GOP proposal would change informed consent law

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By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) – Doctors would not be required to give patients as much information about alternative treatments available to them under a Republican-sponsored bill on a fast track in the Legislature.

The proposal, backed by many in the medical community, is a reaction to a 2012 Wisconsin Supreme Court ruling that said a doctor’s “informed consent” duty includes telling a patient about medical tests and treatments that may be appropriate for a patient’s symptoms, even if the doctor doesn’t believe the patient has the underlying condition or disease.

The high court’s ruling came in a case brought by a man who was diagnosed by an emergency room doctor with Bell’s palsy. The diagnosing physician ordered tests to rule out one kind of stroke, but didn’t order another that might have detected a different kind of stroke that the patient wound up suffering 11 days later.

The bill circulated last week by Rep. Jim Ott, R-Mequon and Sen. Glenn Grothman, R-West Bend. Ott said the 4-3 Supreme Court ruling was likely to increase medical costs and result in “defensive medicine.”

Their proposal would change the law from a “reasonable patient standard” to a “reasonable physician standard.”

That means doctors would only have to inform patients about treatment options a reasonable doctor would know or disclose under the circumstances. Doctors would not be required to disclose information about alternate modes of treatment for conditions they do not believe the patient has at the time.

The law currently requires a doctor to inform the patient about the availability of all alternate, viable medical modes of treatment and the benefits and risks associated with those, with some exceptions.

Any doctor who doesn’t do that can be held civilly liable for damages.

“I think it’s a terribly anti-patient measure,” personal injury attorney Jim Weis said of the bill. He represented the patient who won his case before the Supreme Court last year.

The current law doesn’t require doctors to overwhelm patients with details that may not be important, it simply requires they be given information they would want to know, Weis said.

“And most doctors do a very good job with that,” he said.

But several medical groups, including the Wisconsin Hospitals Association and the Wisconsin Medical Society, support changing the law. They say it could stop doctors from ordering up unnecessary tests and procedures to avoid being sued.

Mark Grapentine, a lobbyist for the Wisconsin Medical Society, said the high court’s ruling “pushes medicine in absolutely the wrong direction.” And he noted that doctors can always be sued for malpractice.

Democratic lawmakers oppose the measure, saying the current law protects patient rights.

“The consumer being given knowledge is a good thing, particularly when you’re making decisions about your own body,” said Democratic state Rep. Dana Wachs, an attorney from Eau Claire who has brought malpractice lawsuits against doctors.

The bill puts “way too much control in the hands of doctors,” Wachs said.

Ott, chairman of the Assembly’s Judiciary Committee, is moving quickly on the bill. He circulated the proposal Wednesday and closed the period for co-sponsors on Friday. Ott said he hopes to have a hearing on it this month.

The Supreme Court’s ruled in a case involving Thomas Jandre, who was diagnosed with Bell’s palsy in a West Bend hospital emergency room. The emergency room doctor ordered tests that ruled out a hemorrhagic stroke, but she did not do a carotid ultrasound that might have detected an ischemic stroke – one that occurs due to an obstructed vessel carrying blood to the brain.

Eleven days later, Jandre suffered a full-blown stroke, and a carotid ultrasound found his right internal carotid artery was 95 percent blocked. He sued, accusing the doctor of negligence, and a jury agreed and awarded him $2 million.

The Supreme Court upheld the ruling, saying the doctor, under the “reasonable patient standard,” had a duty to inform Jandre of the alternate test to detect a possible ischemic stroke.

Dissenting justices said the ruling holds doctors strictly liable for a missed diagnosis, contrary to the law and longstanding precedent.