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Statement concerning the Supreme Court decision on Jandre v Wisconsin Injured Patients and Families Compensation Fund

Release Date: April 18, 2012
Contact: Lisa Hildebrand - 608.442.3765 lisa.hildebrand@wismed.org

Madison, Wis. – The Wisconsin Hospital Association (WHA), the Wisconsin Medical Society (Society) and the Wisconsin Chapter of the American College of Emergency Physicians (WACEP) expressed their disappointment that the Court’s decision today fails to clarify the scope of a physician’s duty to inform patients about treatment and diagnostic options the physician does not recommend. Obtaining a patient’s meaningful consent before performing treatment and diagnostic procedures is a fundamental part of the patient–physician relationship. The Court today, without a majority of the justices agreeing on the current standard in Wisconsin, leaves physicians in the difficult position of not knowing how much information a physician should provide to a patient about tests for diagnoses already ruled out by the physician.

While disagreeing with Justice Prosser’s conclusion to affirm the decision of the Court of Appeals, we appreciate that he shares our concern that, “[T]he law of informed consent is being expanded beyond its original scope and purpose, with profound consequences on the practice of medicine.” And further, that the expansion comes “potentially at great cost to the health care system.”

We agree with Justice Roggensack that, “[I]f the lead opinion had garnered four votes, which it did not, the Court would have imposed strict liability for missed diagnoses by expanding the right of informed consent … into a right to be informed about all treatments and procedures that were not recommended by the physician, but which may be relevant to whether the correct diagnosis was made.” Read more.