Jandre v. Wis. Injured Patients & Families Comp. Fund

Citation2012 WI 39,813 N.W.2d 627,340 Wis.2d 31
Decision Date17 April 2012
Docket NumberNo. 2008AP1972.,2008AP1972.
PartiesThomas W. JANDRE and Barbara J. Jandre, Plaintiffs–Respondents, v. WISCONSIN INJURED PATIENTS AND FAMILIES COMPENSATION FUND, Defendant–Co–Appellant, Physicians Insurance Company of Wisconsin and Therese J. Bullis, M.D., Defendants–Appellants–Petitioners. Thomas W. Jandre and Barbara J. Jandre, Plaintiffs, v. Wisconsin Injured Patients and Families Compensation Fund, Defendant–Respondent, Physicians Insurance Company of Wisconsin and Therese J. Bullis, M.D., Defendants–Appellants–Petitioners.
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

For the defendants-appellants-petitioners, there were briefs filed by Michael B. Van Sicklen and Krista J. Sterken, and Foley & Lardner, LLP, Madison, and oral argument by Michael B. Van Sicklen.

For the plaintiffs-respondents there was a brief filed by Linda V. Meagher, Dana J. Weis, James M. Fergal, and Habush, Habush & Rottier, S.C., Waukesha, and oral argument by Dana J. Weis.

An amicus curiae brief was filed by Lynn R. Laufenberg and Laufenberg, Stombaugh & Jassak, S.C., Milwaukee, and William C. Gleisner, III, Hartland, on behalf of the Wisconsin Association for Justice.

Amicus curiae briefs were filed by Guy DuBeau, and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Medical Society, Inc., the Wisconsin Hospital Association, Inc. and the Wisconsin Chapter of the American College of Emergency Physicians, Inc.

An amicus curiae brief was filed by William F. Bauer and Karen M. Gallagher, and Coyne, Schultz, Becker & Bauer, S.C., Madison, on behalf of Dean Health System, Inc., Marshfield Clinic and Gundersen Lutheran Health System, Inc.

SHIRLEY S. ABRAHAMSON, C.J.

[340 Wis.2d 45]¶ 1 This is a review of a published decision of the court of appeals in a medical malpractice case.1 The court of appeals affirmed a judgment of the Circuit Court for Fond du Lac County, Robert J. Wirtz, Judge, entered on a jury verdict in favor of Thomas W. Jandre (Jandre) and his wife, Barbara J. Jandre (collectively, the Jandres), against Dr. Therese J. Bullis and her insurer, Physicians Insurance Company of Wisconsin (collectively, PIC) and the Wisconsin Injured Patients and Families Compensation Fund (the Fund). PIC seeks review, but the Fund does not.

¶ 2 We briefly put the issue presented and PIC's position in context. The Jandres asserted two claims: (1) Dr. Bullis negligently diagnosed Jandre with Bell's palsy; and (2) Dr. Bullis breached her duty to inform a patient under Wis. Stat. § 448.30 (2007–08),2 by failing to inform Jandre of a diagnostic test (a carotid ultrasound) that was available to rule out the possibility of a stroke. Stroke was one of several conditions that was included in Dr. Bullis's differential diagnosis 3 but it was not in her final diagnosis.

¶ 3 The jury found that Dr. Bullis's diagnosis of Bell's palsy was not negligent and also found that Dr. Bullis was negligent with respect to her duty to inform the patient.4 The circuit court entered judgment on the verdict, and the court of appeals affirmed the judgment.

¶ 4 PIC presents the issue as follows: Is there a bright-line rule that once a physician makes a non-negligent final diagnosis, there is no duty to inform the patient about diagnostic tests for conditions unrelated to the condition that was included in the final diagnosis? Stating the issue in terms of the facts of the present case, PIC asks: When a jury in a medical malpractice case finds that the emergency room physician was not negligent in the diagnosis of Bell's palsy, may a jury find a breach of the duty to inform when the physician fails to advise the patient about the availability of a non-invasive diagnostic tool (a carotid ultrasound) that might definitively rule out a stroke (a condition that appeared in the differential diagnosis and is unrelated to the final diagnosis of Bell's palsy), when the physician ruled out a stroke by a less reliable diagnostic tool?

¶ 5 PIC answers these questions in the negative and urges us to adopt a bright-line rule. PIC asserts that, as a matter of law, a physician has no duty to inform the patient about conditions unrelated to the condition identified in the physician's non-negligent diagnosis, and that the facts in the present case are so clear that as a matter of law the circuit court had to find Dr. Bullis not negligent on the claim of breach of duty to inform rather than let the jury decide the question.

