In April 2012, the Wisconsin Supreme Court dealt a significant blow to the medical community when it handed down its decision in Jandre v. Wisconsin Injured Patients and Families Compensation Fund, 2012 WI 39.  The issue before the Supreme Court was whether a physician, who had been found not negligent in the treatment of the patient, Jandre, could be found negligent for failing to inform Jandre of the availability of alternative, viable means of determining whether he had suffered from a different condition than what the physician had diagnosed.  The three justice majority applied a “reasonable patient standard” and found that the physician could be held liable for the failure to inform.

As discussed in the dissenting opinion, the application of the “reasonable patient standard” greatly expanded physician liability by creating a more or less strict liability standard for physicians in missed diagnosis cases.  In order to protect themselves from liability following Jandre, physicians would be required to order tests for conditions they did not believe the patient had, so that they could properly explain non-recommended procedures for such non-existent conditions.  This requirement would have the obvious consequence of substantially increasing the costs of healthcare and substantially decreasing healthcare efficiency.

Shortly after the decision in Jandre, healthcare providers, healthcare organizations, and the legislature took action to correct this obvious defect in the interpretation of Wis. Stat. § 448.30 via Assembly Bill 139, which was first introduced on April 5, 2013.  On April 11, 2013, the Assembly Judiciary Committee and the Senate Judiciary Committee and Labor Committee held public hearings on the proposed bill.  The proposed bill passed the Assembly on May 8, 2013 by a 65-31 vote, and went on to pass the Senate, with few amendments, on October 15, the Assembly on November 5, and was signed into law on December 13, 2013.  The revision to Wis. Stat. § 448.30 applies to causes of action that accrue on or after December 15, 2013.

Changes to Wis. Stat. § 448.30

Assembly Bill 139 revised Wis. Stat. § 448.30 in four ways.

For starters, the introductory language was improved in three important ways.  First, the statute was revised to require a physician to inform a patient about the “availability of reasonable alternate medical modes of treatment” as opposed to “all alternate, viable medical modes of treatment,” which was the requirement under the old statute.  Second, the statute was revised to clarify that informed consent is to be viewed from the standpoint of a “reasonable physician” as opposed to a “reasonable patient.”  Finally, under the revision to Wis. Stat. § 448.30, 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 second change to Wis. Stat. § 448.30 was an additional exclusion to the physician's duty to inform.  The new exclusion was a direct response to the Jandre holding, and excludes from the physician's duty to inform, “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.”

Third, subsection (1) was removed from the statute.  Subsection (1) had excluded from a physician's duty to inform, “information beyond what a reasonably well-qualified physician in a similar medical classification would know.”

Finally, the title of the statute was changed from “Information on alternate modes of treatment” to “Informed consent.”

Effects of the changes to Wis. Stat. § 448.30

The effects of the revisions to Wis. Stat. § 448.30 are significant.  First, plaintiffs claiming a lack of informed consent must now prove that the physician failed to meet the “professional standard of care.”  The practical consequence of this burden of proof is that plaintiffs will now be required to elicit expert testimony to determine whether the physician acted as a reasonable physician with the same or similar medical specialty working under the same or similar circumstances would have.

Second, physicians no longer have to practice “defensive medicine.”  Physicians no longer have to request tests for non-existent conditions and explain non-recommended procedures for such non-existent conditions.  The practical consequence of not requiring doctors to practice defense medicine is that healthcare can be administered more efficiently and cost effectively.

Conclusion

It is likely that informed consent will continue to be pled in most, if not all, medical malpractice claims.  However, the revisions to Wis. Stat. § 448.30 allow physicians to more adequately defend themselves from these claims.

If you would like more information regarding informed consent in medical malpractice claims, please contact us at (608) 662-1180.

This news update is designed to provide general, educational information on pertinent legal topics, and the statements therein do not constitute legal advice. This news update is not intended to create an attorney-client relationship between you and Corneille Law Group, LLC. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.