April 1, 2024 – The fact that a physician who was sued for violating the state’s informed consent law didn’t perform the surgery that led to the plaintiff’s injuries does not entitle the physician to summary judgment, the Wisconsin Court of Appeals (District IV) has held in Hubbard v. Neuman, 2023AP255 (March 21, 2024).
Surgery Consult
In January 2018, Melissa Hubbard sought treatment with Dr. Carol Neuman, a licensed obstetrician and gynecologist.
After an appointment on Jan. 16, 2018, Dr. Neuman wrote in her notes that Hubbard “needs to consider the removal of the left tube and ovary and if she wants definite surgery for the endometriosis – removing uterus tubes and ovaries.”
Dr. Neuman also wrote in the notes that she had referred Hubbard to Dr. McGauley. Dr. McGauley scheduled Hubbard to undergo colon surgery on Feb. 13, 2018.
Dr. Neuman and Dr. McGauley discussed the surgery prior to Feb. 13, 2018. The two planned for Dr. Neuman to remove Hubbard’s fallopian tubes, ovaries, and uterus and for Dr. McGauley to remove Hubbard’s sigmoid colon.
However, Dr. Neuman later told Dr. McGauley that he should remove Hubbard’s ovaries during the colon surgery, and Dr. McGauley did so during the surgery on Feb. 13, 2018.
Medical Negligence Lawsuit
Hubbard filed a medical negligence lawsuit against Dr. Neuman in Rock County Circuit Court in May 2021.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
In her complaint, Hubbard claimed that Dr. Neuman breached a duty of care by not telling her that she had recommended that Dr. McGauley remove her ovaries during the surgery.
Hubbard claimed that that failure: 1) was negligent because it was a substantial factor and cause of the removal of her ovaries; and 2) caused her significant damages.
Motion to Dismiss
Dr. Neuman moved to dismiss Hubbard’s lawsuit for failure to state a claim.
Dr. Neuman argued that she had no duty under Wis. Stat. section 448.30, the informed consent law, to obtain Hubbard’s consent for a surgery performed by Dr. McGauley.
Dr. Neuman also moved for summary judgment, based on evidence from a deposition in a separate lawsuit, that Hubbard had filed against Dr. McGauley.
The circuit court denied both of Dr. Neuman’s motions. Neuman appealed.
Scope of Duty to Inform
Judge Chris Taylor began her opinion by noting that under section 448.30, “[a]ny physician who treats a patient shall inform the patient about reasonable alternative medical modes of treatment and about the benefits and risks of these treatments.”
“Although the word ‘treats’ is not defined in section 448.30 or Wis. Stat. ch. 448, the ordinary meaning of this word applies to a physician’s provision of care to the patient and to the physician’s attempts to cure the patient, not just to the physician’s performance of a particular surgery or procedure,” Taylor wrote.
Judge Taylor also noted that in chapter 448, the legislature distinguished “treat” from “operation.”
“This distinction indicates that the term ‘treat’ is not synonymous with the term ‘operate’ and undermines Dr. Neuman’s argument that the duty to inform applies only to the physician who performs the ‘mode of treatment’ disclosed,” Taylor wrote.
Taylor explained that by using the word “any” in section 448.30, “the legislature indicated that … the duty to inform may apply to multiple physicians who treat a patient, not only to a physician who performs the surgery or procedure about which a physician informs a patient.”
Bubb II
Judge Taylor noted that the Wisconsin Supreme Court in Bubb v. Brusky (Bubb II), 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d (903), held that summary judgment for the defendant in cases brought under section 448.30 was not appropriate where an emergency room doctor failed to inform a patient about alternative treatments, even though he wasn’t the physician who would have provided such treatments.
That holding, Taylor wrote, “is instructive because it demonstrates that a physician may have a duty to inform a patient under section 448.30 about reasonable, alternate medical treatments and the risks and benefits of each when the physician treats a patient’s condition, even if they are not the physician who provides the alternate medical treatments disclosed.”
Dr. Neuman argued that to conclude she had a duty to inform Hubbard about the availability, benefits, and risks of alternate treatment options would lead to absurd results because it was Dr. McGauley and not her who’d removed Hubbard’s ovaries.
But Judge Taylor wrote that the Supreme Court in Bubb II “recognized [that] the statute’s explicit limitations on liability minimize the risk that physicians ‘will be required to provide patients with information outside their field of knowledge.’”
As a result, Taylor concluded, the circuit court did not err in denying Dr. Neuman’s motion to dismiss for failure to state a claim.
Multiple Interpretations
Dr. Neuman argued that the circuit court erred in denying her motion for summary judgment because, given Dr. McGauley’s deposition testimony that he would have removed Hubbard’s ovaries regardless of whether Dr. Neuman was present at the surgery, no genuine dispute of material fact remained for the jury.
But Judge Taylor reasoned that Dr. Neuman’s interpretation of Dr. McGauley’s deposition was not the only logical interpretation.
For instance, she wrote, it was possible that what McGauley meant was “that Dr. Neuman’s presence in the operating room in itself did not matter and that he was taking responsibility for removal of the ovaries, rather than saying that he did not follow Dr. Neuman’s recommendation in removing Hubbard’s ovaries.”
Moment of Causation
Judge Taylor also concluded that Dr. Neuman had misconstrued the moment of the causation alleged by Hubbard.
That moment, Judge Taylor pointed out, was the moment that Hubbard decided to go ahead with the surgery, which as far she knew – because she was unaware of Dr. Neuman’s recommendation to Dr. McGauley – would be limited to the removal of part of her colon.
“Because Dr. Neuman does not present any evidence to rebut the moment of causation that Hubbard argues resulted in her injuries, Dr. Neuman has not provided sufficient evidence to establish a defense to Hubbard’s claim as a matter of law,” Taylor wrote.
