HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, June 6, 2012

Guest Blogger Professor Thaddeus Pope: Wisconsin’s Informed Consent Law: Restatement or Expansion?

Pope pic 2Michigan is considering a medical malpractice reform bill that would make healthcare providers not liable in an action alleging medical malpractice, so long as the provider’s conduct at issue constituted the exercise of professional judgment.  The bill defines “professional judgment” as acting “with a reasonable and good-faith belief that the person's conduct is both well founded in medicine and in the best interests of the patient.”  This is a rather sweeping and dramatic change to traditional medical malpractice liability. If enacted, this law would basically require plaintiffs to establish some level of intent or willfulness on the part of the clinician defendant.  

But even under such a protective law, a Wisconsin physician might still be liable for providing inadequate informed consent.  In late April, the Wisconsin Supreme Court handed down a nearly 80-page opinion in Jandre v. Wisconsin Injured Patients and Families Compensation Fund. 

In 2003, Thomas Jandre was taken to an emergency room suffering from slurred speech, facial paralysis, and dizziness.  The ER physician administered a CT scan to check for hemorrhagic stroke.  The results were negative.  She did not order carotid ultrasound to detect an ischemic stroke, but instead listened to Jandre’s carotid arteries with a stethoscope. The ER physician ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell’s palsy. Eleven days later, Jandre suffered a major stroke which left him severely impaired. 

At trial, the jury found that although the ER physician’s diagnosis of Bell’s palsy was incorrect, it was not negligent.  But the jury also determined that the ER physician should have disclosed the option of having a carotid ultrasound test.  It awarded Jandre $2 million in damages.  The Wisconsin Supreme Court upheld this award.  

The defendants and their amici argued that upholding the verdict would impose a ridiculously broad duty on physicians. Any malpractice claim of incorrect diagnosis could be paired with an informed consent claim that the physician failed to tell the patient about all potential diagnoses and tests that could have been employed to evaluate whether different ailments were the source of the patient’s symptoms.  Furthermore, defendants and their amici contended that it makes no sense to hold a physician liable for not disclosing an option that it was not negligent to fail to offer.  This effectively gives patients a choice to usurp professional judgment.  

But, at least in the twenty-some states that use a material risk disclosure standard, this has always been precisely the main point of informed consent.  The ER physician should have known that a reasonable person in the Jandre’s position would want to know about the non-recommended diagnostic procedure, so that he could decide intelligently whether to follow the physician’s recommendation.

- Thaddeus Pope

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