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Another Plaintiff’s Informed Consent Victory

In another big informed consent opinion, the Wisconsin Supreme Court in Bubb v. Brusky overturned the trial court and an intermediate Wisconsin appellate court in finding that a doctor did have to inform his patient of the treatment options if the medical community is split as to the appropriate course. This case strikes me as a cousin of McQuitty v. Spangler, the Maryland high court informed consent opinion that I wrote about yesterday. Every Maryland malpractice lawyer should read this opinion along with McQuitty. But while these are long, complicated opinions, both can be distilled down to this: informed consent requires doctors to inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. Period. The take home message I get from these cases is that defendants’ malpractice lawyers can save the circuitous legal arguments that run afoul of this common sense notion.

In this case, lawyers on both sides agreed that a highly stenosed carotid artery puts a patient at greater risk for having a stroke and that a Doppler evaluation was a reasonable option that would have diagnosed the stenosed carotid artery in this case. But the doctor’s lawyer argued, among other things, that a consulting doctor has no duty to inform a patient and that there was no apparent consensus in the medical community on the question of whether the standard of care required carotid Doppler ultrasounds to detect artery blockage in patients suffering a TIA.

The trial court agreed, refusing to allow jurors to consider an informed consent claim that the doctor should have advised the Plaintiff of alternative treatment options.

The Wisconsin Supreme Court reversed and remanded the case. The opinion counters a great number of creative exceptions to Wisconsin’s informed consent statute. But the court makes clear that doctors have an obligation to inform patients of treatment alternatives that a reasonable patient might take.

You can read the full opinion here.

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