Malpractice stats don’t support fears about informed-consent law (UPDATE)

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Lawmakers are arguing a recent Wisconsin Supreme Court decision warrants a change in decades-old law to prevent rises in malpractice suits filed and the practice of “defensive medicine.”

Yet the decision that concerns them, Jandre v. Physicians Insurance Co. of Wisconsin, was based on case law that has been around at least since 1995, if not earlier. And the number of malpractice payments reported in Wisconsin has been on a downward trend in recent years.

The number of requests for medical mediation – a preliminary step to a malpractice case – has gone from 324 in Wisconsin in 1995, to 140 in 2012. In that same time period, the number of malpractice cases that have resulted in a jury verdict has gone from 41 to 16, according to statistics from the Wisconsin Medical Mediation Panels.

Still, proponents of Assembly Bill 139, which would keep doctors from being held liable for not telling patients about alternative diagnostic tests, say the legislation is needed to avoid a rapid increase in malpractice filings.

In Jandre, the state Supreme Court last year ruled that a doctor had violated her duty of “informed consent” by not informing Thomas Jandre of a diagnostic test that might have detected a condition that was a precursor of a stroke he later suffered.

The decision puts too great of a burden on doctors, state Rep. Jim Ott, R-Mequon, the bill’s sponsor, said at a Thursday hearing of the State Assembly’s Judiciary Committee.

“We are going to see an increase in defensive medicine,” he said. “Someone may still go back and second-guess me well beyond the realm of the normal standard of care that we all expect to have.”

But Robert Jaskulski, a partner at Habush, Habush and Rottier and a representative of the Wisconsin Association for Justice, argued that there simply is no evidence suggesting malpractice claims are common in Wisconsin. Along with decrease in the number of cases filed, statistics show that plaintiffs who do manage to bring a case before a jury aren’t having an easy time of it, he said.

Of the 16 malpractice cases that went to verdict in 2012, only five were decided in favor of plaintiffs, according to Wisconsin Medical Mediation Panels. Fifteen malpractice cases went to verdict the year before, four of them coming out in favor of plaintiffs.

“The medical liability system is on the verge of disappearing,” Jaskulski said. “There is no increase in medical lawsuits in Wisconsin.”

Ott said he was inspired to introduce the legislation because of an opinion from Justice David Prosser in Jandre. Prosser’s concurrence in the majority opinion in the case resulted in a 4-3 decision. The justice wrote that he shared concerns that “the law of informed consent is being expanded beyond its original purpose, with profound consequences for the practice of medicine.”

Prosser said that expansion has resulted, in part, from cases that have made doctors not only responsible for telling patients about alternative treatments for specific conditions, but also alternative tests that can be run to diagnose a condition in the first place. He did not say, though, that the Jandre decision brought about that expansion.

Prosser instead pointed to a series of decisions, including Martin v. Richards, which the state Supreme Court handed down in 1995. Because of that case, a historical note to Wisconsin state statues says, “A doctor has a duty under this section to advise of alternative modes of diagnosis as well as of alternative modes of treatment for diagnosed conditions.”

Jury forms from 2001, 2006 and 2013 also instruct juries in informed-consent cases that doctors have a duty to inform patients of “alternative choices of” diagnostic procedures.

In his opinion, Prosser called on policy makers to set up reasonable limits to what is meant by the term “diagnosis” and to establish a blue-ribbon panel to investigate whether Wisconsin’s law on informed consent should be changed.

Several opponents of the bill asked Thursday why the justice’s advice wasn’t being heeded. They noted that Assembly Bill 139 and its companion, Senate Bill 137, were being heard by separate committees on the same day in an apparent attempt to rush them through the legislature.

Ott said he was afraid the Jandre decision was leaving doctors with little guidance on how to run their practices. He also noted that physicians groups had been consulted on the drafting of Assembly Bill 139, making that process comparable to what would happen on a blue-ribbon panel.

Conceding that such a panel would also include patients’ representatives, Ott said doctors can be trusted “to keep the interest of patients in mind, as well.”

In Jandre, a jury found that the doctor who had treated Jandre was not negligent for misdiagnosing him but that she had nonetheless failed to meet her informed-consent duty by not informing him of a test that could have detected he was suffering from a mini-stroke. The doctor instead diagnosed Jandre with Bell’s Palsy, a condition that often causes temporary facial paralysis, and he suffered a full stroke 11 days later.

Ott conceded he can’t say exactly how the duty of informed consent had been expanded under the Jandre decision. He instead pointed to Prosser’s concurring opinion and the dissenting opinion submitted by three of the other justices in that case.

“That was their concern,” he said. “That wasn’t my concern. And they are concerned informed consent is being expanded under these decisions.”