July 24, 2009 – The Wisconsin Supreme Court ruled today that a stroke patient can proceed with a claim alleging that his doctor failed to inform him of alternative treatments that might have prevented his brain injury.

In Bubb v. Brusky, 2009 WI 91, the justices affirmed that Wis. Stat. § 448.30 imposes a duty on doctors to inform their patients about the availability of all alternate, viable medical modes of treatment, including diagnoses, as well as the benefits and risks of such treatment.

After reviewing the evidence presented at trial, the justices agreed that the circuit court erred when it prevented the jury from considering whether this duty was breached.

Early sign of stroke

Richard Bubb was taken to the hospital after he collapsed during dinner. Dr. William Brusky examined Bubb at the emergency room, reviewed his symptoms, and ordered various tests. Bubb’s symptoms began to diminish while he was at the hospital and he wanted to go home.

Based on the tests and the receding symptoms, Brusky concluded Bubb had experienced a transient ischemic attack (TIA).  The primary cause of a TIA is atherosclerotic disease, a buildup of cholesterol plaque that is often called hardening of the arteries, which can diminish the heart's capacity to provide blood to the brain.

After consulting with Dr. Xian Feng Gu, a neurologist, it was agreed Bubb would see Gu for a follow up. However, before the follow-up appointment, Bubb suffered a stroke. The doctors discovered that Bubb’s right carotid artery showed a 90 percent blockage.

Bubb filed suit, claiming that the negligence of Brusky and Gu left him with no use in his left arm and unable to walk without a cane. The jury determined neither doctor was negligent, but Bubb argued that the trial court had improperly dismissed the informed-consent claim. Bubb moved for a new trial, which the circuit court denied. The court of appeals affirmed.

Duty to inform

In a majority opinion authored by Justice David Prosser, the court reversed the lower courts. The court clarified that the issue is whether Bubb was adequately informed of his treatment options, not whether the doctor had correctly performed the treatment.

The court explained that § 448.30 codified the principles of Trogun v. Fruchtman, 58 Wis. 2d 569 (1973), and Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1 (1975). These two cases established that a physician has a duty to make disclosures reasonably necessary under the circumstances to enable a reasonable person to intelligently give consent.

A jury can make a causal connection between the doctor’s failure to inform and the patient’s subsequent injury by asking whether the average prudent person in the patient’s position would have chosen a different course of treatment if told of it, the court said.

Limitations on the duty developed by the court cases are included in the statute, the court continued. Specifically, a doctor does not need to know “every potential risk,” but only those known a “reasonably well-qualified practitioner or specialist” in a similar professional classification would know. Similarly, a doctor does not need to give a detailed technical explanation “that in all probability the patient would not understand.”

Disclosure does not extend to “extremely remote” risks that “might falsely or detrimentally alarm the patient.” Likewise, the duty does not apply to emergencies or with persons unable to give consent because of incompetence, age, or some other disability.

Controlling precedent

The Wisconsin Supreme Court put the patient’s right to know into action in Martin v. Richards, 192 Wis. 2d 156 (1995).

In Martin, the doctor treating the head injury of a 14-year-old girl diagnosed a concussion, although he also believed it might be intracranial bleeding. The doctor told the girl’s father that the girl could go home or stay at the hospital for observation. The doctor did not tell the father that a CT scan could be performed for further diagnosis, or that if a neurological complication were detected, the girl would have to be taken to another hospital better equipped to address it.

The father had her daughter admitted to the hospital, but her condition deteriorated to the point that she had to transfer to the U.W. Hospital where CT scans revealed intracranial bleeding. Two emergency surgeries were only partially successful, leaving the girl a partial spastic quadriplegic.

A trial court held that § 448.30 did not apply because the possibility of intracranial bleeding was “extremely remote.” The court of appeals reversed, finding that the consequences of intracranial bleeding are so serious that a 1 to 3 percent chance of its occurrence cannot be “extremely remote.”

Ruling in favor of the girl, the supreme court reaffirmed that the standard for informed consent is set by what the patient needs to know to make an informed decision, not what the doctor believes is necessary. Accordingly, the court insisted that the patient know of “all of the viable alternatives and risks of the treatment proposed.”

The Miller court rejected the argument that § 448.30 does not require doctors to inform patients of alternate treatments for a condition not diagnosed or not being treated by the physician. Under the facts of Miller, the court said the doctor may not have believed the girl was bleeding at the time he diagnosed a concussion, but he knew it was a distinct possibility of developing. It is the condition, not the diagnosis, that drives the duty to inform, the court said.

Similarly, the court rebuffed the argument that the course of treatment is a medical decision, relieving the doctor of a duty to inform. “The doctor might decide against the alternate treatments or care, he might try to persuade the patient against utilizing them, but he must inform them when a reasonable person would want to know,” the Miller court stated.

As applied to this case

Returning to the claims against Brusky, the justices declared that the circuit court incorrectly ruled that there was not credible evidence from which a jury could conclude there were reasonable alternatives available for treating Bubb’s TIA.

Brusky himself had testified that a carotid Doppler ultrasound, which helps determine carotid artery blockage, was “one of the reasonable ways” he could have treated Bubb to know if additional measures were immediately needed. Experts testified to a debate in the medical profession over whether patients should be hospitalized immediately after a TIA episode, which could lead a jury to believe there were reasonable alternatives to Brusky’s treatment.

Justices also noted that the trial court appeared to believe there was credible evidence to show reasonable alternatives because it included language to that effect in its medical negligence jury instructions.

The court said this same evidence suggests a reasonable jury could find a patient in Bubb’s position would have refused Brusky’s recommended form of treatment, if he had been informed of the alternatives.

Brusky argued that even if Bubb had been informed, it is debatable that anything could have been done to save Bubb from a stroke. But the justices said that causation is a jury question and the record provided a basis to find it. The court noted testimony that if the Doppler ultrasound had been performed the night Bubb collapsed or the following day, the clogged artery would have been detected and Bubb would have been prepared for emergency surgery.

The court defused Brusky’s argument that he cannot be expected to have specialized knowledge in many different areas by referring to the statutory exceptions to his duty to inform. Specifically, the court said, a doctor is only expected to know what a “reasonably well-qualified physician in a similar medical classification would know.”