Sept. 27, 2023 – The Wisconsin Court of Appeals has ruled on public policy grounds that a hospital cannot be liable for a nurse’s alleged administration of medication to a patient before the patient gave informed consent.
In Wetterling v. Southard, 2021 AP1694 (Sept. 12, 2023), the Court of Appeals District II held that because state law places the duty to obtain informed consent on the treating physician, any neglect on the nurse’s part was too remote from the plaintiff’s injuries.
Dispute Over Informed Consent
In 2016, Renae Wetterling underwent a biopsy of her left lung at Sacred Heart Hospital in Eau Claire. She was accompanied by her mother Sharon.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
On the day of the biopsy, Michael LuCore, a nurse, administered valium and hydrocodone to Wetterling at 8:53 am.
At some point prior to performing the biopsy, Dr. Mark Southard came into the room and talked with Wetterling, Sharon, and LuCore.
The parties disputed whether Southard came into the room before or after he authorized administration of the drugs to Wetterling.
LuCore said he remembered Southard discussing the risks of the procedure with Wetterling before 9:10 a.m.
LuCore said that, typically, he would tell Southard he’d administered the medication to a patient when Southard came into the room.
However, he couldn’t remember whether he’d told Southard that he’d administered the medication to Wetterling.
LuCore said that he thought that Wetterling was “very alert” during her conversation with Southard. But Sharon said that her daughter “was a little dopey in her speech and her relaxation” five or ten minutes after taking the medication.
Sharon also said Southard never discussed the risk of the biopsy with Wetterling.
Wetterling couldn’t remember whether Southard spoke to her before LuCore administered the medicine. She also couldn’t remember whether Southard had discussed with her the risks of the biopsy.
Sharon signed the informed consent form instead of Wetterling; Southard and LuCore also signed the form. All three wrote that they had signed at 9:10 a.m.
LuCore later said he asked Sharon to sign the form because Wetterling may have been under the influence of the medicine.
After the biopsy, Wetterling said she had chest pain but, the hospital discharged her.
Wetterling later returned to the hospital by ambulance, and Dr. Richard Daniels removed her spleen. Sharon said that Daniels told her that Wetterling’s spleen had been punctured.
Wetterling sued Southard and Sacred Heart for negligence in Rusk County Circuit Court. She alleged that Southard punctured her spleen during the biopsy; she also alleged that Sacred Heart was liable under respondeat superior.
In an amended complaint, Wetterling alleged that Southard and Scared Heart were negligent in failing to obtain her informed consent.
The circuit court granted summary judgment for Sacred Heart. Wetterling appealed.
Hospital Cannot be Liable
Writing for a three-judge majority, Judge Thomas Hruz began by explaining that, under Wis. Stat. section 448.30, the duty to explain a procedure’s risk and obtain informed consent falls on the treating physician, not the hospital.
But Wetterling argued that LuCore had an ordinary duty of care which he breached by: 1) giving Wetterling the medication before Southard had obtained her consent; and 2) not telling Southard that he’d given Wetterling the medication before the informed consent discussion had occurred.
Hruz concluded that even if LuCore had a duty and breached it, Sacred Heart could not be held liable.
Judge Hruz pointed out that while the legislature has enacted informed consent statutes for podiatrists, physician assistants, and chiropractors, it has not created a duty or other source of liability for other categories of professionals who interact with patients.
Hruz also reasoned that the inherent responsibilities a physician has under the informed consent statute puts the physician in the best position to determine whether a patient has the capacity to give informed consent.
“Therefore, even if LuCore did not inform Dr. Southard that Wetterling had received analgesic medication, such an omission did not prevent or inhibit Southard’s ability to determine whether Wetterling had the mental capacity to provide her informed consent,” Judge Hruz wrote.
Car Crash Analogy
Wetterling argued that by giving Wetterling the medication before she’d given her informed consent, LuCore had behaved the same as an automobile passenger who grabbed the steering wheel and caused a crash.
But that analogy was inapt, Hruz reasoned, because LuCore hadn’t prevented Southard from obtaining Wetterling’s consent. Moreover, Hruz pointed out, Southard had the opportunity to correct any mistake of LuCore’s.
“Southard had the opportunity to ask LuCore or Wetterling whether Wetterling had taken any medication,” Hruz wrote. “He also had the opportunity to independently evaluate Wetterling for any signs of impairment.”
Public Policy Governs
Sacred Heart argued that Southard’s duty and opportunity to gauge Wetterling’s capacity to provide informed consent was a superseding cause of Wetterling’s injuries.
But Judge Hruz explained that Wisconsin courts have replaced the superseding cause doctrine with a public policy analysis that holds there is no liability, on public policy grounds, where the injury is too remote from the negligence.
Judge Hruz concluded that any negligence on LuCore’s part was too remote from Wetterling injuries, given that section 448.30 makes the treating physician alone responsible for obtaining a patient’s informed consent.
“The remoteness is largely in a legal sense, tied to the statutory policy reflected in section 448.30, rather than in a strict temporal sense,” Hruz wrote.
“Furthermore, Wetterling does not contend that LuCore’s administration of the analgesic medication was somehow negligent on its own or caused her injury beyond the potential impact on her ability to provide informed consent.”