medical disclosure lists that is available to the public through the department's7
website.8
R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:119
et seq., or any other law to the contrary, if any member of the panel is physically10
present at a meeting, any number of the other members of the panel may attend11
the meeting by use of telephone conference call, videoconferencing, or other12
similar telecommunication methods for purposes of establishing a quorum or13
voting or for any other meeting purpose allowing a panel member to fully14
participate in any panel meeting. The provisions of this Subsection shall apply15
without regard to the subject matter discussed or considered by the panel at the16
meeting. A meeting held by telephone conference call, videoconferencing, or17
other similar telecommunication method:18
(1) Shall be subject to the notice requirements of R.S. 42:11 et seq.19
(2) Shall not be held unless the notice of the meeting specifies the location20
of the meeting at which a member of the panel will be physically present.21
(3) Shall be open to the public and audible to the public at the location22
specified in the notice.23
(4) Shall provide two-way audio communication between all panel24
members attending the meeting during the entire meeting, and if the two-way25
audio communication link with any member attending the meeting is disrupted26
at any time, the meeting may not continue until the two-way audio27
communication link is reestablished.28
S. The Department of Health and Hospitals, its agents or employees, or29
any person serving as a member of the panel shall not be liable to any person,30 SB NO. 239 ENROLLED
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firm or entity, public or private, for any act or omission arising out of a health1
care provider attempting to obtain or obtaining informed consent pursuant to2
the provisions of this Section.3
§1299.39.7. Exception to obtaining informed consent; human immunodeficiency4
virus or other infectious agents5
A. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law6
to the contrary, whenever it is determined by the hospital infection control7
committee or equivalent body that an agent or employee of a hospital, or a8
physician having privileges at the hospital, has been exposed to the blood or9
bodily fluids of a patient, in such a manner as to create any risk that the agent,10
employee, or physician may become infected with the human immunodeficiency11
virus or other infectious agent if the patient is infected with the human12
immunodeficiency virus or other infectious agent, in accordance with the13
infectious disease exposure guidelines of the Centers for Disease Control or the14
infectious disease exposure standards of the health care facility where the15
exposure occurred, then the hospital infection control committee may, without16
the consent of the patient, conduct such tests on blood previously drawn or17
bodily fluids previously collected as are necessary to determine whether the18
patient is, in fact, infected with the virus or other agent believed to cause19
acquired immune deficiency syndrome or other infectious disease. If no20
previously drawn blood or collected bodily fluids are available or are suitable,21
the hospital may order, without the consent of the patient, that blood, bodily22
fluids, or both be drawn and collected from the patient to conduct the necessary23
tests.24
B. Notwithstanding the provisions of R.S. 40:1299.39.5 or any other law25
to the contrary, whenever it is determined by the infectious disease control26
officer of any law enforcement, fire service, or emergency medical service27
agency or organization that an agent or employee of the agency or organization28
has been exposed to the blood or bodily fluids of a patient while rendering29
emergency medical services, transporting, or treating an ill or injured patient30 SB NO. 239 ENROLLED
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words in boldface type and underscored are additions.
in such a manner as to create any risk that the agent or employee may become1
infected with the human immunodeficiency virus or other infectious agent if the2
patient is infected with the human immunodeficiency virus or other infectious3
agent, in accordance with the infectious disease exposure guidelines of the4
Centers for Disease Control or the infectious disease exposure standards of the5
agency or organization, then the infectious disease control officer of the agency6
or organization may present the facts to the infection control committee of the7
hospital or other health care facility to which the patient has been transported.8
If the hospital infection control committee agrees that there has been a potential9
exposure to the agency or organization personnel, then the hospital infection10
control committee may, while the patient is in such hospital and without the11
consent of the patient, conduct such tests as are provided for in this Section.12
C. The results of the test shall not become a part of the patient's medical13
record and shall be confidential, except that the hospital may inform the14
exposed employee, agent, or physician, or the infectious disease control officer15
of the law enforcement, fire service, or emergency medical service agency of the16
results of the test.17
D. In the event that the test is performed, and the results of the test are18
positive, the hospital shall inform the patient of the results and shall provide19
such follow-up testing and counseling as may be required according to the20
accepted standard of medical care.21
E. The patient shall not be charged for any tests performed under this22
Section.23
F. Nothing in this Part shall be construed to require the hospital to24
perform the test described herein.25
* * *26
§1299.58. Consent to surgical or medical treatment for developmentally disabled27
persons and residents of state-operated nursing homes28
* * *29
C. Consent given pursuant to this Section shall be in writing and shall comply30 SB NO. 239 ENROLLED
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words in boldface type and underscored are additions.
