Brown v. Dibbell

• Citation: 582 N.W.2d 134,220 Wis.2d 200
• Decision Date: 19 May 1998
• Docket Number: No. 97-2181,97-2181
• Parties: Marlene BROWN and Kurt Brown, Plaintiffs-Appellants-Cross-Respondents, d v. David G. DIBBELL, M.D., Midelfort Clinic, Ltd., a Mayo Regional Practice, Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund, Defendants-Respondents-Cross-Appellants, dd Steven D. Johnson, M.D., Defendant-Respondent, Meridian Resource Corporation on behalf of Benefit Plan Administrators Co. and Wisconsin Physicians Service-Medicare Part B, Defendants.
• Court: Wisconsin Court of Appeals

Page 134

582 N.W.2d 134

220 Wis.2d 200

Marlene BROWN and Kurt Brown, Plaintiffs-Appellants-Cross-Respondents,^d v. David G. DIBBELL, M.D., Midelfort Clinic, Ltd., a Mayo

Regional Practice, Physicians Insurance Company of Wisconsin

and Wisconsin Patients Compensation Fund,

Defendants-Respondents-Cross-Appellants, ^dd

Steven D. Johnson, M.D., Defendant-Respondent,

Meridian Resource Corporation on behalf of Benefit Plan

Administrators Co. and Wisconsin Physicians

Service-Medicare Part B, Defendants.

No. 97-2181.

Court of Appeals of Wisconsin.

Submitted on Briefs March 16, 1998.

Opinion Released May 19, 1998.

Opinion Filed May 19, 1998.

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of George H. Senteney and Guelzow & Senteney, Ltd. of Eau Claire.

On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the brief of Steven J. Caulum and W. Scott McAndrew and Bell, Metzner, Gierhart & Moore, S.C. of Madison.

Before CANE, P.J., MYSE and HOOVER, JJ.

HOOVER, Judge.

Marlene and Kurt Brown appeal a judgment finding Marlene Brown contributorily negligent in an informed consent suit she brought against Dr. David Dibbell and Dr. Steven Johnson. The Browns contend that a patient cannot be contributorily negligent for purposes of informed consent for failing to make sufficient inquiries or by opting to undergo a viable treatment option the doctor recommends. We conclude the evidence does not sustain the jury's verdict that Brown was contributorily negligent. Dibbell cross-appeals, asserting that the trial court erred by refusing to instruct the jury on circumstances that excuse the physician's nondisclosure. Again, we agree. We therefore reverse and remand for a new trial.

Brown's twin sister died of breast cancer, and she was therefore concerned when she detected a lump and tenderness in her breast. On June 9, 1993, Brown was examined by her general physician, Dr. Alfuth, who ordered a mammogram. He found an area of concern in Brown's right breast, but no precise abnormality. He referred her to Dibbell for an evaluation. Alfuth recommended Dibbell, a reconstructive surgeon, because Brown had implants.

Dibbell examined the mammogram and area of concern, but did not find anything that "look[ed] particularly highly suspicious." Given her medical history, however, he told Brown her chances of developing cancer were "highly probable." He referred Brown to Johnson, a general surgeon, for a second opinion. Johnson also concluded and informed Brown that she was in a "high risk category of developing breast cancer." Neither doctor provided Brown with statistics or percentages illustrating the risk.

Both doctors recommended that Brown undergo a bilateral mastectomy. Dibbell contends that Brown met the criteria for the procedure because of her family history, fear of developing cancer and the difficulties of performing a biopsy due to the breast implants. He further asserts that: he had a lengthy, detailed discussion with Brown before surgery, addressing both the cancer risk and likely outcome of the surgery; he never told Brown she had cancer; he advised her there was nothing to indicate cancer; and he told her the radiologist recommended follow-up with another mammogram in six months. Brown contends that she was never given any treatment options, such as continued mammograms or waiting six months. She also claims that Dibbell repeatedly reassured her that, with post-operative reconstruction, she would be as cosmetically pleasing in appearance as she had been prior to the mastectomy.

Following surgery, Brown experienced extraordinary scarring to the breasts, asymmetrical nipples and unduly thin skin flaps that led to other problems. She experienced a loss of sensation and sensibility in her breasts. She also claims deep emotional and psychological scars. She brought a medical malpractice and informed consent suit against the doctors. At trial, the jury found that Dibbell was not negligent in providing medical care, but that he violated his informed consent duties. The jury also found Brown contributorily negligent. It apportioned the negligence as 50% for both Brown and Dibbell. ¹ We first consider the Browns' contention that comparative negligence principles are inapplicable in informed consent cases.

