Pluger v. Physicians Ins. Co. of Wis.
| Citation | 201 Wis.2d 815,549 N.W.2d 286 |
| Decision Date | 30 April 1996 |
| Docket Number | No. 95-1886,95-1886 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. William PLUGER, Plaintiff-Appellant, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Wisconsin Patients Compensation Fund, Valley Orthopedic Clinic, S.C., and William R. Richards, M.D., Defendants-Respondents. |
| Court | Court of Appeals of Wisconsin |
APPEAL from a judgment and an order of the circuit court for Outagamie County: DEE R. DYER, Judge.
Before CANE, P.J., and LAROCQUE and WEDEMEYER, JJ.
William Pluger appeals a judgment on a verdict dismissing his action against Dr. William Richards and an order denying motions after verdict. Pluger alleged a failure to obtain an informed consent to surgery as required by § 448.30, Stats., 1989-90, as well as negligence in connection with the treatment surrounding his fractured femur. Pluger argues: (1) The jury's findings of informed consent and no negligence were unsupported by credible evidence; (2) the trial court improperly instructed the jury on both issues; (3) the court erred by excluding evidence of subsequent treatment measures by a different physician; (4) the court erred by excluding impeachment evidence from Richards' deposition testimony, and (5) a new trial is required because the jury's findings are contrary to the great weight and clear preponderance of the evidence. We reject Pluger's arguments and affirm the judgment.
Pluger (d.o.b.11/9/59) was diagnosed with cancer in his right thigh in 1986. Dr. Donald Hackbarth, an orthopedic oncologist in Milwaukee, treated the cancer by removing the tumor and quadriceps muscle and treating the leg with radiation. This treatment weakened and reduced the blood supply to Pluger's femur. These conditions presented a greater potential for non-healing and infection for fracture injuries.
Pluger suffered an initial non-displaced fracture of his femur in 1988. A non-displaced fracture is one in which the ends of the bone remain in place. A non-displaced fracture heals more readily than a displaced fracture. Hackbarth treated this fracture and left it to heal on its own. Pluger suffered yet another non-displaced femur fracture in 1989, and also fractured his kneecap. At this time, Hackbarth performed a biopsy on the site and, finding no recurrence of cancer, performed surgery to remove the kneecap.
Then, in 1990, Pluger suffered the subject displaced fracture of his femur when he slipped and fell. He managed to drive himself home and lay in pain for several hours, and unsuccessfully tried to reach Hackbarth. Pluger contacted a different doctor, who called in Richards as an orthopedic specialist. Pluger arrived to see Richards at the Appleton Medical Center in a great deal of pain. Before examining Pluger, Richards familiarized himself with Pluger's medical history and reviewed his X-rays. Richards did not confer with the doctors involved in Pluger's prior treatment for cancer and did not review their records.
Richards examined Pluger and discussed treatment options with him. Richards testified that he knew about Pluger's prior radiation therapy and that it put his femur fracture at a high risk of infection and non-healing. For reasons discussed later, Richards did not inform Pluger of this high risk when he gave Pluger his treatment choices, and Pluger did not know he was at a high risk.
Richards asked Pluger if he would prefer to be stabilized and transferred to Milwaukee to be treated by Hackbarth when he became available. Pluger declined this alternative. Richards then presented Pluger with two primary treatment options. First, he recommended a closed procedure in which Pluger would be placed in traction in the hospital for a number of weeks and then given a spica cast. This procedure would not have exposed the bone to air and presented a lower risk of infection. Pluger declined this treatment because he wanted to avoid an extended stay at the hospital.
Richards also suggested "open intramedullary rodding" in which he would open the fracture site and insert a rod into the bone to properly align and join the ends of the fracture as close as possible. Pluger agreed to the open procedure and signed a consent form.
Richards did not offer Pluger "closed intramedullary rodding" as a treatment option. At trial, Pluger offered the testimony of two physicians that the closed procedure was more appropriate than the open procedure because it presented less risk of an infection. However, a defense expert testified he thought the open procedure was more appropriate.
