Informed Consent Bill Clears Final Legislative Hurdle

November 7, 2013

Update: This Bill was signed into law Friday, December 13.

On November 5, AB 139, the Bill that brings significant changes to Wisconsin’s law of informed consent for doctors, cleared its final legislative hurdle. The Bill initially passed the Assembly months ago, and underwent revisions by the Senate. The Assembly conferred in the Senate’s amendment, effectively moving the Bill to Governor’s Walker’s desk for signature.

The Bill makes several changes to Wisconsin’s informed consent statute, section 448.30.  That statute governs what information must be disclosed to patients by their physicians in order for the physician to obtain consent to provide treatment and also provides for several exceptions to that duty of disclosure. The Bill effectuates changes to both the duty to disclose and to the list of exceptions to disclosure.

As to the duty to disclose, the law still requires physicians to inform their patients about the availability of all alternate viable modes of treatment and the risks and benefits of those different alternatives. The change is that physicians’ duty will now be measured against what other reasonable physicians facing the same circumstances would disclose to the patient. Under the old law, physicians were required to disclose any information a reasonable patient would consider important. When the law takes effect, physicians will no longer be required to anticipate what a patient may want to know about and can instead rely on their experience and training, as well as the customs of their profession, to provide standardized information.

The second major change in the law appears as the addition of a new exception to the duty to disclose. This change was brought about as a result of the Supreme Court decision in Jandre v. Physicians Insurance Co., 2012 WI 39.  In that case, a physician reached a diagnosis that the jury concluded was reasonable. The jury then, however, found that she had violated the informed consent statute by not discussing treatment and diagnostic options relevant to a completely unrelated diagnosis.

The case was decided over dissent and ultimately by one Justice who felt compelled to concur in upholding the jury’s verdict given the state of the law, while recognizing the near impossible burden the holding placed on physicians to second guess themselves. Id. at ¶¶ 251-61. (Prosser, J. concurring.) That Justice recommended a blue ribbon panel be convened to assist the Legislature in forming a remedy. This occurred and AB 139 was a result of that group’s efforts.

The exception thus created relieves physicians of the duty to disclose information not related to their final diagnoses. This saves physicians from having to present a near endless amount of information related to conditions they do not believe the patients has, while preserving a liability claim for patients against the physician if the diagnosis given is incorrect.

As of this writing, no date has been set for the Bill’s signing.

Guy DuBeau is chair of the Firm’s Litigation Practice Group and specializes in medical malpractice and other health care related issues. He wrote the amicus brief on behalf of the Wisconsin Medical Society, Wisconsin Hospital Association and Wisconsin Chapter of the American College of Emergency Physicians quoted in the Jandre decision. He was also a member of the “blue ribbon panel” convened to discuss amendments to Section 448.30.

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