Brown v. Dibbell
| Decision Date | 23 June 1999 |
| Docket Number | No. 97-2181,97-2181 |
| Citation | 227 Wis.2d 28,595 N.W.2d 358 |
| Parties | Marlene BROWN and Kurt Brown, Plaintiffs-Appellants-Cross-Respondents-Cross Petitioners, v. David G. DIBBELL, M.D., Midelfort Clinic, Ltd., a Mayo Regional Practice, and Physicians Insurance Company of Wisconsin, Defendants-Respondents-Cross- Appellants-Petitioners, Steven D. Johnson, M.D., Meridian Resource Corporation on behalf of Benefit Plan Administrators Co. and Wisconsin Physicians Service-Medicare Part B, Defendants. |
| Court | Wisconsin Supreme Court |
For the defendants-respondents-cross-appellants-petitioners there were briefs by Joy L. O'Grosky, Curtis C. Swanson, Rita M. Knauss, Nicholas S. Harned and Axley Brynelson, LLP, Madison and oral argument by Joy L. O'Grosky.
For the plaintiffs-appellants-cross-respondents-cross petitioners there were briefs by Thomas Kent Guelzow, Michael L. Laufenberg and Guelzow & Laufenberg, Ltd., Eau Claire and oral argument by Thomas Kent Guelzow.
Amicus curiae brief was filed by D.J. Weis and Habush, Habush, Davis & Rottier, S.C., Rhinelander for the Wisconsin Academy of Trial Lawyers.
Amicus curiae brief was filed by William H. Levit, Jr., Michael B. Apfeld and Godfrey & Kahn, S.C., Milwaukee and Steven J. Caulum and Bell, Gierhart & Moore, S.C., Madison for the Wisconsin Patients Compensation Fund.
This is a review of a published opinion of the court of appeals, Brown v. Dibbell, 220 Wis.2d 200, 582 N.W.2d 134 (Ct.App.1998). The Circuit Court for Trempealeau County, John A. Damon, Judge, entered judgment in favor of Marlene Brown and her husband Kurt Brown against David G. Dibbell, Midelfort Clinic, Ltd., Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund. 1 The court of appeals concluded that the circuit court had erred and remanded the cause for a new trial.
¶2 Marlene Brown and her husband, Kurt Brown, referred to collectively as the plaintiffs, allege that Ms. Brown sustained injuries as a result of Dr. David G. Dibbell's violation of the Wisconsin informed consent statute, Wis. Stat. § 448.30 (1993-94). 2 The plaintiffs sued Dr. Dibbell; the Midelfort Clinic, Ltd., which employed Dr. Dibbell; their joint insurer, Physicians Insurance Company of Wisconsin; and the Wisconsin Patients Compensation Fund, referred to collectively as the defendants. 3
¶3 Two issues are presented in this informed consent action. The first issue is whether the circuit court erred in instructing the jury that Ms. Brown may be found contributorily negligent under Wis. Stat. § 448.30. The jury found that Ms. Brown was contributorily negligent, that is, she failed to exercise ordinary care with regard to her own health and well-being.
¶4 The second issue is whether the circuit court erred in failing to instruct the jury about defenses asserted by Dr. Dibbell under Wis. Stat. § 448.30. The jury found Dr. Dibbell negligent with respect to obtaining Ms. Brown's informed consent to the surgery.
¶5 As to the first issue, we conclude that as a general rule patients have a duty to exercise ordinary care for their own health and well-being and that contributory negligence may, under certain circumstances, be a defense in an informed consent action. We agree, however, with the court of appeals that the very patient-doctor relation assumes trust and confidence on the part of the patient and that it would require an unusual set of facts to render a patient guilty of contributory negligence when the patient relies on the doctor.
¶6 The more difficult question then is to define the dimensions of a patient's duty to exercise ordinary care for the patient's health and well-being under Wis. Stat. § 448.30. The record in this case presents three aspects of a patient's duty. 4 We examine each in turn and conclude that the circuit court erred in not tailoring the pattern jury instruction on contributory negligence as we describe below.
¶7 (1) A patient's duty to exercise ordinary care in an informed consent action includes a patient's duty to tell the truth and give complete and accurate information about personal, family and medical histories to a doctor to the extent possible in response to the doctor's requests for information when the requested information is material to the doctor's duty prescribed in Wis. Stat. § 448.30. The jury should have been so instructed in the present case.
