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Society applauds signing of informed consent law

Release Date: December 13, 2013
Contact: Lisa Hildebrand - 608.442.3765 lisa.hildebrand@wismed.org

MADISON (Dec. 13, 2013) — Physicians and their patients across Wisconsin will benefit from Gov. Scott Walker’s signing today of Assembly Bill 139 (AB 139), which provides vital clarification of the state’s informed consent law. The bill was introduced earlier this year by Rep. Jim Ott and Sen. Glenn Grothman after the Wisconsin Medical Society and other organizations voiced concerns about the Wisconsin Supreme Court’s 2012 decision in Jandre v. Wisconsin Injured Patients and Families Compensation Fund.

“This is a significant victory for preserving our state’s high-quality health care environment,” said Society President Timothy McAvoy, MD. “Without this clarifying legislation, patients might have undergone tests that their physicians believed weren’t necessary. The Society thanks Gov. Walker and the State Legislature for their support of AB 139, which acknowledges the expertise and medical judgment of the outstanding 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.

“Physicians are keenly aware that obtaining meaningful consent before performing treatment and diagnostic procedures is a fundamental aspect of the patient/physician relationship,” said Dr. McAvoy. “The Jandre decision muddied that relationship and encouraged not just the wasteful practice of defensive medicine, but also a risk that the patient could be overwhelmed with information the physician doesn’t believe is relevant.”

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.