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.