Jandre v. Physicians Ins. Co. of Wis.
| Decision Date | 28 September 2010 |
| Docket Number | No. 2008AP1972.,2008AP1972. |
| Parties | Thomas W. JANDRE and Barbara J. Jandre, Plaintiffs-Respondents, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN and Therese J. Bullis, M.D., Defendants-Appellants,FN† FN† Petition for review granted March 16, 2011.Wisconsin Injured Patients and Families Compensation Fund, Defendant-Co-Appellant. Thomas W. Jandre and Barbara J. Jandre, Plaintiffs, v. Physicians Insurance Company of Wisconsin and Therese J. Bullis, M.D., Defendants-Appellants, Wisconsin Injured Patients and Families Compensation Fund, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael B. Van Sicklen and Bree Grossi Wilde of Foley & Lardner, LLP, Milwaukee.
On behalf of the defendant-co-appellant, the cause was submitted on the briefs of John F. Mayer and Ryan R. Graff, Milwaukee.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Linda V. Meagher, D. James Weis and James M. Fergal of Habush, Habush & Rottier S.C., Waukesha.
Before CURLEY, P.J., FINE and BRENNAN, JJ.
¶ 1 This case arises out of a medicalmalpractice action. Thomas W. Jandre ("Jandre" unless otherwise noted) and his wife Barbara J. Jandre (collectively, the "Jandres") brought medical negligence and informed consent claims against Dr. Therese J. Bullis and her insurer Physicians Insurance Company of Wisconsin (hereinafter referred to collectively as "PIC") and the Wisconsin Injured Patients and Families Compensation Fund ("the Fund"). The Jandres claimed that Dr. Bullis: (1) negligently diagnosed Jandre with Bell's palsy and (2) failed to inform Jandre of a test to rule out a stroke, which was a condition that Dr. Bullis had included in her differential diagnosis but not inher final diagnosis.1 The jury decided that Dr. Bullis did not negligently diagnose Jandre with Bell's palsy but was negligent with respect to her duty of informed consent under Wis. Stat. § 448.30 (2007-08).2 The trial court entered judgment against PIC and the Fund on the jury's informed consent verdict, and apportioned damages between the two. However, the court required PIC alone to pay all of the judgment interest and costs. Two issues have been raised on appeal.
¶ 2 First, PIC and the Fund jointly appeal the trial court's judgment, contending that the informed consent obligation of Wis. Stat. § 448.30 is limited to information about the physician's final diagnosis only and that the trial court erred when it applied thedoctrine to Dr. Bullis' differential diagnosis. The Jandres, relying on the "reasonable person" test of Martin v. Richards, 192 Wis.2d 156, 531 N.W.2d 70 (1995), and Bubb v. Brusky, 2009 WI 91, 321 Wis.2d 1, 768 N.W.2d 903, argue that § 448.30 does not limit a physician's duty of informed consent to information about conditions in the final diagnosis. Rather, they assert that a physician is required to disclose information about all alternate, viable medical modes of treatment, including diagnosis, that a reasonable person in the patient's position would want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis. See Martin, 192 Wis.2d at 176, 531 N.W.2d 70; see also Bubb, 321 Wis.2d 1, ¶ 71, 768 N.W.2d 903 () (citing Martin, 192 Wis.2d at 174, 531 N.W.2d 70).
¶ 3 We agree with the Jandres and affirm on this first issue because well-established precedent in Wisconsin makes it clear that the outcome of each case depends on its particular circumstances. Consequently, the scope of the information a physician is required to disclose is not limited to information regarding the final condition diagnosed, but instead, a physician must disclose "what ... a reasonable person in the patient's position [would] want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis." See Martin, 192 Wis.2d at 176, 531 N.W.2d 70. Here, Dr. Bullis first diagnosed Jandre as either having some kind of stroke or Bell's palsy and later formed a final diagnosis of Bell's palsy. As treatment, she recommended Jandre go home and wait for the Bell's palsy to resolve because Bell's palsy generally resolves on its own. A stroke, on the other hand, can kill or seriously injure a patient. There is no test for Bell's palsy, butthere is a test, a carotid ultrasound, which can detect a mini-stroke or full-blown ischemic stroke. We conclude that under these circumstances, Jandre, in order "to make an intelligent decision with respect to the choices of treatment or diagnosis" would want to know if he was having a stroke. See id. at 175, 531 N.W.2d 70. Accordingly, Wis. Stat. § 448.30 required Dr. Bullis to inform Jandre of the test.
