June 4, 2025 – A 5-2 majority of the Wisconsin Supreme Court decided Friday in Hubbard v. Neuman, 2025 WI 15, that a patient’s informed consent complaint against her doctor could proceed even though the doctor didn’t participate in the surgery that resulted in the patient'​s ovaries being removed.

“Taking [Melissa] Hubbard’s allegations as true and drawing all reasonable inferences from a required liberal construction of those allegations, we determine Dr. Neuman failed to show that under no circumstances can Hubbard recover,” wrote Chief Justice Ann Walsh Bradley for the majority.

Justices Rebecca Frank Dallet, Brian Hagedorn, Jill J. Karofsky, and Janet C. Protasiewicz joined the majority opinion.

The majority came to this result, it noted, by applying “time-honored principles.”

The dissent, written by Justice Annette Kingsland Ziegler and joined by Justice Rebecca Grassl Bradley, claimed the majority “fails to follow this court’s tried-and-true method for reviewing motions to dismiss” because “[t]he court … never addresses what the substantive law requires Hubbard to prove.”

Surgery

The majority made clear in stating the facts that its duty on review for a motion to dismiss for failure to state a claim required assuming as true the facts in Hubbard’s complaint.

In addressing reproductive health issues, Hubbard went to Neuman, a licensed obstetrician and gynecologist. Neuman diagnosed Hubbard with severe endometriosis. She advised her patient to consider removal of a fallopian tube and ovary.

Hubbard did not consent. She said she’d think about it.

Neuman referred Hubbard to her colleague, Dr. Michael McGauley, for colon surgery, presumably to address endometriosis. Hubbard consented to McGauley operating on her colon.

Hubbard alleges that Neuman and McGauley “engaged in pre-surgery discussions and planning” that did not include Hubbard. These plans varied.

One alleged description intended that during surgery, Neuman would remove fallopian tubes, ovaries, and uterus while McGauley operated on the colon. Another “recommended that McGauley remove the ovaries.”

In any event, Neuman didn’t attend the surgery, which McGauley did himself, including his removing the ovaries.

Hubbard alleged she had no knowledge that the colon surgery also included removal of her ovaries. If Hubbard had known, she claims “she would have immediately canceled the surgery.”

Through the Courts

Hubbard initially sued McGauley. The Rock County Circuit Court dismissed the case and denied her motion to reconsider. The court of appeals affirmed the circuit court in a per curiam summary disposition.

Hubbard filed a medical negligence action in Rock County Circuit Court against Neuman as “her treating physician,” alleging she breached her duty of care by not telling Hubbard about the pre-surgery recommendations.

The lawsuit “does not specifically identify the informed consent statute,” Wis. Stat. section 448.30, but the claim is sufficiently clear, the majority noted. Both parties and courts at all levels treated the case as involving informed consent.

Neuman defended herself by saying “she was not a ‘physician who treat[ed]’ Hubbard” under the statute because she didn’t surgically remove the ovaries.

The circuit court denied Neuman’s motion to dismiss for failure to state a claim, and the court of appeals on interlocutory appeal affirmed.

Informed Consent

The informed consent statute with which the majority began its decision provides that “[a]ny physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments” based on the “reasonable physician standard.”

The majority summarizes Neuman’s argument as “a blanket rule that, under all circumstances, a physician who does not actually perform the treatment at issue can never be a ‘physician who treats a patient.’”

The majority disagreed. “The essence of the inquiry is whether Hubbard’s complaint sufficiently alleges that Dr. Neuman was a ‘physician who treat[ed]’ Hubbard, even though she did not actually remove Hubbard’s ovaries herself.”

In the “fact-driven and context specific” informed consent analysis, the majority noted that Neuman was Hubbard’s treating physician through the period that includes the surgery. Hubbard describes Neuman’s “intimate involvement with the removal of Hubbard’s ovaries.”

Neuman recommended her colleague for the surgery, the majority noted. “[A]fter Hubbard agreed to undergo colon surgery, Dr. Neuman allegedly helped plan the surgery with Dr. McGauley.”

The majority described these facts as a “level of involvement [that] could make Dr. Neuman a ‘physician who treat[ed]’ Hubbard, even though she did not actually remove Hubbard’s ovaries herself.”

That was enough for the majority to conclude that Hubbard’s case survives the motion to dismiss. The case goes back to the circuit court.

The majority, however, narrowed the court of appeals’ interpretation of the statute. The court of appeals held that the duty to inform “applies to any physician who treats a patient, regardless of whether that physician actually performs the disclosed treatment options, and the risks and benefits of each.”

Such a broad sweep, not necessary to decide the issue before the court, stands at odds with “the often complex nature of informed consent cases generally” the majority stated.

Dissent’s Statutory Analysis

The dissent made clear from the beginning that it found Hubbard’s claim failed.

“To be a treating physician under § 448.30, the physician needs to either provide the treatment at issue himself or formally order the treatment at issue. This follows from the text of the statute, its history, and the decisions of courts across the country that have addressed who qualifies as a treating physician.”

The dissent diagnosed the majority’s error. The court’s duty is first to see “what the substantive law requires a plaintiff to prove to make a valid claim.” Only after that step “does the court review the complaint to determine whether it survives the motion to dismiss.”

“We expect physicians to consult with each other, asking for the opinions and advice of their professional colleagues,” the dissent explained. Extending informed consent liability would chill those valuable conversations.

The informed consent statute comes from underlying tort law for battery – looking to the doctor who acted, the dissent detailed.

In its review of the allegations, the dissent explained that although Neuman “engaged in pre-surgery planning and discussions,” she didn’t perform the surgery, didn’t order it, or even retain “sufficient control over the surgery.”

“Hubbard does, however, argue that Dr. Neuman formally prescribed or ordered the surgery,” but that’s equating a “recommendation” to an order, the dissent said.

“Readers will search in vain for the court’s explanation of who qualifies as a treating physician for purposes of the informed consent statute,” the dissent concluded. “All a reader will know by the time he reaches the end of the opinion is that Dr. Neuman in particular might be a treating physician.”