The premise behind the informed consent doctrine is that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body ." Canterbury v. Spence, 464 F.2d 772, 780 (D.C.Cir.1972) (quoting Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914)). True consent is the informed exercise of choice, and entails the opportunity to knowledgeably evaluate the available options and attendant risks. Id. The informed consent doctrine recognizes the knowledge disparity between physician and patient. "The relation of physician and patient has its foundation on the theory that the former is learned, skilled, and experienced in those subjects about which the latter ordinarily knows little or nothing ." 61 AM.JUR.2D Physicians, Surgeons & Other Healers § 166 at 298 (1981).

Wisconsin has long recognized a doctor's duty to inform a patient about viable treatment options and attendant risks and benefits. Our supreme court stated:

[T]he duty of the doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of disclosure to intelligently exercise his right to consent or to refuse the treatment or procedure proposed.

Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis.2d 1, 13, 227 N.W.2d 647, 654 (1975). This duty was codified in the first sentence of § 448.30, STATS., which sets forth the informed consent standard: "Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments."

The doctor's disclosures are determined by the objective standard of what a reasonable person similarly situated would want to know to make an informed, intelligent decision. Martin v. Richards, 192 Wis.2d 156, 174-75, 531 N.W.2d 70, 78 (1995). The standard to which a physician is held is determined not by what the particular patient being treated would want to know, but rather by what a reasonable person in the patient's position would want to know. Johnson v. Kokemoor, 199 Wis.2d 615, 631, 545 N.W.2d 495, 501 (1996).

The trial court determined that contributory negligence is available as a defense in an informed consent action. Whether a particular defense is available against a cause of action is generally a question of law reviewed de novo. See Highlands Ins. Co. v. Continental Cas. Co., 64 F.3d 514, 521 (9th Cir.1995); Laborers Health & Welfare Trust Fund v. Westlake Dev., 53 F.3d 979, 981 (9th Cir.1995); Bryan v. James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1332 (11th Cir.1994); United States v. Wilcox, 919 F.2d 109, 111 (9th Cir.1990).

Brown claims that Dibbell violated his informed consent duty both by failing to provide information a reasonable patient would want to know ² and by misinforming her as to her post-operative appearance. Dibbell contends that Brown, as a party to the informed consent colloquy, was partially responsible for any claimed lack of information. He also suggests that because the surgery was elective, she negligently elected to undergo the mastectomy.

We conclude that § 448.30, STATS., places a duty on the doctor to obtain a patient's informed consent and that, with respect to a patient consenting to a treatment option the doctor presents as viable, that patient generally would not be contributorily negligent. ³ The statute speaks solely in terms of the doctor's duty to disclose and discuss information related to treatment and risks. It does not intimate, let alone place upon a patient, an affirmative duty to investigate, question, or seek quantification of the information provided by the doctor. Rather, the entire gravamen of the informed consent statute is that a patient is not in a position to know treatment options and risks and, standing alone and unaided, is unable to make an informed choice. The doctor, who possesses medical knowledge and skills, has the affirmative burden both to comprehend what a reasonable patient in a similar situation would want to know and to provide the relevant information. Moreover, while every individual has a duty of ordinary care for their own person, the underpinning of the contributory negligence defense, ⁴ we perceive defining the dimensions of a patient's duty in an informed consent case to be a virtually impossible task. What degree of knowledge or insight can be demanded of one whom the law recognizes as unqualified to make decisions involving the complexities of medical science without assistance? The concept that a patient can be contributorily negligent, for example, by not asking enough or precisely proper questions, seems contrary to the statutory scheme and the reason for placing the burden on the doctor.

Other jurisdictions have addressed the question whether comparative negligence principles are logically consistent with the law of informed consent. Hawaii has concluded that it is unfair and illogical to impose an affirmative duty on a patient to make an inquiry or otherwise affirmatively act with respect to informed consent. Keomaka v. Zakaib, 8 Haw.App. 518, 811 P.2d 478, 486 (1991). "[W]here a patient has no duty in the informed consent context, we cannot see how the patient can be contributorily negligent. We agree with Professor Capron that contributory negligence 'has no place in an action for failure to obtain informed consent.' " Id. (quoting Capron, Informed Consent in Catastrophic Disease Research and Treatment, 123 U. PA. L. REV . 340, 410 (19...