May 15, 2013 – Under a proposed bill pending in the Wisconsin Legislature, courts would use a different standard to determine whether a doctor adequately advised a patient about alternative treatment options, while giving doctors more protection from liability.

The bill responds to a case in which a jury found a physician medically negligent for failing to inform a patient about an alternative diagnostic test, even though the doctor was not negligent in ruling out the condition the test was meant to detect.

The bill, AB 139, amends Wisconsin’s informed consent law, Wis. Stat. section 448.30, which requires physicians to inform patients “about the availability of all alternate, viable medical modes of treatment” and associated risks and benefits.

The bill passed the Assembly Committee on the Judiciary on April 25, 2013. An amendment that would have deleted a provision exempting physicians from disclosing to patients information about alternative medical modes of treatment for conditions that the physician does not believe the patient has at the time the physician informs the patient did not pass the Assembly Judiciary Committee. As a result, that proposed exemption remained in AB 139 when the full Assembly took up the bill for a vote on Wednesday, May 8, 2013.

The full Wisconsin State Assembly passed AB 139 on May 8, 2013. The bill now goes to the Senate for consideration.

Currently, courts use a “reasonable patient standard” to determine whether a doctor was negligent in giving information. Under that standard, courts ask what a reasonable person in the patient’s position would want to know to make an informed decision.

AB 139 replaces the reasonable patient standard with “reasonable physician standard,” requiring doctors to disclose “only information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances.”

In addition, as noted above, it exempts doctors from liability for failure to inform patients “about alternative medical modes of treatment for conditions that the physician does not believe the patient has at the time the physician informs the patient.”

Rep. Jim Ott (R-Mequon), who drafted AB 139, told the Assembly’s Judiciary Committee that failing to pass the bill would promote “defensive medicine,” where doctors perform unnecessary and costly tests to shield themselves from lawsuits.

But attorney Robert Jaskulski, former president of the Wisconsin Association for Justice, told the committee that AB 139 is a “dangerous step back from patient safety.”

Jandre Decision Upholds Reasonable Patient Standard

In 2003, Thomas Jandre visited the emergency room with stroke-like symptoms, including slurred speech. The doctor, Therese Bullis, diagnosed Jandre with Bell’s palsy, a nonlife-threatening condition that does not carry increased risk of stroke.

In reaching the diagnosis, Dr. Bullis ordered a CT scan to rule out hemorrhagic stroke, caused by bleeding in the brain. She also ruled out small-scale types of ischemic stroke, which are caused by blockage in the carotid artery of the neck.

However, Dr. Bullis did not inform Jandre of a noninvasive ultrasound specifically designed to detect blockage in the carotid artery. She ruled out ischemic diagnosis by performing physical tests. Eleven days later, Jandre had a massive ischemic stroke.

A jury found that Bullis was not negligent in diagnosing Jandre with Bell’s palsy, because she used reasonable care, skill, and judgment in reaching that diagnosis.

However, the jury found that Bullis was negligent for failing to inform Jandre about the carotid ultrasound, which may have detected the condition that caused his ischemic stroke. Two doctors testified that they would have informed Jandre about the test.

The court of appeals upheld the jury’s verdict and $2 million award, concluding that Dr. Bullis should have informed Jandre about the carotid ultrasound test. The appeals court employed the reasonable patient standard in upholding the circuit court judgment.

In Jandre v. Physicians Insurance Co. of Wisconsin, 2012 WI 39 (April 17, 2012), a Wisconsin Supreme Court majority (4-3) affirmed, upholding the “reasonable patient standard” that Wisconsin courts use to decide informed consent cases.

Under that standard, doctors must disclose “information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis,” Chief Justice Abrahamson wrote in a 75-page lead opinion.

Justice Prosser affirmed the appeals court decision, breaking a 3-3 court split. He noted that a reversal was “not warranted by the facts of the case.” But he also voiced concern.

“These concerns are that the law of informed consent is being expanded beyond its original scope and purpose, with profound consequences for the practice of medicine,” Justice Prosser wrote while refusing to join the lead opinion’s reasoning in the case.

The dissenting justices, led by Justice Roggensack, ruled that Wisconsin’s informed consent law did not apply at all, because a doctor is not required to inform patients about “all treatments and procedures that were not recommended by the physician.”

Legislators Introduce Bill

Rep. Jim Ott said that failing to pass AB 139 may induce more doctors to perform unnecessary and costly tests for the sole purpose of “protecting their backsides.”

“My concern, and the concern of many people in the medical field, is that these court decisions are expanding the amount of information that doctors are required to give to the fringes of what is pertinent,” Ott told the Assembly’s Judiciary Committee in April.

“I don’t believe that passing this bill is necessarily going to result in fewer malpractice claims,” Ott told the committee. “I do believe that if we don’t pass this bill, we are going to see an increase in defensive medicine.”

He noted that in Jandre, two doctors testified that they would have informed Jandre about the test, so the reasonable physician standard wouldn’t have changed the result.

But Jaskulski, a personal injury lawyer, said the changes proposed by AB 139 would have prohibited the informed consent question from reaching the Jandre jury at all.

He noted that under proposed AB 139, doctors are not liable for failing to inform patients “about alternative medical modes of treatment for conditions that the physician does not believe the patient has at the time the physician informs the patient.”

Jaskulski said Jandre’s doctor incorrectly believed he had Bell’s palsy, and the jury found that she was not negligent in reaching that conclusion. Under AB 139, Jandre’s doctor would be shielded from informed consent liability, Jaskulski says.

“If the physician reaches an appropriate diagnosis, [the jury] would never hear testimony that the physician should have advised Mr. Jandre of potential alternative modes of treatment, because they aren’t treatment for that diagnosis,” Jaskulski said.

“The doctor would have no duty under these circumstances to advise Mr. Jandre that he might be having a stroke and that this stroke could be resolved by a simple and inexpensive test,” he said. “This is a huge step back with regard to patient safety.”

Numerous health care providers and organizations, including the Wisconsin Medical Society and the Wisconsin Hospital Association, support the bill. The Wisconsin Association for Justice and Citizen Action of Wisconsin oppose it.