State’s high court: Doctor had broad duty to recommend further testing

Listen to this article

A doctor who made a non-negligent misdiagnosis regarding an emergency room patient with stroke-like symptoms could be liable for failing to inform the patient about the availability of a non-invasive diagnostic test that would have definitively identified his condition, the Wisconsin Supreme Court has ruled in affirming judgment.

The plaintiff was taken to a hospital emergency room after exhibiting stroke-like symptoms. The defendant diagnosed the plaintiff with a mild form of Bell’s palsy, prescribed medication, and sent him home with instructions to see a neurologist for follow-up care. About 10 days later, the plaintiff suffered a full-blown stroke that resulted in permanent injury.

The plaintiff filed a medical malpractice lawsuit, alleging that the defendant negligently diagnosed him with Bell’s palsy. In addition, the plaintiff alleged that the defendant breached a duty to inform him of the availability of a non-invasive diagnostic test (a carotid ultrasound) that was available to rule out the possibility of a stroke.

A jury found that the defendant’s diagnosis of Bell’s palsy was not negligent, but did find that the doctor was negligent with respect to her duty to inform.

The defendant argued that she had no duty to inform the plaintiff of the option of undergoing a carotid ultrasound, but the state supreme court disagreed.

“The duty to disclose in the instant case was triggered precisely because there was more than one reasonable diagnostic procedure available to diagnose [the plaintiff’s] condition. Although a physician is ‘at liberty to select any of the recognized methods’ of diagnosis, the physician is not at liberty to fail to disclose the availability and prospects for success of recognized alternative procedures, especially where, as here, the alternative procedure is non-invasive and more importantly, is more conclusive than the alternative diagnostic tool actually selected by the physician. To hold otherwise would be to deny patients the right to self-determination that the informed consent doctrine and [state law] are meant to protect,” the court said.

Wisconsin Supreme Court. Jandre v. Wisconsin Injured Patients and Families Compensation Fund, No. 2008AP1972.