Brown v. Dibbell
1999 Wisc. LEXIS 74, 595 N.W.2d 358, 227 Wis. 2d 28 (1999)
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Rule of Law:
In an informed consent action, a patient has a limited duty to exercise ordinary care for their own well-being. This duty includes providing truthful and complete medical history when requested by a physician, but it generally does not impose an affirmative duty to question the doctor, conduct independent research, or avoid choosing a viable medical treatment option presented by the physician.
Facts:
- Marlene Brown, who had saline breast implants, sought medical advice for a lump in her right breast.
- A mammogram showed a possible density, and radiologists recommended a clinical examination and a six-month follow-up mammogram if no abnormality was found.
- Brown consulted with Dr. David Dibbell, a reconstructive surgeon, and informed him of her significant family history of breast cancer, including her twin sister who died from it.
- Dr. Dibbell told Brown she was at high risk for developing breast cancer and discussed prophylactic bilateral mastectomies as a treatment option, partly due to her expressed fear.
- Dr. Dibbell testified he told Brown that radiologists did not consider the lesion suspicious and recommended waiting six months, but that Brown refused this option due to her intense fear.
- Brown testified that Dr. Dibbell never informed her of the radiologists' recommendation to wait six months and never discussed other alternative treatment plans.
- Brown underwent the bilateral mastectomies performed by Dr. Dibbell and subsequently experienced several complications, including scarring, asymmetry, and loss of sensation, requiring additional surgeries.
Procedural Posture:
- Marlene Brown and her husband sued Dr. David Dibbell and his employers in the Circuit Court for Trempealeau County, alleging a violation of the informed consent statute.
- At trial, the jury found that Dr. Dibbell was negligent in obtaining Ms. Brown's consent and that Ms. Brown was contributorily negligent for her own health.
- The jury apportioned causal negligence at 50% to Dr. Dibbell and 50% to Ms. Brown.
- The Circuit Court entered judgment based on the jury's verdict, denying the parties' post-verdict motions.
- The plaintiffs (appellants) appealed to the Wisconsin Court of Appeals, which reversed the circuit court's judgment and remanded the cause for a new trial.
- The Supreme Court of Wisconsin granted review of the court of appeals' decision.
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Issue:
In a medical informed consent action, does a patient's duty to exercise ordinary care for her own health and well-being allow for a finding of contributory negligence?
Opinions:
Majority - Chief Justice Shirley S. Abrahamson
Yes, a patient's duty to exercise ordinary care for her own health and well-being allows for a finding of contributory negligence in an informed consent action, but this duty is narrowly circumscribed. The court held that while contributory negligence is a valid defense in informed consent cases, a patient's duty to exercise ordinary care is limited. First, a patient has a duty to provide truthful and complete personal, family, and medical histories in response to a doctor's material questions. Second, a patient generally does not have a duty to question the doctor, ascertain the completeness of information provided, or independently seek information, as this would undermine the doctor's affirmative duty to inform. Third, a patient is not contributorily negligent for choosing among the viable medical treatments presented by a doctor, except in extraordinary circumstances. The court concluded that the circuit court erred by giving a general contributory negligence instruction instead of one tailored to these specific duties and by refusing to instruct the jury on statutory defenses available to the doctor.
Analysis:
This decision clarifies the scope of a patient's responsibility in the informed consent process, establishing that the primary burden of disclosure remains firmly with the physician. By narrowly defining the circumstances under which a patient can be deemed contributorily negligent, the court reinforces the principle that patients have a right to rely on their physicians' expertise. The case establishes a new precedent in Wisconsin for tailoring jury instructions on contributory negligence in informed consent actions to focus specifically on the patient's duty to provide accurate medical history, rather than a generalized duty of self-protection. This holding limits the ability of healthcare providers to shift blame to patients for failing to ask the 'right' questions or for choosing a presented, albeit aggressive, treatment option.
