In the case of Richard Bubb v. William Brusky, MD (et al), the Wisconsin Court of Appeals, in a 2-1 decision announced June 11, ruled against a patient who appealed the trial court’s decision not to allow the jury to decide whether the physicians in the case failed to obtain adequate informed consent.

Bubb was diagnosed in the emergency department (ED) as having had a transient ischemic attack. He was treated and released and given instructions to contact a specific specialist for further testing because he was at risk for a stroke. Bubb’s wife contacted the specialist the next day, but Bubb suffered a stroke 48 hours after his ED visit, before his appointment with the specialist.

Expert testimony was presented at trial that there exists a difference of opinion within the medical community as to whether a patient in Bubb’s situation should be discharged with instructions to contact a specialist or admitted to the hospital for further testing. Bubb wanted the Court of Appeals to rule that the verdict at trial was fatally flawed because the court refused to issue a jury question and jury instruction on whether the physicians obtained proper informed consent.

The Court of Appeals ruled that the specialist had no duty to obtain informed consent from Bubb because, even though he had confirmed the emergency physician’s diagnosis and agreed to perform follow-up care, the specialist had not yet treated the patient and had no duty to inform the patient until he treats the patient.

As for the claim against the emergency physician, the Court of Appeals decided that the Bubbs’ complaint was that follow-up care was not performed quickly enough, so the issue was actually a lack of urgency, not a lack of information. Therefore, it ruled that the trial court’s decision to instruct the jury on standard of care, but not instruct it on informed consent, was proper.

The dissenting judge summed up his view of the case with the following question: “When there is widespread debate in the medical community about two distinct protocols of addressing a medical condition, must the treating physician inform the patient of the alternatives?” For him the answer was “yes,” and he felt the trial court should have instructed the jury on informed consent.

The complete opinion of the Court of Appeals can be read here.