Trial lawyers not happy with ‘informed consent’ amendment

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In amending a bill concerning what doctors must tell patients about alternatives to prescribed medical treatments, lawmakers have missed the mark, says the president of Wisconsin’s trial lawyers association.

Jeff Pitman, president of the Wisconsin Association for Justice, said he and others were seeking to have the bill, Senate Bill 137, amended to require that doctors inform patients not only of alternative ways of treating a disease but also alternative diagnoses. To that end, they wanted an amendment referring to a “differential diagnosis,” which is a list doctors compile of the medical conditions a patient is most likely to have.

But the actual amendment to the bill, which was passed on party lines by the state Senate Committee on Labor and Judiciary on Wednesday, merely replaces a passage in the original proposal referring to alternative “modes of treatment” with one using the single word “diagnosis.” Without that change, said state Sen. Glenn Grothman, R-West Bend and chairman of the judiciary committee, Wisconsin would be “a bit of an outlier” among other states.

But Pitman said the practical effects of the amendment are nonexistent and he is not entirely certain why it was made. Just as before the change was passed, he said, the new version would hold doctors legally liable only if they fail to provide information about alternatives treatments for the particular diagnosis believed most likely to be the right one. Pitman said the legislation could lead to absurd results, such as providing legal immunity to a doctor who determines that a patient with a severed arm is suffering from a headache.

“We appreciate any and all efforts made by Senator Grothman to improve the bill,” Pitman said. “But it falls short.”

Grothman did not elaborate on the reasons for the amendment on Wednesday and could not be reached immediately on Thursday.

SB 137 stems from the case of Jandre v. Physicians Insurance Co. of Wisconsin, in which the state Supreme Court found that a doctor had neglected her duty to tell a patient, Thomas Jandre, of a diagnostic test that might have shown he was prone to the stroke that he later suffered. In a concurring opinion in the case, Justice David Prosser fretted that the ruling was expanding doctors’ duty to tell patients pertinent medical information, often called the “informed-consent duty,” beyond what lawmakers had originally intended.

Proponents of SB 137 have said the bill will in no way impair patients’ ability to sue doctors for malpractice. The laws concerning informed consent are contained in a different part of Wisconsin statutes from those concerning physician neglect.

Pitman, though, argued that SB 137 “will basically eliminate informed consent cases in the state. It swallows the rule.”

Beyond defining what information must be furnished to patients, SB 137 would also change the standard by which a doctor’s treatment decision could be judged. Wisconsin law now relies on a “reasonable-patient standard,” meaning that doctors are required to provide any information that a reasonable patient could be expected to want.

SB 137 would change that to a “reasonable-physician standard.” Pitman said he and others were willing to accept that change so long as the informed-consent rules were allowed to continue applying to alternative diagnosis.

A companion bill to SB 137, Assembly Bill 139, was passed by the state Assembly on May 8. But it did not include Grothman’s amendment, meaning the two versions of the legislation must be reconciled before they can be passed out of the Legislature and sent to Gov. Scott Walker.

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