APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 757-587, DIVISION
"C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA SAPPINGTON, WIFE OF
AND DANIEL SAPPINGTON Eric A. Bopp Walter R. Woodruff, Jr.
Tyler S. Loga
COUNSEL FOR DEFENDANT/APPELLEE, SOUTHERN PAIN AND ANESTHESIA
CONSULTANTS, L.L.C. AND PAUL J. HUBBELL, III, M.D. Bruce A.
Cranner Molly L. Manieri
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
medical malpractice action brought by Brenda and Daniel
Sappington against a pain management physician who performed
a diagnostic nerve block injection procedure on Mrs.
Sappington's cervical spine, plaintiffs appeal a judgment
dismissing their damage claims against the physician, Dr.
Paul J. Hubbell, III, and his employer, Southern Pain and
Anesthesia Consultants, LLC, with prejudice after a jury
alleged that Dr. Hubbell punctured Mrs. Sappington's
spinal cord with a needle and injected anesthetic medication
into it while performing medial branch block injections,
causing her to suffer a cerebrospinal fluid leak that
required surgical repair by another doctor, as well as other
injuries to her spinal cord. Plaintiffs also alleged that Dr.
Hubbell modified the procedure without Mrs. Sappington's
consent by performing injections at a different level of her
spine than the levels specified in the consent form she
signed before undergoing the elective procedure.
jury heard extensive and conflicting evidence on these issues
and resolved the conflicts in defendants' favor. The
assignments of error on appeal relate solely to the issue of
informed consent and are governed by the manifest error
standard of review. Finding no clear error in the jury's
verdict, we affirm.
BACKGROUND AND ISSUES PRSENTED
Sappington was referred to Dr. Hubbell, a pain management
specialist, in November 2012 by her orthopedic surgeon, Dr.
James Butler, for medial branch block injections to assist in
diagnosing the cause of her lingering neck pain following
cervical disc removal and fusion surgery by another doctor.
Dr. Butler suspected that her pain was being caused by
movement of the facet joints running along the back of her
spine at the fusion site because the fusion was still healing
and was not stable. The purpose of the medial branch blocks
was to find out whether the injection of a local anesthetic
into or near the nerves crossing the facet joints would
relieve her pain temporarily. If it did, this would indicate
that she was a good candidate for a longer-lasting pain
management procedure to be done at a later date.
Sappington signed a consent form authorizing Dr. Hubbell to
perform medial branch block injections on both sides of her
spine at levels C3-4, C4-5, C5-6 and C6-7, the levels
involved in the fusion surgery and specified in Dr.
Butler's referral order. Instead, based on information
Dr. Hubbell learned about Mrs. Sappington's physical
condition during the procedure, he injected both sides of her
spine at levels C2-3 (just above the top of the fusion site)
and C3-4. He did not inject any levels below C3-4.
Sappington was sedated during the procedure and did not
specifically consent to having injections at the C2-3 level.
There was conflicting expert testimony as to whether certain
standard language contained in the consent form she signed
for injections at levels C3-4 through C6-7 authorized Dr.
Hubbell to inject the C2-3 level without consulting with her.
Sappington awoke from the procedure with increased neck pain,
numbness in her right arm, hand and leg, and a severe,
intractable headache, which was later diagnosed as a spinal
headache. She ultimately had surgery to repair a
cerebrospinal fluid leak at level C2-3 of her spine, the
level Dr. Hubbell added to the procedure he performed. After
the leak was repaired, her headaches resolved, but she
continued to have neck pain and numbness on her right side.
do not dispute that Mrs. Sappington was informed of the
material risks of injections at levels C3-4 through C6-7 of
her spine. Those risks included nerve injury, numbness, pain,
cerebrospinal fluid leak, and spinal headache, all of which
she experienced after the procedure. She had experienced
some, but not all, of those issues in the past, as documented
in her medical records.
material risks of injections at the level added by Dr.
Hubbell were the same as the material risks of injections at
the levels listed in the consent form, according to expert
witnesses on both sides of the case. Plaintiffs assert on
appeal that the risks at the C2-3 level were different for
Mrs. Sappington because she did not have any fusion hardware
there. However, they did not present any evidence at trial to
support that assertion. At trial, plaintiffs claimed that
Mrs. Sappington should have been given the opportunity to
discuss Dr. Hubbell's proposed modification of the
injection levels specified in Dr. Butler's referral order
with Dr. Butler before deciding whether to consent to the
Hubbell and other expert witnesses testified that there is a
risk of injury with each injection and that Mrs.
Sappington's overall risk was reduced by Dr.
