Governor Walker signed a bill on Friday December 13th changing physicians’ informed consent obligations in Wisconsin. Section 448.30 of the Wisconsin statutes requires doctors to obtain patients’ informed consent for treatment. Assembly Bill 139 (the bill signed Friday) modifies section 448.30 of the Wisconsin statutes in the following significant ways:

• In litigation, juries will use the “reasonable physician” standard rather than the “reasonable patient standard” in determining whether a physician has met his or her informed consent duty; expert testimony will typically be necessary;

• Physicians do not have a duty to obtain informed consent for conditions they have ruled out.

The change in the statute followed a 2012 Wisconsin Supreme Court decision in Jandre vs. Injured Patients and Families Compensation Fund. In that case, the jury ruled that the physician had met her standard of care. The jury also ruled, however, that the emergency physician should have informed the patient about a diagnostic test (carotid ultrasound) for a potential transient ischemic attack (TIA) even though the doctor had ruled out a TIA.  The doctor did order other tests to rule out hemorrhagic stroke and a brain tumor, and then diagnosed Bell’s palsy. The patient had a stroke 11 days later.  At trial, the jury awarded more than $2 million on the grounds the emergency physician failed to meet the reasonable patient informed consent standard.

Although the statutory obligation to obtain informed consent lies with physicians, hospitals should keep in mind the various regulatory and accreditation requirements imposing informed consent obligations on hospitals. The Wisconsin Administrative Code, The Joint Commission, and the Medicare Conditions of Participation all have provisions requiring hospitals to adopt and enforce informed consent policies.