A recent Wisconsin Supreme Court (the “Court”) decision has shed some interpretive light on the scope of Wisconsin’s informed consent law. Under Wis. Stat. § 488.30, “[a]ny physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments.” In Hubbard v. Neuman, 2025 WI 15, the Court’s opinion suggests that under § 488.30, a “physician who treats” could potentially include a physician who may not have actually performed an operation or treatment, but still had a role in treating the patient.
Background
According to the complaint, the defendant OB/GYN (“OB/GYN”) diagnosed the plaintiff with a severe case of endometriosis in January 2018. The OB/GYN advised the plaintiff to undergo surgery to remove the plaintiff’s left fallopian tube and ovary. The plaintiff did not consent to the suggested removals. The OB/GYN later referred the plaintiff to a surgeon to discuss colon surgery. The surgeon scheduled the plaintiff for a laparoscopic colon resection for February 2018.
Prior to the February surgery, the OB/GYN and the surgeon engaged in pre-surgery discussions without including or informing the plaintiff. The plaintiff alleged that, during these discussions, the OB/GYN recommended to the surgeon that they remove the plaintiff’s ovaries as part of the February surgery. The OB/GYN never told the plaintiff about this recommendation, however.
The physicians additionally agreed and planned to perform the operation together. The OB/GYN would remove the fallopian tubes, uterus and ovaries, and the surgeon would remove the sigmoid colon. Ultimately, the OB/GYN did not participate in the surgery. The surgeon removed the ovaries during the February surgery without the OB/GYN’s assistance.
The plaintiff subsequently filed a medical negligence action against the OB/GYN, claiming that the OB/GYN failed to disclose the alleged pre-surgery recommendation to the surgeon to remove the plaintiff’s ovaries. The OB/GYN moved to dismiss the claim, arguing that she could not have been the “physician who treat[ed]” the plaintiff under § 488.30 because she did not remove the ovaries, and therefore she was not obligated to obtain the patient’s consent for the removal procedure. The circuit court denied the OB/GYN’s motion, and the Wisconsin Court of Appeals affirmed.
Legal Analysis and Implications
The Court affirmed the denial, focusing specifically on the language of “physician who treats.” In the Court’s opinion, the plaintiff had alleged sufficient facts to suggest that the OB/GYN might have been the “physician who treat[ed]” the plaintiff. The circuit court, therefore, properly denied the OB/GYN’s motion to dismiss.
The Court relied heavily on two primary allegations. First was the OB/GYN’s alleged continuity in treating the plaintiff. The plaintiff claimed that the OB/GYN was the main treating physician at all relevant times. The OB/GYN made the diagnosis, referred the plaintiff to the surgeon and allegedly remained the primary treating physician for several months after the surgery.
Second, while the OB/GYN was not the physician who removed the ovaries, she allegedly played a direct and influential role in the surgery. According to the complaint, the OB/GYN consulted with the surgeon about removing the ovaries without informing the plaintiff. The plaintiff maintained that if the OB/GYN had notified her about the recommendation to the surgeon to remove the ovaries, she would have immediately cancelled the operation. In the Court’s opinion, these allegations were sufficient to allow the plaintiff’s claim to proceed.
Although the Court’s decision is limited to the specific procedural question presented—i.e., whether the plaintiff alleged sufficient facts for the lower court to deny the OB/GYN’s motion to dismiss on grounds that she was not a physician who treated the patient, this opinion should place physicians on notice of the potential that this ruling has to broaden informed consent liability. According to the Court, “[a]ssuredly, § 448.30 does not apply to any physician who merely sees a patient regardless of the extent of their involvement in the treatment at issue and without reference to the facts of the case.” Informed consent cases are “fact-driven and context-specific,” and the Court preferred to let these facts continue to play out.
Finally, the Court’s decision was not unanimous. A dissenting opinion argued that the Court did not justify its decision with any meaningful analysis of the substantive law. According to the dissent, the Court interpreted “physician who treats” too broadly and failed to include an explanation of who qualifies as a treating physician, when it held that the OB/GYN might meet the definition. In its argument for a narrower interpretation of § 488.30, the dissent concluded that the plaintiff provided “no support for the contention that a recommendation from a physician is equivalent to the physician formally ordering a treatment or operation.”
Practical Takeaways
- Hard cases continue to make questionable law: This case against the OB/GYN is not the first obvious choice under the facts alleged. However, the plaintiff’s initial suit against the surgeon who removed her ovaries was dismissed in an unpublished opinion, which held that the plaintiff lacked evidence to prove that her claimed damage—the inability to conceive—was directly caused by the removal of her ovaries, given her preexisting condition. The plaintiff has likely skirted a similar challenge in this action by pleading alternative theories of damages based on her right to self-determination and enjoyment of life. In these difficult cases where existing legal boundaries can feel unjust, courts tend to limit their holdings to the facts in front of them. But that doesn’t stop later litigants from asserting the persuasive value of the case and its impact on the state of the law.
- Potentially broad reach of Wisconsin’s informed consent law: The Court determined that the plaintiff’s case was sufficient to survive a motion to dismiss. Whether the OB/GYN was, in fact, the “physician who treat[ed]” the plaintiff remains to be seen, but the decision could lead to a broadened scope of who a treating physician might be under § 448.30.
- Continued importance of documentation and direct communication with patients: The Court’s willingness to allow this case to proceed underscores the importance of documenting informed consent and direct communication between patients and physicians.
If you have any questions or would like more information on this topic, please contact:
- Katherine Kuchan at (414) 721-0479 or kkuchan@hallrender.com;
- Heather Mogden at (414) 721-0457 or hmogden@hallrender.com; or
- Your primary Hall Render contact.
Special thanks to Summer Associate Connor Reed for his assistance in the preparation of this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
