2008AP001972 Jandre v. PIC, et al.

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Medical Malpractice
Informed consent; costs and interest

In a claim alleging negligence in the duty to provide informed consent, the rule remains that a physician must disclose “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 or diagnosis;” and we reject PIC’s assertion that the Wisconsin Injured Patients and Families Compensation Fund should be responsible for paying its pro rata share of the taxable costs and interest based on its share of the judgment, because the plain meaning of WIS. ADMIN. CODE §INS 17.35 (Mar. 2010) and WIS. STAT. ch. 655 obligate PIC to pay all of the judgment interest in this case.

“Dr. Bullis first diagnosed Jandre as either having some kind of stroke or Bell’s palsy and later formed a final diagnosis of Bell’s palsy. As treatment, she recommended Jandre go home and wait for the Bell’s palsy to resolve because Bell’s palsy generally resolves on its own. A stroke, on the other hand, can kill or seriously injure a patient. There is no test for Bell’s palsy, but there is a test, a carotid ultrasound, which can detect a mini-stroke or full-blown ischemic stroke. We conclude that under these circumstances, Jandre, in order ‘to make an intelligent decision with respect to the choices of treatment or diagnosis’ would want to know if he was having a stroke.”

With regard to the issue of judgment interest and costs, PIC relies upon our decision in Herman v. Milwaukee Children’s Hospital, 121 Wis. 2d 531, 361 N.W.2d 297 (Ct. App. 1984), to argue that the Fund is responsible for judgment interest and costs in excess of the policy limits.

“PIC’s reliance on Herman is misplaced. PIC is correct that in Herman, we construed WIS. STAT. §655.27 (1983-84) to require the Fund to pay all of the judgment interest (and costs, which are not at issue here). See Herman, 121 Wis. 2d at 557-58. But PIC ignores the basis for our holding in Herman, which was that the health care provider there was not obligated to incur liability over the limits set in WIS. STAT. §655.23(5) (1983-84). See Herman, 121 Wis. 2d at 557-58. Here, PIC was obligated by WIS. STAT. §655.24(2)(a)3. and WIS. ADMIN. CODE §INS 17.35 to pay interest on supplemental payments over the policy limits. It is undisputed by the parties that §655.24(2)(a)3. and §INS 17.35 were enacted after Herman. See 1989 Wis. Act 187, §20g. (creating §655.24(2)(a)3.). Based on §655.24(2)(a)3. and §INS 17.35, the Fund’s obligation to cover that amount of the judgment in excess of the policy or statutory limit is not triggered until the primary insurer’s policy limits and supplemental payments, including interest, have been exhausted, which they were not here.”

Affirmed. Recommended for publication in the official reports.

2008AP001972 Jandre v. PIC, et al.

Dist. II, Fond du Lac County, Wirtz, J., Brennan, J.

Attorneys: For Appellant: Gutglass, James R., Milwaukee; Heffernan, Michael S., Madison; Van Sicklen, Michael B., Madison; Schneider, Maria K., Milwaukee; Wilde, Bree Grossi, Madison

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