Victory in Informed Consent Case at Wisconsin Supreme Court

Jandre v. Physicians Ins. Co., 2012 WI 39, which was released on April 17, 2012, reaffirms Wisconsin’s informed consent law, applying the “reasonable patient standard” which Wisconsin has explicitly followed in informed consent cases since Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975).   The decision was 4-3, with Chief Justice Abrahamson writing the majority decision, joined by Justices Bradley and Crooks.  Justice Prosser wrote a concurring decision.  Justice Roggensack, joined by Justice Ziegler and Gableman, wrote the dissenting opinion.

Facts of the Case:

On June 13, 2003, while at work, Mr. Jandre began experiencing the following symptoms:  the coffee he was drinking began coming out of his nose, he began drooling and slurring his speech, the left side of his face drooped, he experienced about 20 minutes of dizziness and weakness in his legs.  He was taken to an emergency room where the emergency room doctor thought multiple conditions could be responsible for these symptoms, including stroke, Bell’s Palsy, tumors, or other syndromes. 

There are two types of strokes, hemorrhagic and ischemic.  Hemorrhagic strokes involve bleeding in the brain tissue and can be ruled out by a CT scan. An ischemic stroke is commonly caused by a blockage in the carotid artery in the neck that cuts off the brain's blood supply.  Doctors can listen to the carotid artery with a stethoscope for a “whooshing sound” to determine if there is blockage, but that is seen as a poor screening test.  The doctor had the option of ordering a carotid ultrasound to assess the state of Jandre's carotid arteries, but she chose not to. A carotid ultrasound is a non-invasive diagnostic technique that was available at the hospital and is more reliable than listening with a stethoscope.

On the basis of the symptoms and the tests performed, the doctor ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell's Palsy. The doctor informed Jandre that she believed that he had Bell's Palsy, prescribed medication, and sent him home with instructions to see a neurologist for follow-up care.

Eleven days later, Mr, Jandre suffered a full-blown stroke.  A carotid ultrasound performed at the hospital revealed that his right internal carotid artery was 95 percent blocked.

The Jandres sued the emergency room doctor asserting two claims: (1) the doctor negligently diagnosed Jandre with Bell's Palsy; and (2) the doctor breached her duty to inform a patient under Wis. Stat. § 448.30 by failing to inform Jandre of a diagnostic test, a carotid ultrasound, that was available to rule out the possibility of a stroke.

After a trial, the jury found that the doctor’s diagnosis of Bell's Palsy was not negligent, but found that the doctor was negligent with respect to her duty to inform the patient of the carotid ultrasound.

The question on appeal was because of the jury’s finding of non-negligence in the diagnosis of Bell’s Palsy, may a jury still find a breach of the duty to inform when the physician fails to advise the patient about the availability of diagnostic tests unrelated to the condition identified in the physician's non-negligent diagnosis.  In this case the availability of the carotid ultrasound test that would have definitively ruled out an ischemic stroke, rather than the less precise stethoscope test used.

Holding of Case

The Supreme Court found that the informed consent law uses a the reasonable patient standard requiring “that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis.”  Applying the reasonable patient standard to the facts and circumstances of the present case, the Court concluded that the circuit court could not determine, as a matter of law, that the physician had no duty to inform the patient of the possibility that the cause of his symptoms might be a blocked artery, which posed imminent, life-threatening risks, and of the availability of alternative, non-invasive means of ruling out or confirming the source of his symptoms.

Justice Abrahamson went through a thorough discussion of the informed consent law beginning with Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975), the enactment of Wis. Stat. § 448.30, and further refinements in Martin v. Richards, 192 Wis. 2d 156, 175, 531 N.W.2d 70 (1995) through Bubb v. Brusky, 2009 WI 91, 62, 321 Wis. 2d 1, 768 N.W.2d 903.

The Court then reaffirmed Wisconsin’s informed consent law, applying the “reasonable patient standard” which Wisconsin has explicitly followed in informed consent cases since Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975).

Concurrence

Justice Prosser concurs with the majority opinion, but not the lead opinion.  He found “ample evidence to support the verdict.” He also felt bound by stare decisis, because to reverse this decision would “require us to overrule or withdraw language from past cases and change the law. Such action is not warranted on the facts presented.”  But because of the ever-changing practice of medicine and the rules of informed, Justice Prosser recommends that the Legislature review Wis. Stat. § 448.30.

Dissent

Justice Roggensack finds that the jury’s finding that the doctor was not negligent in her care her diagnosis of Bell’s Palsy was is inconsistent with the jury's finding that the doctor was negligent in regard to her duty to obtain informed consent for not explaining the availability of the carotid ultrasound.  She believes that the lead opinion is a large expansion of the law of informed consent in Wisconsin, that would have “imposed strict liability for missed diagnoses by expanding a patient's right of informed consent under Wis. Stat. § 448.30 from a right to be informed about the risks and benefits of treatments and procedures that were recommended by the physician into a right to be informed about all treatments and procedures that were not recommended by the physician, but which may be relevant to whether the correct diagnosis was made.”

Congratulations are in order to Jim Weis of Rhinelander, Linda Meagher and Jim Fergal of Waukesha for their victory in this case.  Lynn Laufenberg and Bill Gleisner wrote WAJ’s amicus brief in the case.  We thank them for their efforts.

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