§1157.2. Louisiana Medical Disclosure Panel; creation; membership; powers; duties

A. As used in this Section, the following terms shall mean:

(1) "Department" means the Louisiana Department of Health.

(2) "Panel" means the Louisiana Medical Disclosure Panel.

B.(1) The Louisiana Medical Disclosure Panel is hereby created within the department to determine which risks and hazards related to medical care and surgical procedures must be disclosed by a physician or other health care provider to a patient or person authorized to consent for a patient and to establish the general form and substance of such disclosure.

(2) The panel shall be comprised of the following members who shall be appointed by the governor and submitted to the Senate for confirmation:

(a) Two members licensed to practice dentistry. One member who specializes in oral and maxillofacial surgery 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.

(b) 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.

(c) 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 a hospital-employed physician.

(d) 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.

(e) 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.

(f) 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.

(g) One member licensed as a nurse practitioner in this state who shall be selected from a list of nominees submitted to the governor by the Louisiana Association of Nurse Practitioners.

C. The initial members of the panel shall have the following terms:

(1) The dentist who specializes in oral and maxillofacial surgery, the chiropractic physician, the podiatrist, the optometrist, the nurse practitioner, 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.

D. Any member of the panel who is absent for three consecutive meetings without the consent of a majority of the panel at each such meeting may be removed by the governor at the request of the panel present submitted in writing and signed by the chairman. Upon the death, resignation, or removal of any member, the secretary of the department shall fill the vacancy by selection, subject to confirmation by the Senate, for the unexpired portion of the term.

E. 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.

F. Meetings of the panel shall be held at the call of the chairman or on petition of at least three members of the panel.

G. At the first meeting of the panel each year after its members assume their positions, the panelists shall select one of the panel members to serve as chairman and one of the panel members to serve as vice chairman, and each such officer shall serve for a term of one year. The chairman shall preside at meetings of the panel, and in his absence, the vice chairman shall preside.

H. The department shall provide administrative assistance to and serve as the staff for the panel.

I. The governor shall appoint the initial members of the panel no later than October 1, 2012, and the panel shall convene its first meeting no later than November 1, 2012.

J.(1) To the extent feasible, 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. The panel, initially, shall examine all existing medical disclosure lists and update and repromulgate those lists under the authority vested in this Section. The dentist member of the panel shall participate only in the panel's deliberation, determination, and preparation of lists of dental treatments and procedures that do and do not require disclosure.

(2) The panel shall prepare separate lists of those medical treatments and surgical procedures that do and do not require disclosure and for those treatments and procedures that do require disclosure shall establish the degree of disclosure required and the form in which the disclosure will be made.

(3) Lists prepared pursuant to the provisions of this Section together with written explanations of the degree and form of disclosure shall be promulgated in accordance with the provisions of the Administrative Procedure Act. The form of the disclosure and manner in which such disclosure will be made shall be subject to legislative oversight by the House and Senate health and welfare committees.

K. The lists compiled and published and rules promulgated relative to the form and manner of disclosure according to the provisions of this Section and evidence of such disclosures or failure to disclose by a physician or other health care provider as provided in this Section, shall be admissible in a health care liability suit or medical malpractice claim involving medical care rendered or a surgical procedure performed.

L. At least annually, or at such other period as the panel may determine, the panel shall identify and examine any new medical treatments and surgical procedures that have been developed since its last determinations, shall assign them to the proper list, and shall establish the degree of disclosure required and the form in which the disclosure shall be made. The panel shall also review and examine such treatments and procedures for the purpose of revising lists previously published. These determinations shall be published in the same manner as described in Paragraph (J)(3) of this Section.

M. Before a patient or a person authorized to consent for a patient gives consent to any medical or surgical procedure that appears on the panel's list requiring disclosure, the physician or other health care provider shall disclose to the patient, or person authorized to consent for the patient, the risks and hazards involved in that kind of care or procedure. A physician or other health care provider may choose to utilize the lists prepared by the panel and shall be considered to have complied with the requirements of this Subsection if disclosure is made as provided in Subsection N of this Section.

N. Consent to medical care that appears on the panel's list requiring disclosure shall be considered effective pursuant to the provisions of this Section, if it is given in writing, signed by the patient or a person authorized to give the consent and by a competent witness, and if the written consent specifically states, in such terms and language that a layman would be expected to understand, the risks and hazards that are involved in the medical care or surgical procedure in the form and to the degree required by the panel pursuant to the provisions of this Section.

O.(1) All the following requirements shall apply in a suit against a physician or other health care provider involving a health care liability or medical malpractice claim that 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:

(a) Both the disclosure made as provided in Subsection M of this Section 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 Subsections M and N of this Section have been complied with, and this presumption shall be included in the charge to the jury.

(b) The failure to disclose the risks and hazards involved in any medical care or surgical procedure required to be disclosed under Subsections M and N of this Section shall be admissible in evidence and shall create a rebuttable presumption of a negligent failure to conform to the duty of disclosure set forth in Subsections M and N of this Section, and this presumption shall be included in the charge to the jury. However, failure to disclose may be found not to be negligent, if there was an emergency as defined in R.S. 40:2113.6(C) or, if for some other reason, it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.

(2) If medical care is rendered or a surgical procedure performed with respect to which the panel has not made a determination regarding a duty of disclosure, the physician or other health care provider is under the general duty to disclose otherwise imposed by R.S. 40:1157.1.

P. In order to be covered by the provisions of this Section, 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.

Q. The department shall maintain a searchable database of all current medical disclosure lists and make such database available to the public on the website of the department.

R. Notwithstanding the provisions of the Open Meetings Law, R.S. 42:11 et seq., or any other law, 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 provisions of this Subsection 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 R.S. 42:11 et seq.

(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.

S. The Louisiana Department of Health, 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 arising out of a health care provider attempting to obtain or obtaining informed consent pursuant to the provisions of this Section.

Acts 2012, No. 600, §2, eff. June 7, 2012; Acts 2012, No. 759, §2, eff. June 12, 2012; Redesignated from R.S. 40:1299.39.6 by HCR 84 of 2015 R.S.