¶ 4 Second, PIC alone appeals the trial court's order requiring it to pay all of the judgment interest and costs. PIC arguesthat the Fund should be responsible for paying its pro rata share of the taxable costs and interest based on its share of the judgment. We conclude that the plain meaning of Wis. Admin. Code § INS 17.35 (Mar. 2010) and Wis. Stat. ch. 655 obligate PIC to pay all of the judgment interest in this case. Further, we conclude that PIC waived the issue of who should pay judgment costs. Consequently, we affirm on the second issue as well.
¶ 5 On June 13, 2003, Jandre was at work and driving to a job site when he drank some coffee and it came out through his nose. He was drooling, his speech was slurred, his face drooped on the left side, he was unsteady, dizzy and his legs felt weak. His co-workers took him to the St. Joseph's Hospital West Bend emergency room. Jandre told the emergency room nurse his complaints, and his co-workers reported their observations of Jandre's symptoms. The nurse noted in Jandre's chart that he complained of left facial weakness, slurred speech and dizziness that lasted approximately twenty-plus minutes. The nurse noted that she observed that the left side of Jandre's face drooped.
¶ 6 Jandre was evaluated at the emergency room by Dr. Bullis. Dr. Bullis read Jandre's chart, including the nurse's notes, took a medical, social and family history from Jandre and performed a physical examination. Dr. Bullis testified that she observed left-side facial weakness and mild slurred speech. She made a differential diagnosis—which she testified was a "list" of what she was "evaluating the patient for"—of some kind of stroke or Bell's palsy.
¶ 7 The testimony at trial established that there are two types of stroke: (1) ischemic, during which the blood supply to the brain is cut off, most commonly due to blockage in the carotid artery in the neck, and (2) hemorrhagic, during which there is bleeding in the tissue of the brain. There are also two types of temporary blockages, or "mini-strokes," a transient ischemic accident ("TIA") and a reversible ischemic neurological deficit ("RIND"), both of which are warning signs of a "full blown" stroke, which can cause death or permanent injury. A TIA is temporary and does not usually result in long term damage. A RIND is similar to a TIA but lasts more than twenty-four hours. Dr. Bullis ordered a CT scan for Jandre, which can determine whether a patient suffered from a hemorrhagic stroke, a brain bleed or a tumor. The results of the CT scan were normal. Dr. Bullis conceded that the CT scan would not detect an ischemic stroke. Although there is a test to determine whether a patient suffered an ischemic stroke—a carotid ultrasound, which was available at St. Joseph's Hospital—Dr. Bullis did not order one.
¶ 8 The trial testimony also established that Bell's palsy is an inflammation of the seventh cranial nerve, which is responsible for facial movement. It is not life-threatening, and the majority of people whosuffer from Bell's palsy recover after several weeks or months without any further symptoms. There is no test for Bell's palsy. It is diagnosed by ruling out everything else.
¶ 9 Dr. Bullis' final diagnosis was that Jandre had a mild form of Bell's palsy. She concluded Jandre was not having a stroke based on the fact that the CT scan did not reveal a hemorrhagic stroke, and her physical exam did not reveal an ischemic stroke. However, Dr. Bullis testified that she did not order the carotid ultrasound test to rule out ischemic stroke. She testified that instead of the ultrasound she listened to Jandre's carotid arteries to determine if she heard a whooshing sound,which is indicative of ischemic stroke, and heard nothing. But she admitted that listening to the carotid arteries is a "very, very poor screening test for [determining] what shape the carotid[ ] [arteries] are in," and that if the carotid arteries are severely blocked, up to ninety-five percent or so, a physician listening to the carotid arteries will not likely hear the whooshing sound. There was testimony that the best test for evaluating the carotid arteries is the carotid ultrasound. Dr. Bullis acknowledged that not all of Jandre's symptoms fit the Bell's palsy diagnosis and that some of the symptoms were indicative of a stroke, but Bell's palsy was her final diagnosis.
¶ 10 Accordingly, Dr. Bullis told Jandre he had a very mild form of Bell's palsy. She told him if he developed other weakness or numbness or any other symptoms not associated with taste or hearing, he should seek immediate medical attention. She prescribed medicine for Bell's palsy and told him to check with his physician in one week or sooner if any concerning symptoms developed. Her diagnosis of Bell's palsyand her treatment recommendations were documented in Jandre's medical records.
¶ 11 Dr. Bullis did not tell Jandre that he had an atypical presentation of Bell's palsy or that his symptoms were also consistent with a stroke. Although Dr....
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