Richards did not give Pluger a prophylactic antibiotic before surgery or discuss with Pluger the fact that he would not be using one. A prophylactic antibiotic is used to prevent or minimize the chances of infection. Pluger testified that when he signed the informed consent form "I was hurting and I just signed it; ... I felt a lot of pain, and I wanted help now, is what I felt."
Richards performed the surgery, and discharged Pluger shortly thereafter. Pluger saw Dr. James Sargent, Richards' partner, on his first follow-up visit. Pluger complained of pain in his thigh. Pain is a common sign of infection. However, X-rays showed that Pluger's fracture had compressed somewhat, a finding Sargent felt explained Pluger's pain. Pluger showed none of the normal signs of infection such as swelling, redness, tenderness, heat or induration around the wound. However, prior radiation treatment suppresses these signs of infection.
Pluger's next medical visit occurred a few weeks later with Richards. Pluger complained of increasing pain. Richards did not order any testing for infection. He noted that the rod had moved since the surgery. Although migration of the rod is a sign of infection, it could also be caused by compression of the bone. Richards also concluded the pain was due to migration of the rod and told Pluger to come back in a month.
Pluger's pain worsened before his scheduled follow-up visit with Richards, so he contacted Hackbarth, who asked Pluger to see him in Milwaukee. Hackbarth performed exploratory surgery and noted massive infection at the fracture site. Hackbarth determined the infection had progressed to the point that Pluger's leg needed to be amputated.
Pluger brought this action alleging medical malpractice and that Richards did not obtain his informed consent when he performed the surgery. A jury found that Richards was not negligent in his care and treatment of Pluger and that Richards did obtain Pluger's informed consent. The trial court denied various motions to set aside the verdict.
The concept that a physician obtain an informed consent from a patient "is based on the tenet that in order to make a rational and informed decision about undertaking a particular treatment or undergoing a particular surgical procedure, a patient has the right to know about significant potential risks involved in the proposed treatment or surgery." Johnson v. Kokemoor, No. 93-3099, slip op. at 13 (Wis. Mar. 20, 1996). Id. at 12 n. 16. "What constitutes informed consent in a given case emanates from what a reasonable person in the patient's position would want to know" and is described as the prudent patient standard. Id. at 15. To recover damages under the doctrine of informed consent, a plaintiff must show: (1) The physician had a duty to inform under § 448.30, Stats. 1 , and (2) a reasonable person in the plaintiff's position would have refused to consent to surgery by the defendant if he would have been fully informed of its attendant risks and advantages. See id. at 2.
In Martin v. Richards, 192 Wis.2d 156, 175, 531 N.W.2d 70, 78 (1995), our supreme court interpreted the duty imposed by the statute: "the extent of the physician's disclosures is driven ... by what a reasonable person under the circumstances then existing would want to know, i.e., what is reasonably necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis." The application of a statute to a given set of facts is a question of law we review de novo. See Fire Ins. Exchange v. Basten, 195 Wis.2d 260, 264, 536 N.W.2d 150, 151-52 (Ct.App.1995). However, we sustain a jury's factual findings if there is credible evidence to support the findings. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984).
When the verdict has the trial court's approval, this is even more true. The credibility of the witnesses and the weight afforded their individual testimony is left to the province of the jury. Where more than one reasonable inference may be drawn from the evidence adduced at trial, this court must accept the inference that was drawn by the jury.... This court is not to search the record on appeal for evidence to sustain a verdict that the jury could have reached, but did not.
Id. at 305-06, 347 N.W.2d at 598 (citations omitted). Therefore, while we review whether § 448.30, Stats., was properly applied to the facts de novo, we accept the jury's findings of the facts unless there is no credible evidence to support the findings.
First, Pluger argues that Richards was required to inform him about his high risk of infection and consequent risk of amputation due to his irradiated leg. A physician must warn the patient of the risks associated with the patient's condition...
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