with the provisions of R.S. 40:1299.40(A) 40:1299.39.5(A). A copy of the signed1
written consent form and of the physician's written recommendation shall be placed2
in the resident's permanent record.3
* * *4
§1299.131. Consent to dental treatment5
A. As used in this Part:6
* * *7
(3) Notwithstanding the provisions of this Part, a dentist who performs oral8
or maxillofacial surgery in a hospital shall be subject to the provisions of R.S.9
40:1299.40 40:1299.39.5(A).10
* * *11
§1300.11. Purpose; intent; insurance and R.S. 40:1299.40(D) 40:1299.39.7 not12
affected13
The legislature recognizes that confidentiality protection for information14
related to human immunodeficiency virus (HIV) infection and acquired15
immunodeficiency syndrome (AIDS) is an essential public health measure. In order16
to retain the full trust and confidence of persons at risk, the state has an interest both17
in assuring that HIV test results are not improperly disclosed and in having clear and18
certain rules for the disclosure of such information. By providing additional19
protection for the confidentiality of HIV test results, the legislature intends to20
encourage the expansion of voluntary confidential testing for HIV so that individuals21
may come forward, learn their health status, make decisions regarding the22
appropriate treatment, and change behaviors that put them and others at risk of23
infection. The legislature also recognizes that confidentiality protections can limit24
the risk of discrimination and the harm to an individual's interest in privacy that25
unauthorized disclosure of HIV test results can cause. It is not the intent of the26
legislature to create any new right, right of action, or cause of action or eliminate any27
right, right of action, or cause of action existing under current law. It is further not28
the intent of the legislature that this Chapter repeal, amend, or in any way affect the29
provisions of R.S. 40:1299.40(D) 40:1299.39.7 relative to the ability of a physician30 SB NO. 239 ENROLLED
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or employee of a hospital who may become infected with the human1
immunodeficiency virus to test the blood of a patient without the patient's consent.2
It is the intent of the legislature that in the case of a person applying for or already3
insured under an insurance policy, who will be or has been the subject of a test to4
determine infection for human immunodeficiency virus (HIV), all facets of insurers'5
practices in connection with HIV related testing and HIV test results and all facets6
of other entities' and individuals' interactions with insurers relating to HIV related7
testing or HIV test results shall be governed exclusively by Title 22 of the Louisiana8
Revised Statutes of 1950 and any regulations promulgated pursuant thereto by the9
commissioner of the Department of Insurance who shall have the authority to10
promulgate such regulations.11
Section 3. R.S. 40:1299.40 is hereby repealed.12
Section 4. All existing medical disclosure lists duly promulgated by either a prior13
Louisiana Medical Disclosure Panel or the secretary of the Department of Health and14
Hospitals shall remain effective and shall be deemed to have been promulgated by the newly15
created Louisiana Medical Disclosure Panel until such time as those lists may be updated16
and repromulgated pursuant to the provisions of this Act.17
Section 5. This Act shall become effective upon signature by the governor or, if not18
signed by the governor, upon expiration of the time for bills to become law without signature19
of the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If20
vetoed by the Governor and subsequently approved by the Legislature, this Act shall become21
effective on the day following such approval.22
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: