Medical Malpractice: Whose Responsibility Is It, Anyway?

In Wisconsin, medical malpractice cases are based on two distinct theories of liability: negligence and lack of informed consent. Negligence is a product of the common law and is generally thought of as a provider’s failure to meet an accepted standard of care. Informed consent cases are creatures of statute, specifically Wis. Stat. § 448.30, and are based on a physician’s failure to provide sufficient information for a patient to choose among various reasonable diagnostic and treatment options.

The Wisconsin legislature recently enacted changes to Wis. Stat. § 448.30. The changes were a reaction to a recent Supreme Court decision, Jandre v. Bullis¹, and more specifically to comments made by Justice Prosser in his concurrence to the decision. After explaining the history of the statute, how the law had come to be interpreted, and his own frustration that those interpretations compelled his concurrence in the mandate despite the impracticality of what was being required of physicians, he wrote:

Nearly three decades have passed since the adoption of Wis. Stat. §448.30 and the rules implementing the statute. Much has changed in the intervening years. Perhaps the time has come for a thorough review of the rules by a blue ribbon committee, including but not limited to medical professionals, so the physicians are given clear guidance as to their obligations under the statute.²

Such a panel, comprised of industry representatives and attorneys knowledgeable in the area, was convened. The panel presented recommendations and after due review and amendment by the legislature, AB 139 was enacted and signed into law on December 13, 2013. The statute now reads as follows:

448.30 Informed consent. Any 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. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician’s duty to inform the patient under this section does not require disclosure of:

(2) Detailed technical information that in all probability a patient would not understand.

(3) Risks apparent or known to the patient.

(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.

(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.

(6) Information in cases where the patient is incapable of consenting.

(7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient

These changes will potentially have far reaching effects on the law of informed consent. It is important for practitioners to understand the these impacts as the law develops in light of this statute change.

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