May 2013 WAJ President's Column
Changing Wisconsin's Informed Consent
Law is Just Bad Medicine
By Jeff Pitman, 2013 WAJ President
Informing patients about alternatives to treatment and risks involved with those treatments is the heart and soul of healthcare in Wisconsin. Informed consent has been the law in Wisconsin since the 70's. Backed up by a recent Wisconsin Supreme Court ruling in 2012 involving "informed consent," patients can only consent to a treatment if they are informed about the various choices and risks associated with each option. The legal standard is what a reasonable patient would want to know when being treated for an injury or illness.
To better explain informed consent, consider the case of a 14-year-old girl who was riding her bike and ran into the back of a dump truck. She was later found unconscious at the scene. While in the ER she vomited 5-6 times, amnesia was observed and there was swelling and bruising on the head. After neurological tests, but not a CT scan, she was diagnosed with a concussion. Later that evening she developed an intracranial bleed and was sent to another hospital that performed a CT scan which revealed a large blood clot in the brain. Surgery was performed but the damage was done, the young girl became a partial spastic quadriplegic as a result of the misdiagnosed blood clot.
Years later at trial, the jury was given the facts surrounding the case and found that the doctor failed to inform the girl's family about the complication of an intracranial bleed and the availability of a CT scan. And that a neurosurgeon was available at another hospital, which could have affected the results of the young girl's treatment and possibly could have resulted in a different outcome.
Currently in Wisconsin the informed consent law requires doctors to disclose what a reasonable patient would want to know when being treated for injury or illness. This puts the patient in charge of making his or her own health care decisions. Respect for a patient's right to self-determination requires that patients decide what is best for their health, rather than leaving the decision up to the doctor.
The proposed changes to Wisconsin's informed consent law in Assembly Bill 139 (AB-139) and Senate Bill 137 (SB-137) would change who makes treatment decisions from a "reasonable patient standard" to a "reasonable physician standard." This change gives doctors more control over your treatments without informing you about alternatives, putting your health in a position of increased danger and risk.
The changes to the informed consent law are also said to address a malpractice and defensive medicine issue in Wisconsin. In an interview with Public News Service of Wisconsin, UW Law Professor Meg Gaines said, it's a problem that doesn't exist in Wisconsin.
According to Gaines, only 117 cases were filed in Wisconsin alleging malpractice in 2012. Gaines added, before taking away a patient's right to self-determination, lawmakers should be taking more time to carefully consider such a fundamental revision.
Changes to the current informed consent law would move healthcare in Wisconsin backwards by giving the doctors control over a patient's treatment options, and for deciding the level of care the patient should receive. It would become doctor knows best.
The proposed law fails to put patient knowledge and patient safety first and sadly will not hold doctors liable for not informing patients of available treatment alternatives and diagnoses that might save their lives. Patients, not doctors, should be in charge of making their own decisions regarding their health, anything less would just be bad medicine.
On March 4th Attorney George Curtis and Attorney Ed Vopal sat down to discuss the proposed changes in Senate Bill 22 and Assembly Bill 29 that was introduced in early February by, Rep. Andre Jacque, Sen. Paul Farrow, and Sen. Glen Grothman. The change overrules the collateral source rule, which has been law in Wisconsin for over a century, and that was recently unanimously upheld by the Wisconsin Supreme Court.
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Updated WAJ Auto Insurance Brochure
WAJ has created an updated brochure, "Understanding Auto Insurance," to help Wisconsin drivers protect themselves. The brochure should help drivers evaluate what coverage they may need, and the benefits of optional coverage. It also explains the changes in the law effective November 1, 2011, and what they should ask their insurance agent when they buy or renew a policy.
You can read the auto brochure by browsing our Consumer Resources page, which is found under "the truth about the state of justice" at the top of this page.
"Understanding Auto Insurance" also contains a section about “phantom motor vehicles” that make no physical contact with the insured or with a vehicle the insured is occupying. Download the brochure to learn more!
Wisconsin Public News Source Offers Customized Stream of Stories for WAJ Members
The Wisconsin Civil Justice Education Foundation has been a proud sponsor of the Wisconsin Public News Service (PNS) since 2005. PNS, which delivers news in the public interest, also offers a customized stream of stories for WAJ members. Each story has a link to the podcast version of a story that should be of interest to our members and is easy to forward. We are able to receive PNS stories on our issues and have them hosted on our website easily accessible for our WAJ members to hear and share with their family, friends and clients. We hope you check back periodically to hear the newest news podcasts from WAJ. Click here to use this free service.