¶8 (2) A patient's duty to exercise ordinary care in an informed consent action generally does not impose on the patient an affirmative duty to ascertain the truth or completeness of the information presented by the doctor; to ask questions of the doctor; or to independently seek information when a reasonable person would want such information. We conclude that a patient usually has the right to rely on the professional skills and knowledge of a doctor. We do not conclude, however, that a patient may never be contributorily negligent for failing to take such steps. We merely conclude that it would require a very extraordinary fact situation for a jury to be instructed that a patient may be found contributorily negligent for relying on the information presented by the doctor, for failing to ask the doctor for information or for failing to independently seek information. The evidence does not place this case in the realm of the extraordinary.
¶9 (3) A patient does not, except in a very extraordinary fact situation, fail to exercise ordinary care for her health or well-being in an informed consent action when the patient chooses a viable medical mode of treatment presented by a doctor. The evidence does not place this case in the realm of the extraordinary.
¶10 As to the second issue presented in this case, we conclude that the circuit court erred in refusing to grant defendants' motion to instruct the jury about defenses set forth in Wis. Stat. § 448.30, when evidence suggesting such defenses was presented.
¶11 We affirm the decision of the court of appeals that the cause be remanded to the circuit court for a new trial, but our rationale is different from that of the court of appeals.
¶12 These are the relevant facts for review. At age 36, Marlene Brown sought the advice of her doctor, Dr. R.P. Alfuth of the Midelfort Clinic, for his opinion about a lump in her right breast. Dr. Alfuth examined Ms. Brown and felt a possible cyst in her right breast. He decided to obtain a mammogram and, because Ms. Brown had saline breast implants, sent her for a consultation with Dr. David Dibbell, a reconstructive surgeon at the Midelfort Clinic who was familiar with examining patients with breast implants.
¶13 On June 17, 1993, Dr. Perry L. Kyser, a radiologist at the Midelfort Clinic, reported that Ms. Brown's mammogram showed a possible density in her right breast, that clinical confirmation was recommended, and that if clinical examination revealed no palpable abnormality in the right breast, then "follow-up of the right breast only in 6 months [was] suggested."
¶14 On August 30, 1993, Ms. Brown consulted with Dr. Dibbell. At trial, Dr. Dibbell testified that at this first consultation with Ms. Brown he reassured her that the lump she detected was actually a portion of her implant. Ms. Brown told him that her twin sister had died three years previously from breast cancer, that her mother also had breast cancer, and that she had multiple other female relatives with the disease. He testified that he explained to Ms. Brown that she was at "high risk" for developing breast cancer because of her family history, but that there was nothing to indicate that she had cancer. Dr. Dibbell also testified that Ms. Brown repeatedly asked about treatment options despite his insistence that the discussion was premature until after he had consulted with the radiologists. Dr. Dibbell stated that he reluctantly discussed with Ms. Brown the option of elective bilateral mastectomies because of her remarkable fear of developing breast cancer, her significant family history of the disease and the difficulty of assessing the lump because of her breast implants.
¶15 Dr. Dibbell testified that shortly after this first consultation with Ms. Brown, he consulted with Dr. Kyser and another radiologist at the Midelfort Clinic. According to Dr. Dibbell's testimony, the radiologists told him that they did not consider the lesion to be suspicious and that therefore it was reasonable to wait six months and take another mammogram of her right breast. He also testified that the radiologists told him that biopsy by "needle localization" was not medically indicated because the needle might puncture her implant and that the procedure was otherwise futile because the lesion could not be localized by touch.
¶16 On September 9, 1993, Dr. Dibbell saw Ms. Brown for a follow-up examination. Dr. Dibbell physically re-examined Ms. Brown's right breast and again concluded that he felt nothing particularly suspicious. Dr. Dibbell testified that he spent 40 minutes at the September 9, 1993, consultation and discussed treatment options with Ms. Brown. He stated that these discussions included the radiologists' opinions that it was reasonable to wait for six months and that needle localization was not appropriate. Dr. Dibbell also testified that Ms. Brown refused the option of waiting for six months and then taking another mammogram because of her intense fear of developing breast cancer. He explained to her that if she felt she had to do something, prophylactic bilateral mastectomies made better sense than many inconclusive biopsies.
¶17 On September 15, 1993, Ms. Brown consulted with Dr. Johnson, a surgeon at Midelfort Clinic, who testified that Ms. Brown told him her twin sister, her mother and two aunts had breast cancer. Dr. Johnson testified that he told Ms. Brown that she was in a high risk category of developing breast cancer. Dr. Johnson testified that he informed Ms. Brown that he considered her two...
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