By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 28, 2010 – A physician that does not inform a patient about a test that would rule out a possible condition, but is not negligent in diagnosing the patient, still violates the Wisconsin law that requires a doctor to help a patient make informed decisions.

That’s what the appeals court held in Jandre v. Physicians Insurance Co. of Wisconsin, 2008AP1972 (Sept. 28, 2010), a case in which a jury awarded Thomas Jandre $1.85 million in damages plus post-verdict interest and attorneys' fees.

In 2003, Jandre suffered a stroke-like episode and went to the hospital. The emergency room doctor’s initial diagnosis listed the episode as a kind of stroke or Bell’s palsy, a nonlife-threatening occurrence of nerve inflammation in the brain.

The doctor ruled out ischemic stroke, which often occurs when a person’s blood supply to the brain is cut off from blockage in the carotid artery of the neck. A carotid ultrasound can determine whether a patient suffers from ischemic stroke, but the doctor did not order one.

Instead, the doctor performed a physical exam to rule out ischemic stroke and performed a CT scan, but conceded that a CT scan would not detect ischemic stroke.

Jandre testified that the doctor did not inform him that he may have suffered a stroke or that a test could be performed to rule out the possibility. The doctor’s final diagnosis was Bell’s palsy. Eleven days later, Jandre suffered a massive stroke.

Doctors performed a carotid ultrasound, which revealed that one of Jandre’s carotid arteries had a 95 percent blockage. The parties disagreed as to whether the stroke suffered was ischemic. But two physicians testified that a carotid ultrasound, if performed at the initial emergency room visit, would have revealed the blockage that was treatable by surgery.

Jandres filed suit against the doctor, the Wisconsin Physician’s Insurance Co. of Wisconsin (PIC) and the Wisconsin Injured Patients and Families Compensation Fund (IPFC).

At trial in 2008, the jury found that the doctor was not negligent in her diagnosis, but negligently failed in her duty to inform Jandres that a carotid ultrasound test was available. The jury awarded $1.85 million, apportioned among the PIC and IPFC. Both entities appealed.

Informed consent 

Under Wis. Stat. section 448.30, “[a]ny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.”

The statute also sets out situations that limit the requirement of informed consent, such as situations in which a patient would not, in all probability, understand “[d]etailed technical information” of which the doctor had knowledge.

In Bubb v. Brusky, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903, the Wisconsin Supreme Court reiterated the extent of the duty to inform under prior case law, stating that the duty is driven “by what is reasonably necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis.”

PIC argued that prior case law does not require a doctor to “provide information about diagnostic tools or treatments for conditions unrelated to the final diagnosis.”

In other words, the PIC argued that the emergency doctor’s “final diagnosis” was Bell’s palsy, so the duty to inform did not apply to information about ischemic stroke.

The appeals court rejected PIC’s call for a bright line rule that would require physician’s to disclose information related to the final diagnosis only.

“A reasonable person in Jandre’s position would want to know that there is a test to rule out stroke in order to evaluate [the doctor’s] diagnosis and recommended treatment for Bell’s palsy,” the appeals court wrote. “Therefore, the availability of a test to rule out stroke was information that [the doctor] should have disclosed under the statute.”

PIC also argued that its decision puts physician’s in the impossible position of requiring them to disclose information about “any possible condition.” But the court warned against an overstatement of the informed consent obligation.

“We are not holding that [the doctor] had to provide information about any possible condition,” the court explained. “[W]e conclude that that doctor was required to inform Jandre about a test to rule out a condition she thought he was possibly suffering from, and which she did not rule out.” 

Concurrence 

Judge Ralph Fine concurred in the opinion based on existing law, but stated that he would reverse if not bound by that existing law.

The doctor in this case was not found to be negligent, the judge explained. If a doctor is not found to be negligent in diagnosing a patient, and “fully explains to the patient the risks and benefits of treatment alternatives that are consistent with that diagnosis, that should end the matter,” Judge Fine wrote.

“[C]ontrolling case law has gone way beyond the governing statute and the decision from which that statute sprang, and has made physicians essentially strictly liable from bad results even though they were not negligent in the care and treatment of their patients,” Fine wrote.

Costs and interest 

The trial court ordered that PIC pay all judgment costs and interest. PIC argued that it was only responsible for its “pro rata share.” But the appeals court held that PIC waived its objections on judgment costs and interest because it did not object at trial.

The appeals court also rejected PIC’s argument against paying all judgment interest and not allocating some to IPFC.

The court noted that IPFC is obligated to pay claims for judgments or settlements “in excess of statutory limits or the primary insurer’s coverage,” but explained that under Wis. Admin. Code Ins. 17.35(2)(e), “PIC is liable for all interest on the judgment, including that portion of the judgment to be paid by [IPFC].”