The opinion
RONALD J. FRENCH, M.D. * NO. 2023-C-0630
AND FLORA FRENCH
*
VERSUS COURT OF APPEAL
*
QUALITY NIGHTHAWK FOURTH CIRCUIT
TELERADIOLOGY GROUP, *
INC. STATE OF LOUISIANA
*******
APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-01751, DIVISION “D”
Honorable Inemesit O’Boyle, Judge
******
Judge Tiffany Gautier Chase
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(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany
Gautier Chase)
Jeff Landry
Attorney General
Phyllis E. Glazer
Assistant Attorney General, Appellate Counsel
Gina M. Chiasson
Assistant Attorney General, Trial Counsel
Louisiana Department of Justice
Litigation Division
1885 N. Third Street, 3rd Floor
Baton Rouge, LA 70802
COUNSEL FOR RELATOR
T. Carey Wicker, III
Michael S. Sepcich
Vincent E. Odom
Thomas C. Walker, IV
Davida F. Packer
Capitelli and Wicker, Attorneys at Law
1100 Poydras Street, Suite 2950
New Orleans, LA 70163
COUNSEL FOR RESPONDENT
WRIT GRANTED; JUDGMENT REVERSED
OCTOBER 26, 2023
TGC
RML
PAB
Relators, State of Louisiana, through the Board of Supervisors of Louisiana
State University and Agricultural and Mechanical College, on behalf of LSU
Health Sciences Center and Dr. Guy Orangio, M.D. (hereinafter collectively “the
State”), seek review of the trial court’s August 30, 2023 judgment granting
Respondents’ (hereinafter collectively “Dr. French”) motion in limine.1 After
consideration of the record before this Court, and the applicable law, we grant the
writ and reverse the judgment of the trial court granting Dr. French’s motion in
limine.
Relevant Facts and Procedural History
On January 8, 2015, Dr. Ronald J. French, underwent a laparoscopic partial
colectomy performed by Dr. Orangio. It is undisputed that Dr. French executed an
informed consent form prior to the procedure. After the procedure, he suffered a
ureteral injury and anastomotic leak. On February 19, 2016, Dr. French filed a
medical malpractice petition for damages alleging that the radiologic study was
negligently misread, resulting in his injuries. Dr. French subsequently filed a
supplemental and amending petition for damages adding the State as defendants
and alleging that Dr. Orangio negligently performed the surgery which resulted in
1 Respondents are Dr. Ronald J. French and Flora French. We will refer to Dr. French, by his
name, in his individual capacity and refer to Respondents collectively as “Dr. French.”
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the complications. Specifically, Dr. French maintained that the State was negligent
in failing to appropriately assess him for an intra-operative injury and in failing to
recognize clinically significant information that should have spurred additional
treatment and timely surgical intervention.
Dr. French filed a motion in limine, on June 30, 2023, seeking to prohibit
reference to or introduction of the informed consent form. Dr. French argued that
reference to the consent form was irrelevant and prejudicial, potentially causing
confusion to the jury, because he was not making a lack of informed consent claim.
Conversely, the State maintained that the consent form demonstrates that Dr.
French was aware that the injuries he sustained were known risks of the partial
colectomy procedure. By judgment dated August 30, 2023, the trial court granted
the motion in limine and excluded evidence, “directly or indirectly,” regarding Dr.
French being informed of treatment risks and/or consenting to the procedure. At
the hearing on the matter, the trial court determined that the prejudicial effect of
evidence regarding informed consent outweighed its probative value. This writ
followed in which the State seeks review of the trial court’s interlocutory ruling.
Discussion
The sole issue before this Court is whether the trial court erred in granting
Dr. French’s motion in limine. Appellate Court’s review a trial court’s judgment
regarding a motion in limine under an abuse of discretion standard of review. River
Rental Realty LLC, Deep S. Leasing, LLC, 2017-0982, p. 8 (La.App. 4 Cir.
6/20/18), 250 So.3d 372, 377. “An abuse of discretion generally results from a
conclusion reached capriciously or in an arbitrary manner.” Boudreaux v. Bollinger
Shipyard, 2015-1345, p. 16 (La.App. 4 Cir. 6/22/16), 197 So.3d 761, 771 (citation
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omitted). The definition of “arbitrary or capricious” is taking the action in the
absence of a rational basis. Id.
The State asserts that the trial court erred in excluding all evidence, either
“directly or indirectly,” regarding Dr. French being informed of treatment risks
and/or consenting to the procedure. It maintains that this ruling prohibits the State
from introducing evidence relating to Dr. French’s consent to the procedure and his
knowledge of any known risks. Conversely, Dr. French maintains that evidence of
consent is irrelevant because he is not asserting a claim based on informed consent;
rather, his claim is premised upon a breach of standard of care.
In the case sub judice, Dr. French alleges that the State breached its standard
of care by failing to evaluate and treat symptoms of known complications of a
partial colectomy. The trial court ultimately excluded the informed consent
evidence pursuant to La. C.E. art. 403, finding that the probative value of the
evidence is outweighed by its prejudicial effect. La. C.E. art. 403 provides that,
“[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or waste of time.” We
find the trial court made a conclusory finding without properly conducting a La.
C.E. art. 403 balancing test. “[T]he [trial] court must be mindful of the balancing
of interests set forth in [La.] C.E. art. 403… .” Simpson v. U V Ins. Risk Retention
Grp., Inc., 2019-0625, p. 12 (La.App. 3 Cir. 9/30/20), 304 So.3d 1002. 1012. This
Court must balance the State’s right to present a defense with Dr. French’s right to
prove negligent conduct on the part of the State.
We acknowledge that Dr. French’s claim is not based upon a lack of
informed consent. However, to create a blanket prohibition on introduction of all
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evidence regarding consent and informed risks is highly prejudicial. The State’s
defense is predicated on Dr. French being informed of the risks associated with the
procedure and that a ureteral injury and anastomotic leak is a known complication
of the partial colectomy procedure. The trial court can observe the context in which
the issue of informed consent is presented and determine admissibility at that phase
of the proceeding. Additionally, any obstacle regarding the issue of informed
consent can be alleviated by a properly curated jury instruction. Accordingly, we
find that the probative value of evidence that Dr. French consented to the
procedure, and was therefore informed of the risk, outweighs any potential
prejudice. Thus, there exists no rational basis for the exclusion of the evidence and
its exclusion was an abuse of discretion by the trial court.
WRIT GRANTED; JUDGMENT REVERSED
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