Jandre v. Wisconsin Injured Patients & Families Compensation Fund
340 Wis. 2d 31, 813 N.W.2d 627, 2012 WI 39 (2012)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A physician's duty to inform a patient of alternative diagnostic procedures is governed by what a reasonable person in the patient's position would want to know to make an intelligent decision. This duty is driven by the patient's symptoms and condition, not the physician's non-negligent final diagnosis, and may require disclosing tests for serious conditions considered but ruled out.
Facts:
- On June 13, 2003, Thomas Jandre experienced symptoms including facial drooping, slurred speech, drooling, dizziness, and leg weakness.
- Jandre was taken to an emergency room and evaluated by Dr. Therese Bullis, whose differential diagnosis included Bell's palsy, stroke, and transient ischemic attack (TIA).
- Dr. Bullis ordered a CT scan, which was normal and ruled out a hemorrhagic stroke.
- To assess for an ischemic stroke, Dr. Bullis listened to Jandre's carotid arteries for a bruit, a method she later admitted was a 'very, very poor' screening test.
- Dr. Bullis did not order an available, non-invasive, and more reliable test—a carotid ultrasound—which could have assessed the state of Jandre's arteries.
- Dr. Bullis made a final diagnosis of Bell's palsy, prescribed medication, and sent Jandre home.
- Dr. Bullis did not inform Jandre that his symptoms were also consistent with an ischemic stroke event, that her method for ruling it out was poor, or that a carotid ultrasound was available.
- On June 24, 2003, Jandre suffered a major stroke, which was later found to be caused by a 95% blockage in his right internal carotid artery.
Procedural Posture:
- Thomas and Barbara Jandre sued Dr. Therese Bullis and her insurer (PIC) in the Circuit Court for Fond du Lac County for negligent diagnosis and breach of the duty of informed consent.
- At trial, a jury returned a special verdict finding Dr. Bullis was not negligent in her diagnosis.
- The same jury found that Dr. Bullis did breach her duty to inform, that a reasonable person would have chosen the alternative diagnosis, and that this failure caused Jandre's injuries.
- The jury awarded the Jandres approximately $2,000,000 in damages, and the circuit court entered judgment on the verdict.
- PIC, as appellant, appealed the judgment to the Wisconsin Court of Appeals.
- The Court of Appeals affirmed the circuit court's judgment.
- PIC, as petitioner, was granted review by the Supreme Court of Wisconsin.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a physician have a duty under Wisconsin's informed consent law to inform a patient of alternative diagnostic tests for a serious condition considered in the differential diagnosis, even when the physician has made a non-negligent final diagnosis of a different, unrelated condition?
Opinions:
Majority - Shirley S. Abrahamson, C.J.
Yes, a physician has a duty under Wisconsin's informed consent law to inform a patient of alternative diagnostic tests for a serious condition considered in the differential diagnosis, even after making a non-negligent final diagnosis of a different condition. The court affirms the lower courts, rejecting a bright-line rule that would limit the duty of informed consent to the final diagnosis. Instead, the court applies the established 'reasonable patient' standard, rooted in stare decisis and codified in Wis. Stat. § 448.30. This standard dictates that the duty to inform is driven by the patient's condition and symptoms, not the physician's diagnosis. A jury could reasonably find that a patient with Jandre's stroke-like symptoms would want to know about a more conclusive, non-invasive test to rule out a stroke, especially when the method used was admittedly 'very, very poor.' The court held that claims for negligent diagnosis (governed by a 'reasonable physician' standard) and informed consent (governed by a 'reasonable patient' standard) are distinct, and a jury's differing verdicts on them are not inconsistent.
Dissenting - Patience Drake Roggensack, J.
No, a physician does not have a duty under Wisconsin's informed consent law to inform a patient about diagnostic tests for conditions unrelated to the final, non-negligent diagnosis. The majority's holding improperly expands the doctrine of informed consent to effectively create strict liability for a misdiagnosis, which is contrary to Wisconsin law. The duty of informed consent under Wis. Stat. § 448.30 and precedent like 'Scaria' applies only to the risks and benefits of treatments or procedures that a physician actually recommends, not to procedures the physician has decided against. Furthermore, the jury's verdicts are inconsistent as a matter of law; finding the physician was not negligent for her diagnostic method (which included not ordering the ultrasound) is logically repugnant to finding her negligent for failing to inform the patient about that same ultrasound.
Concurring - David T. Prosser, J.
Yes, a physician has this duty under the specific facts of this case, but the continued expansion of the informed consent doctrine raises serious policy concerns. This concurrence agrees with the majority's result because existing precedent and pattern jury instructions compel affirming the verdict. However, it expresses significant reservations about the evolution of informed consent law from a 'professionally-defined duty' to a 'reasonable patient' standard judged by a lay jury. This shift encourages defensive medicine, risks creating a perception of strict liability for physicians, and expands the concept of 'consent' beyond its logical limits, with potentially profound costs for the healthcare system. A thorough review of the statute and its implementing rules is warranted to provide clearer guidance.
Analysis:
This decision solidifies Wisconsin's expansive view of the informed consent doctrine, firmly rooting it in the 'reasonable patient' standard rather than a professional standard. It clarifies that the duty to inform is triggered by the patient's symptoms and the potential severity of undisclosed risks, not by the physician's ultimate, non-negligent diagnosis. This precedent creates a distinct path for plaintiffs who lose a negligent diagnosis claim to still succeed on an informed consent claim, potentially making physicians liable for not discussing alternatives even for conditions they reasonably ruled out. The ruling rejects bright-line rules in favor of a case-by-case, fact-intensive inquiry, placing significant trust in juries to determine what information a reasonable patient would find material.