¶ 6 PIC argues that the circuit court and court of appeals expanded a physician's duty to inform beyond what Wisconsin courts have previously recognized. PIC asks the court to reverse the decision of the court of appeals, vacate the jury's verdict, and vacate the award of damages on the informed consent claim.

¶ 7 We affirm the decision of the court of appeals by applying the reasonable patient standard (sometimes referred to as the “prudent patient” standard), which Wisconsin has explicitly followed in informed consent cases since at least 1975.5 The doctrine of stare decisis governs the present case.

¶ 8 Under the reasonable patient standard, “Wisconsin law ‘requires that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatmentor diagnosis.’ 6 The reasonable patient standard requirement of disclosure “is rooted in the facts and circumstances of the particular case in which it arises.” 7 The bright-line rule PIC urges is incompatible with the reasonable patient standard adopted by the legislature in Wis. Stat. § 448.30 and explained in case law.

¶ 9 [T]he informed consent standard ... [i]s an objective standard based on negligence principles such as reasonableness....” 8 Thus, the physician's “duty to inform is not boundless.” 9

¶ 10 Applying the reasonable patient standard to the facts and circumstances of the present case involving a non-negligent diagnosis of Bell's palsy, we conclude 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.

¶ 11 PIC raises a fundamental legal question concerning the scope of a physician's duty to inform a patient. We begin by recognizing that the instant case, like many cases this court decides, presents complicated questions about how a legal doctrine, here the reasonable patient standard in informed consent cases, unfolds in real life situations.

I

¶ 12 The practice of medicine is complex. Circumstances differ from case to case. Patients often lack the expertise of their physicians, and patients can become overwhelmed and confused by medical information. Nonetheless, the court and the legislature have embraced the notion that although the physician is the expert, the patient should have the opportunity to understand what is happening to his or her body and autonomously and intelligently consent or refuse to consent to proposed medical care.10 Informed consent is fundamentally about each person's right to decide “what shall be done with his [or her] own body.” 11

¶ 13 Creating informed consent requirements that allow physicians to confidently perform their all-important work without fearing unfair and unpredictable liability, and that give patients a meaningfulopportunityto intelligently exercise their right of self-determination, is the challenge. A careful balance must be struck and clearly communicated to the concerned communities.12

¶ 14 The court and the legislature have made this balance by adopting the reasonable patient approach to informed consent.

A

¶ 15 The formulation of the reasonable patient approach is stated in a variety of consistent ways in the case law. The objective, negligence-based approach inherently limits the scope of the physician's duty to inform the patient. A “physician's duty to inform is not boundless.” 13

¶ 16 The physician's duty to inform does not mean the physician is “required to know every potential risk but only those known to a reasonably well qualified practitioner or specialist commensurate with his [or her] classification in the medical profession.” 14 Notably for the present case, in 2009 this court refused to accept the argument that the reasonable patient standard would unduly burden emergency room physicians. 15

¶ 17 The physician must disclose only “what is material to the patient's decision, i.e., all of the viable alternatives and risks of the treatment proposed.” 16 This means that “Wisconsin law ‘requires that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis.’ 17 There is a “duty imposed on the physician to disclose to the patient the existence of any methods of diagnosis or treatment that would serve as feasible alternatives to the method initially selected by the physician to diagnose or treat the patient's illness or injury.” 18

¶ 18 The court has observed that [w]hat constitutes informed consent in a given case emanates from what a reasonable person in the patient's position would want to know.” 19 The court has rejected a proposed bright-line rule that would require physicians “to disclose only significant complications intrinsic to the contemplated procedure.” 20 The court has observed that [t]he prudent patient standard adopted by Wisconsin in Scaria is incompatible with such a bright line rule.” 21

¶ 19 The requirement of disclosure “is rooted in the facts and circumstances of the particular case in which it arises.” 22 “The information that is reasonably necessary for a patient to make an informed decision regarding treatment will vary from case to case.” 23

¶ 20 The physician is “to make such disclosures as appear reasonably...

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4 cases
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    • United States State Supreme Court of Wisconsin
    • 3 Julio 2013
    ...cases) (collecting cases including cases on the spiritual treatment defense). 42.Jandre v. Wis. Injured Patients & Families Comp. Fund, 2012 WI 39, ¶ 60, 340 Wis.2d 31, 813 N.W.2d 627. 43. Judicial Council Note, 1988, Wis. Stat. § 939.24. “[R]ecklessness requires a subjective mental state: ......
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    ...the Wisconsin Supreme Court was the only court to reach the opposite conclusion, see Jandre v. Wis. Injured Patients &Fams. Comp. Fund, 813 N.W.2d 627, 648-49 (Wis. 2012), but its legislature swiftly overruled that decision. It amended the state's informed consent statute to exclude from th......
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