Hubbell's modification of the injection levels because he
injected her spine only six times rather than ten times, as
trial, defendants filed a motion for partial summary judgment
on the issue of informed consent. The trial court granted the
motion as to the injections at level C3-4, which was listed
in the consent form, and denied it as to the injections at
level C2-3, which was not listed in the consent form.
jury heard lengthy and conflicting testimony on the
allegations of lack of informed consent to the injections at
the C2-3 level, and on other issues that are not before us on
appeal, including the manner in which Dr. Hubbell performed
the injection procedure. After a six-day trial, the jury
found that plaintiffs did not prove the standard of care by a
preponderance of the evidence and did not prove that
defendants failed to obtain Mrs. Sappington's informed
consent to the injections at level C2-3 of her spine.
appeal, plaintiffs contend there was no reasonable basis for
the jury's determination that they did not establish the
standard of care for a pain management physician with respect
to obtaining informed consent. They claim the expert witnesses
on both sides agreed that the standard of care requires the
doctor to discuss his intended medical plan of action with a
patient before undertaking an invasive procedure,
particularly when his plan differs from the procedure ordered
by the referring doctor and consented to by the patient.
also assert that the jury was clearly wrong in finding that
they did not prove a lack of informed consent to the
injections at level C2-3.
standard of care in a medical malpractice case is determined
from the facts and circumstances of the case, including the
evaluation of expert testimony. Fischer v. Megison,
07-1023 (La.App. 5 Cir. 5/27/08), 986 So.2d 95, 101.
question of whether informed consent was or was not given is
also a question of fact to be resolved by the factfinder, and
the manifest error standard of review applies to such a
finding on appellate review. Snider v. Louisiana Medical
Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So.3d 922,
the medical experts express opposing opinions on a factual
issue such as what the standard of care is in a particular
case or whether it was met, a reviewing court must give great
deference to the trier of fact's evaluation of the
conflicting expert opinions and assessment of witness
credibility. Fischer, 986 So.2d at 101;
Snider, 130 So.3d at 938-939. An appellate court may
not re-weigh the evidence or substitute its own factual
findings for those of the trial court even though it may have
decided the case differently. Fischer, 986 So.2d at
101; Martin v. East Jefferson General Hosp., 582
So.2d 1272, 1277 (La. 1991).
there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly wrong.
Martin, 582 So.2d at 1277; Fischer, 986
So.2d at 102. An appellate court may not reverse a
factfinder's factual determination unless it finds, after
reviewing the record in its entirety, that a reasonable
factual basis does not exist for the factual determination,
and the record establishes that the factual determination is
clearly wrong or manifestly erroneous. Snider, 130
So.3d at 938; Fischer, 986 So.2d at 102. The issue
to be resolved by the reviewing court is not whether the
trier of fact was right or wrong, but whether its conclusion
was reasonable. Snider, 130 So.3d at 938.
medical malpractice action against a specialist such as Dr.
Hubbell, the plaintiff has the burden of proving the standard
of care ordinarily practiced by physicians in that specialty,
the defendant's breach of the standard of care, and a
causal connection between the breach and the plaintiff's
claimed injuries. La. R.S. 9:2794(A); Fischer, 986
So.2d at 101.
plaintiff who alleges lack of informed consent based on a
physician's failure to disclose the material risks of a
medical treatment or procedure must prove the existence of a
material risk that should have been disclosed, the
physician's failure to inform the patient of that risk,
the realization of that risk, and a causal connection between
the failure to inform the patient of the risk and the
realization of the risk. Suarez v. Mando, 10-853
(La.App. 5 Cir. 3/29/10), 62 So.3d 131, 135, writ
denied, 11-0885 (La. 6/17/11), 63 So.3d 1036. A risk is
considered material if it could have influenced a reasonable
person making a decision to give or withhold consent. Former
La. R.S. 40:1299.39.5(D) (in effect at the time of Mrs.
Sappington's procedure in November 2012); now La. R.S.
40:1157.1(D); Hondroulis v. Schuhmacher, 553 So.2d
398, 412 (La. 1989) (on rehearing).
of the likelihood that a patient who suffers adverse results
after a medical treatment or procedure will believe, in
hindsight, that those results were caused by inadequate
disclosure of the risks, courts have adopted an objective
standard of causation: whether a reasonable patient in the
plaintiffs position would have consented to the treatment or
procedure had the material information and risks been
disclosed. Hondroulis, 553 So.2d at 412;
Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701
So.2d 447, 454. If a reasonable person would have consented,
the failure to disclose, however wrongful, is legally
inconsequential. Lugenbuhl, 701 So.2d at 454. A
patient has the absolute right, for whatever reason, to
prevent unauthorized intrusions and treatments, but he or she
can only recover damages for those intrusions in which
consent would have been reasonably withheld if the patient
had been adequately informed. Id.
case, it is undisputed that Mrs. Sappington was informed of
the material risks of injections at levels C3-4 through C6-7
of her spine-but not at level C2-3-before she consented to
the procedure; that the material risks at level C2-3 were the
same as the risks at the levels to which she ...