Wisconsin high court weighs responsibilities on informed consent

A column analyzing the impact of recent court decisions on physicians

By — Posted April 25, 2011.

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The Wisconsin Supreme Court is reviewing a lower court's decision finding a physician negligent for failing to inform a patient about a stroke test after diagnosing him with a condition marked by stroke-like symptoms.

The case raises questions about the scope of informed consent and how much treatment information doctors should provide about conditions for which patients are not diagnosed. Experts say the high court's ruling could lead to unnecessary health information being given to patients and doctors ordering unneeded tests to avoid lawsuits.

Having to provide treatment options for all possible undiagnosed conditions would have a devastating impact on the practice of medicine, said Ruth Heitz, general counsel for the Wisconsin Medical Society. "It would erode patient confidence," she said.

In 2003, Thomas Jandre arrived at St. Joseph Hospital West Bend emergency department, complaining of dizziness, slurred speech and facial paralysis. Emergency physician Therese J. Bullis, MD, evaluated Jandre, noting she was examining him for "some kind of stroke or Bell's palsy," according to court documents.

Dr. Bullis ordered a CT scan to check for hemorrhagic stroke, and the results were negative. She testified that she did not order a carotid ultrasound, which would have ruled out ischemic stroke.

Based on the scan and examination of Jandre, Dr. Bullis diagnosed him with a mild form of Bell's palsy. Jandre was discharged and advised to follow up with his primary care physician. He had a stroke 11 days after the emergency department visit.

Jandre sued Dr. Bullis in 2004, alleging that she had diagnosed him negligently and failed to disclose information necessary for him to make an informed decision about his treatment. The doctor said at the trial that not all of Jandre's symptoms fit Bell's palsy, and that some symptoms were indicative of stroke, but Bell's palsy was her final diagnosis.

Informed consent liability

In 2008, a jury ruled that Dr. Bullis was not negligent for diagnosis, but she was liable for not providing informed consent. Jandre and his wife were awarded more than $2 million in damages.

An appellate court upheld the jury's decision in 2010. Judges said a physician is required to disclose not only information related to a final diagnosis, but also "what ... a reasonable person in the patient's position [would] want to know in order to make an intelligent decision with respect to the choices of treatment."

Michael Van Sicklen, an attorney for Dr. Bullis, questioned the jury and appellate decisions. "If the doctor wasn't negligent for diagnosing Bell's palsy, it makes no sense to hold her liable for treating a condition other than Bell's palsy," he said.

The court applied the state's informed consent law broadly, potentially driving doctors to practice more defensive medicine, said Arthur R. Derse, MD, director for Medical and Legal Affairs at the Center for the Study of Bioethics and a professor of bioethics and emergency medicine at the Medical College of Wisconsin.

"The problem with this expansion [of the law] is that for anyone who presents in the emergency department with slurred speech, a doctor is going to say, 'Because of this case, I'm going to order this test, and, oh, by the way, I'm going to order it on every person in the ER that might have Bell's palsy,' " Dr. Derse said. "It really opens up a huge can of worms."

D. James Weis, Jandre's attorney, argued that the jury clearly understood informed consent and correctly applied the law.

"It's the jury's right to decide what patients would want to know in that situation," he said. "The very purpose of [the] statute is to make sure patients can make educated decisions about their own health care."

Shaping state law

Two previous medical liability cases helped shape consent laws in Wisconsin.

In Bubb v. Brusky, Richard Bubb arrived in a hospital ED in 2001 with stroke-like symptoms. After tests and an improvement in Bubb's condition, emergency physician William Brusky, MD, discharged him and arranged follow-up care with a neurologist. Before that appointment, Bubb had a stroke.

He alleged that Dr. Brusky had failed to inform him of the option to stay in the hospital for an ultrasound that could have detected the problem more quickly. Dr. Brusky argued he was not liable.

In Martin v. Richards, a girl was diagnosed with a concussion after a 1995 car accident. The child later hemorrhaged, experiencing brain damage. Her parents claimed they were not informed that the injury could cause brain bleeding or about tests to check for it.

In both cases, Wisconsin courts ruled that the physicians should have disclosed to patients the alternative treatment options. The court opinions since have been used to help decide other informed consent cases.

Jandre's attorney, Weis, said the Bubb and Martin rulings set the standard on informed consent. But Van Sicklen, Dr. Bullis' lawyer, said the Jandre case is different, because the other two cases centered on treatment options being provided to patients about their particular diagnoses.

"In our case, it's undisputed that an ultrasound is irrelevant to Bell's palsy," Van Sicklen said.

Wisconsin's informed consent law requires only disclosures about treatment options, not the diagnostic tests for every potential condition, he added.

In a concurring opinion in the appellate Jandre ruling, Judge Ralph A. Fine agreed with the majority's decision. But he said the judges were compelled to decide in favor of Jandre because of prior case precedents, not because of the language of Wisconsin's informed consent law.

The law "does not direct that the physician tell the patient about the full spectrum of possible diagnoses that might, in retrospect, be consistent with the patient's symptoms," he wrote. "So where did the physician's duty to discuss with the patient the range of possible diagnoses come from? Well ... it came from the [past] cases.

"Must the physician in obeisance to the patient's medical judgment then do everything the patient wants done? If the answer to this question is 'yes,' there will be no ceiling to the already rocketing health care costs because of the plethora of unnecessary tests and procedures such an answer will spawn."

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