Informed consent bill passes Senate

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The state Senate passed a bill Tuesday governing what information doctors are obliged to provide to patients.

Before voting for Assembly Bill 139, senators adopted an amendment that matched a provision added to a companion bill, Senate Bill 137, which was adopted by the Senate Committee on Labor and Judiciary on Oct. 9. The change eliminated language that would have shielded doctors from legal liability for failing to provide information about treatments for conditions that they have not determined a patient has.

The amended version instead refers to “any condition the physician has not included in his or her diagnosis.”

At the Senate committee hearing this past week, state Sen. Glenn Grothman, R-West Bend, said the change was needed to prevent Wisconsin from being an outlier among other states. But Jeff Pitman, president of the Wisconsin Association for Justice, a trial lawyers group, said it was unclear to him what the practical effects of the amendment would be.

Pitman said he and other lawyers were pushing to have the bill refer to a “differential diagnosis,” which is a list doctors compile of the medical conditions a patient is most likely to have. He said the amendment that was actually passed would hold doctors legally liable only if they fail to provide information about alternatives treatments for the particular diagnosis they believe most likely to be the right one.

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 not 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.

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.

Assembly Bill 139 was passed by the state Assembly on May 8 but did not include the amendment the Senate added Tuesday, meaning the two versions must be reconciled before the bill can be sent for Gov. Scott Walker’s signature.

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