Wisconsin Court of Appeals decision clears way for malpractice lawsuit

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A Janesville woman’s medical malpractice suit can move forward after the Wisconsin Court of Appeals District IV affirmed a Rock County judge’s decision to not dismiss a malpractice case against a physician, who claimed the patient did not have a relevant claim.

Melissa Hubbard sued Dr. Carol J. Neuman for medical negligence in Rock County Circuit Court alleging she breached her duty of care by failing to inform Hubbard she recommended a surgeon remove her ovaries during surgery to treat her endometriosis. Dr. Michael McGauley performed the surgery, which was focused on removing a portion of her colon. Dr. Neuman said since she did not perform the surgery, she was not required to obtain informed consent.

Dr. Neuman also moved for summary judgment regarding the causation element of Hubbard’s claim, alleging she only observed a portion of the February 2018 surgery to confirm the patient’s severe endometriosis during surgery and recommended McGauley remove Hubbard’s ovaries.

Neuman sought summary judgment because McGauley’s testimony in another lawsuit — that he would have removed Hubbard’s ovaries without her being present in the operating room and that he decided to do so — defeats Hubbard’s informed consent claim against Neuman. (Previously, Hubbard sued Dr. McGauley for malpractice, but that case was dismissed.)

According to court records, the appellate judges said Hubbard’s complaint alleges sufficient facts to support a claim that Dr. Neuman had the duty to inform her about the availability, benefits and risks of reasonable alternate modes of treatment for Hubbard’s pelvic endometriosis, pursuant to Wisconsin statutes.

In their ruling, the judges wrote they focused on Wis. Stat. 448.30 related to informed consent and that “we do not address whether any other causes of action do or could arise from the factual allegations in the complaint.”

Dr. Neuman’s sole argument in the appeal was that she did not have a legal duty under Wisconsin’s informed consent statute “to obtain [Hubbard’s] consent for surgery performed by another physician,” namely Dr. McGauley.

Hubbard began seeing Dr. Neuman in January 2018 for treatment of reproductive health issues. According to notes from an appointment, the doctor wrote she “needs to consider the removal of the left (fallopian) tube and ovary and if she wants definite surgery for the endometriosis – removing the uterus, tubes and ovaries … She needs to consider these options.”

According to the complaint, Dr. Neuman never disclosed to Hubbard pre-surgery she recommended Dr. McGauley surgically remove her ovaries. Hubbard alleges if she had been informed of that recommendation, she would have immediately canceled the surgery to consider all her options.

Hubbard filed a medical negligence action against Dr. Neuman, alleging she breached her duty of care by failing to inform Hubbard of her pre-surgery recommendation to Dr. McGauley.

The complaint alleges that Dr. Neuman’s failure to disclose this recommendation to Hubbard was negligent because this failure was a “substantial factor and cause of the surgical removal of Hubbard’s ovaries” and caused her to suffer “significant injuries.”

As previously reported by the Wisconsin Law Journal, the death of a Wisconsin woman discharged from the Froedtert Emergency Room highlights gap in Wisconsin’s medical malpractice laws.