April 19, 2012 – Can a jury decide that a medical doctor was not negligent in diagnosing a patient’s condition, but also conclude the doctor breached a duty to in​formthe patient about diagnostic tests that relate only to medical conditions the physician ruled out? Recently, a Wisconsin Supreme Court majority said yes.

In Jandre v. Physicians Insurance Company of Wisconsin, 2012 WI 39 (April 17, 2012), a 4-3 majority affirmed an appeals court ruling in favor of a plaintiff-patient, Thomas Jandre, who suffered a massive stroke 11 days after an emergency room visit for stroke-like symptoms.

The emergency room doctor, Dr. Therese Bullis, diagnosed Jandre with Bell’s palsy, a non-life threatening condition that does not carry an increased risk of stroke.

A jury found that Bullis wasn’t negligent in reaching the final diagnosis of Bell’s palsy, even though the diagnosis was ultimately wrong. That is, the jury found that Bullis used reasonable, care, skill, and judgment in her method of diagnosing Jandre’s condition.

But the same jury awarded Jandre almost $2 million because Bullis did not inform him about a diagnostic test that would have signaled the imminence of more severe problems.

Specifically, Bullis did a physical exam to rule out “ischemic stroke” – a condition caused by blockage in the carotid artery of the neck – but did not perform a carotid ultrasound.

More importantly for the case, Bullis did not inform Jandre that the carotid ultrasound, a noninvasive procedure, was available to rule out the possibility of ischemic stroke.

Bullis used a CT scan to rule out “hemorrhagic stroke,” which can occur when there is bleeding in the brain. But CT scans can't detect ischemic stroke.

The ultrasound would have revealed that Jandre had a 95 percent blockage in a carotid artery in his neck, meaning the massive stroke Jandre later suffered might have been prevented.

Bullis, her medical malpractice insurer and the Wisconsin Injured Patients and Families Compensation Fund appealed the judgment on the verdict.

Appeals court affirmed

The defendant-appellant argued that, as a matter of law, Wisconsin’s informed consent law, Wis. Stat. section 448.30, doesn’t hold doctors liable for failing to inform patients about alternative “diagnostic” testing where the doctor isn’t negligent in reaching a final diagnosis.

In other words, the defendant-appellants argued that doctors must only inform patients about available procedures related to treating the final, non-negligently diagnosed condition.

However, a state appeals court relied on prior case law to determine that doctors must inform patients about alternative tests during the “diagnostic” testing stage, if a reasonable person in the patient’s shoes would want to know the information in choosing a course of action.

Thus, the court of appeals upheld the jury’s verdict in Jandre v. Physicians Insurance Co. of Wisconsin, 2010 WI APP 136 (Sept. 28, 2010). The jury had found that a reasonable patient in Jandre’s shoes would have wanted to know about the carotid ultrasound.

“We are not holding that Dr. Bullis had to provide information about any possible condition or that she had to provide information about conditions Jandre might suffer at some point in the future,” wrote District I appeals court Judge Kitty Brennan.

“Rather, we conclude that Dr. Bullis was required to inform Jandre about a test to rule out a condition she thought he was possibly suffering from, and which she did not rule out.”

On appeal to the Wisconsin Supreme Court in Jandre, a majority (4-3) affirmed the appeals court decision. But the justices disagreed on the future scope of informed consent law.

Chief Justice Shirley Abrahamson wrote a 75-page lead opinion (joined by Justices Ann Walsh Bradley and Patrick Crooks) in favor of Jandre. Justice Patience Roggensack wrote a dissenting opinion (joined by Justices Annette Ziegler and Michael Gableman).

Justice David Prosser affirmed the appeals court decision, breaking a 3-3 split, noting that a reversal would require the court to “change the law,” and such action was “not warranted by the facts of the case.” But Justice Prosser, in a concurring opinion, 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,” wrote Justice Prosser, who refused to join the lead opinion other than affirming the appeals court.

Informed consent statute

Wis. Stat. section 448.30 requires any physician who treats a patient to “inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.” However, there are six limitations.

A physician’s duty to inform does not require disclosure of:

• Information beyond what a reasonably well-qualified physician in a similar medical classification would know;

• Detailed technical information that in all probability a patient would not understand;

• Risks apparent or known to the patient;

• Extremely remote possibilities that might falsely or detrimentally alarm the patient;

• Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment;

• Information in cases where the patient is incapable of consenting.

On appeal to the Wisconsin Supreme Court, Physician’s Insurance Company of Wisconsin (PIC) asked the court to adopt a bright-line rule that physicians don’t have a duty to inform patients of alternative tests for conditions that are unrelated to the final diagnosis.

PIC argued that the court of appeals decision “imposes a dramatically increased burden on Wisconsin health care providers which appears to be more onerous than the informed-consent duty imposed in any other jurisdiction in the country.”

PIC also argued that prior case law contravenes that plain language of the statute, because the statute does not say doctors must inform patients on viable modes of “diagnosis.” It only requires them to inform patients on viable and alternative modes of “treatment.”

Differing opinions 

In a lead opinion, Chief Justice Shirley Abrahamson (joined by Justices Bradley and Crooks), refused to adopt the bright-line rule requested by PIC, concluding that precedent (stare decisis) on the “reasonable patient standard” governed the case.

Under the reasonable patient standard, doctors must disclose “information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis,” the chief justice explained.

Justice Prosser suggested that there may be situations in which the “reasonable patient standard” is not appropriate, and policymakers should revisit the issue.

“Inasmuch as the court has determined that ‘treatment’ includes diagnosis, it becomes imperative for policy makers to fashion reasonable limits to that term and to the duty imposed by statute upon Wisconsin's physicians,” he wrote.

In her dissenting opinion, Justice Roggensack (joined by Justices Gableman and Ziegler) concluded that Wisconsin’s informed consent law did not apply at all.

“I conclude that Wis. Stat. § 448.30 is not implicated in this malpractice action because there was no failure to inform the patient about the risks and benefits of the treatment and procedures that the physician employed,” she wrote.

The lead opinion “would have imposed strict liability for missed diagnoses by expanding a patient’s right of informed consent under § 448.30,” wrote Justice Roggensack, noting that Justice Prosser did not concur with the lead opinion’s reasoning.

Attorneys

• D. James Weis, Linda Meagher, and James Fergal of Habush & Rottier S.C., Waukesha, represented plaintiff-respondents Thomas and Barbara Jandre.

• Michael Van Sicklen and Krista Sterken of Foley & Lardner LLP, Madison, represented Physicians Insurance Company of Wisconsin.

• Guy DuBeau of Axley Brynelson LLP, Madison, filed an amicus curiae brief on behalf of the Wisconsin Medical Society Inc., the Wisconsin Hospital Association, and the Wisconsin Chapter of the American College of Emergency Physicians, Inc.

• Lynn Laufenberg of Laufenberg, Stombaugh & Jassak S.C., Milwaukee, and William Gleisner III, Hartland, filed an amicus brief on behalf of the Wisconsin Association for Justice.

• William Bauer and Karen Gallagher of Coyne, Schultz, Becker & Bauer S.C., Madison, filed an amicus brief on behalf of Dean Health System Inc., Marshfield Clinic and Gunderson Lutheran Health System Inc.

Related article

Appeals court clarifies physician’s informed consent obligation in medical negligence case – WisBar News, Sept. 28, 2010