## Facts

- A patient sued a physician for medical malpractice, alleging the physician failed to perform proper diagnostic tests and timely diagnose cancer.
- Before the patient died, his testimony was preserved by perpetuation deposition; his survivors continued the litigation after his death.
- Plaintiffs planned to use the deposition to show the physician failed to order or perform certain x-rays required by the standard of care.
- The physician sought to testify that he recommended the x-rays but the patient refused.
- Plaintiffs moved in limine to exclude the physician’s account of the refusal as hearsay and unfairly prejudicial.
- The trial court granted the motion and excluded the testimony.
- The court of appeal reversed and allowed the testimony.
- The state supreme court initially reinstated the exclusion, then granted rehearing and reconsidered.

## Issues

1. Whether the physician’s testimony that the patient refused recommended x-rays was inadmissible hearsay or admissible non-hearsay under the Louisiana Code of Evidence.
2. Whether the testimony, even if admissible, should be excluded because its probative value was substantially outweighed by unfair prejudice.
3. Whether a settlement for less than policy limits triggered liability consequences under the Louisiana Medical Malpractice Act involving the Patient’s Compensation Fund.

## Decision

- On rehearing, the Louisiana Supreme Court reinstated the court of appeal’s judgment admitting the physician’s testimony.
- The court held the testimony regarding the patient’s refusal was not hearsay because it was offered for the fact the statement was made and its legal consequences, not for its truth.
- The court also held the statement was admissible as an opposing party’s statement when offered against the decedent’s successors in an action for damages arising from the decedent’s death.
- The court rejected exclusion under the unfair-prejudice rule, finding the evidence highly relevant to standard of care and causation and not unfairly prejudicial.
- The court stated that a settlement for less than the insurer’s policy limits did not trigger the statutory mechanism involving the Patient’s Compensation Fund.

## Legal Principles

- A statement is not hearsay if offered to show it was made and to establish its legal effect or consequences, rather than to prove the truth of what it asserts.
- A decedent’s statement may be treated as an opposing party’s statement when offered against successors in an action for damages arising from the declarant’s death.
- Attacks on reliability (including lack of corroboration) typically affect weight for the factfinder, not admissibility.
- Relevant evidence should not be excluded as unfairly prejudicial unless the danger of unfair prejudice substantially outweighs probative value.
- Under the Louisiana Medical Malpractice Act, a settlement for less than policy limits does not trigger the statutory excess-coverage mechanism involving the Patient’s Compensation Fund.

## Conclusion

The court allowed the physician to present testimony that the patient refused recommended x-rays, holding the statement was admissible non-hearsay (and alternatively an opposing party statement) and that its probative value on standard of care and causation was not substantially outweighed by unfair prejudice.


Bordelon v. Henderson, 604 So. 2d 950 (La. 1992)