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Bill clarifies state’s informed consent law

Release Date: November 5, 2013
Contact: Lisa Hildebrand - 608.442.3765 lisa.hildebrand@wismed.org

MADISON (November 5, 2013) — The Wisconsin Medical Society thanks the State Legislature for its support of Assembly Bill 139 (AB 139), which provides vital clarification of the state’s physician informed consent law. The bill was introduced after the Society and other organizations voiced concerns about the Wisconsin Supreme Court’s 2012 decision in Jandre v. Wisconsin Injured Patients and Families Compensation Fund.

“We’re pleased the Legislature understands the importance of this issue, and we thank the bill’s main authors – Rep. Jim Ott and Sen. Glenn Grothman – and all who voted for the legislation,” said Society President Timothy McAvoy, MD. “Wisconsin is among the best states in the nation for high-quality, high-value health care, and this bill reinforces that tradition. It also emphasizes the importance of the patient-physician relationship and acknowledges the expertise and medical judgment of the physicians in our state.”

AB 139 has two important elements. It establishes a “reasonable physician” standard for what information should be provided to the patient. The Jandre decision created a potential “hindsight 20/20” standard, where a physician’s missed diagnosis could lead to absolute liability, whether or not the physician was negligent.

The bill also states clearly that a physician need not provide a patient with information about alternate modes of treatment for conditions the physician already has ruled out. This clarification gets to the heart of the confusion in the three disparate opinions of the Jandre decision, which the Society and others believe could lead to increased defensive medicine and patient confusion.

The Jandre case involved a patient who went to the emergency department complaining of left-side facial weakness, dizziness and slurred speech. Based on the patient’s history, medical and neurological exams and CT scan results, the physician made a final diagnosis of Bell’s palsy, which the patient’s primary care physician confirmed three days later. Eight days after the emergency department visit, the patient suffered a stroke.

The patient brought a medical liability claim and an informed consent claim against the emergency room physician. The jury concluded that the physician was not negligent in her diagnosis, but it awarded damages for breach of the duty of informed consent. The Court of Appeals’ decision concluded the physician should have provided the patient with information about a carotid ultrasound, a test for stroke, not a test for Bell’s palsy. In April 2012, the Wisconsin Supreme Court affirmed the decision of the Court of Appeals.