The Wisconsin Supreme Court on Tuesday, April 17, issued a split decision which greatly expands the liability of physicians in medical liability cases. The case involved the scope of a physician’s duty to inform a patient, often referred to as “informed consent.”

The three-Justice majority decision was authored by Chief Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley and Patrick Crooks. Justice David Prosser, Jr. authored a concurring opinion. Justice Patience Roggensack, joined by Justices Annette Ziegler and Michael Gableman, dissented.

As explained by the dissent, the majority decision greatly expands liability for physicians. According to the dissent, the three-Justice majority decision, along with Justice Prosser’s concurring opinion, imposes strict liability for a missed diagnosis through the informed consent law. The dissenting opinion argues that this is contrary to the controlling statute (Wis. Stat. § 448.30) and long-standing precedent. See below for a discussion of the relevant facts and multiple holdings of the Supreme Court.

Facts

The plaintiff, Thomas Jandre, was hospitalized after coffee he was drinking began coming out of his nose, and after he began drooling and slurring his speech. The left side of Jandre’s face also drooped. Jandre was evaluated in the emergency room by the defendant, Dr. Therese Bullis. Dr. Bullis diagnosed Jandre with having Bell’s palsy. Dr. Bullis’s full diagnosis also included the possibility of a stroke.

After arriving at her diagnosis, Dr. Bullis ordered a CT scan, which could rule out a hemorrhagic stroke and brain tumors. The results of the scan were normal; however, the CT scan could not detect an ischemic stroke. Dr. Bullis listened to Jandre’s carotid arteries with a stethoscope in an effort to detect whether Jandre suffered an ischemic stroke event. Dr. Bullis had the option of also ordering a carotid ultrasound to assess Jandre’s carotid arteries, but she chose not to. This is typically more reliable than listening with a stethoscope.

Based on Jandre’s symptoms and tests performed, Dr. Bullis ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell’s palsy. Dr. Bullis informed Jandre of this diagnosis, prescribed medication, and sent him home with instructions to see a neurologist for follow-up care. Eleven days later, Jandre suffered a full blown stroke. A carotid ultrasound performed at the hospital revealed that Jandre’s right internal carotid artery was 95 percent blocked.

Jandre sued Dr. Bullis alleging she negligently diagnosed Jandre as having Bell’s palsy, when he had initial symptoms of a stroke. Jandre also sued Dr. Bullis for negligently failing to inform him about the possibility of having a carotid ultrasound to diagnose whether he had a blocked carotid artery that had caused a stroke.

Trial Court and Court of Appeal Decision

The jury issued a verdict finding that Dr. Bullis was not negligent in her diagnosis of Jandre’s ailment. However, the jury then determined that Dr. Bullis was negligent in fulfilling her duty to obtain informed consent. Specifically, the jury found that Dr. Bullis was negligent in failing to inform Jandre of the availability of a non-invasive diagnostic tool (a carotid ultrasound) that had the potential to rule out a stroke. The court of appeals affirmed the circuit court decision.

Supreme Court Decision

As noted above, Supreme Court was divided, evidenced by the three differing opinions. Below is an analysis of the three opinions. First is a discussion of the three-Justice decision authored by Chief Justice Abrahamson, joined by Justices Bradley and Crooks. This is followed by a summary of Justice Prosser’s concurring opinion. Last is a discussion of Justice Roggensack’s dissent, joined by Justices Ziegler and Gableman, sharply criticizing the three-Justice majority decision.

In a lengthy 76-page decision, the Chief Justice Abrahamson ultimately concluded that:

“applying the reasonable patient standard, we conclude that under the circumstances of the present case Dr. Bullis had a duty to inform Jandre…of the availability of an alternative, viable means of determining whether he had suffered an ischemic stroke event rather than an attack of Bell’s palsy. … A jury could have determined under the facts and circumstances of the present case that Dr. Bullis should have known that information about another available non-invasive diagnostic tool was information a reasonable patient in Jandre’s position would have wanted in order to decide intelligently whether to follow Dr. Bullis’s recommendations.”

In a separate concurring opinion, Justice Prosser writes that although the “lead opinion provides a trenchant argument for affirmance… I am unable to join the opinion because of the reservations I have about the direction we are going.” Ultimately, Justice Prosser recommends that it’s time for a “thorough review” of current administrative rules implementing Wis. Stat. § 448.30 by “a blue ribbon committee, including but not limited to medical professionals, so that physicians are given clear guidance as to their obligations under this statute.”

Justice Roggensack, joined by Justices Ziegler and Gableman, penned a strongly-worded dissenting opinion attacking the majority’s decision. According to the dissent, the lead decision “when combined with Justice Prosser’s concurrence that affirms the court of appeals decision, holds a physician strictly liable for a missed diagnosis, contrary to the legislative directive in Wis. Stat. § 448.30 and or long-standing precedent.” Justice Roggensack further notes that the three-Justice majority decision failed to garner the necessary four votes to carry out its ultimate reasoning. According to the dissent, the three-Justice majority attempted to expand the statute by:

“requir[ing] that whenever there is a claim that the correct diagnosis of a patient’s ailment was not made, a physician would be liable for failing to tell a patient about all potential diagnoses and all potential tests that could have been employed to evaluate whether different ailment were the source of the patient’s symptoms.”

According to the dissent:

[the majority’s reasoning] “would be an entirely new concept that the legislature did not codify when it enacted § 448.30. Accordingly, I conclude that § 448.30 is not implicated in this malpractice action because there was no failure to inform the patient about the risks and benefits of the treatment and procedures that the physician employed.”

The dissent further explained the jury’s first finding, that Dr. Bullis was not negligent in her care and treatment of Jandre, was inconsistent with its second finding that Dr. Bullis was negligent in regard to her duty to obtain informed consent from Jandre. As a result of the jury’s inconsistent verdicts, the dissenting opinion would remand the case for a new trial on whether Dr. Bullis was negligent in her care and treatment of Jandre. The case is Jandre v. Wisconsin Injured Patients and Families Compensation Fund, et al., 2012 WI 39.

This post was authored by Andrew Cook.