Archive for April, 2012
The Wisconsin Supreme Court on Tuesday, April 17, issued a split decision which greatly expands the liability of physicians in medical liability cases. The case involved the scope of a physician’s duty to inform a patient, often referred to as “informed consent.”
The three-Justice majority decision was authored by Chief Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley and Patrick Crooks. Justice David Prosser, Jr. authored a concurring opinion. Justice Patience Roggensack, joined by Justices Annette Ziegler and Michael Gableman, dissented.
As explained by the dissent, the majority decision greatly expands liability for physicians. According to the dissent, the three-Justice majority decision, along with Justice Prosser’s concurring opinion, imposes strict liability for a missed diagnosis through the informed consent law. The dissenting opinion argues that this is contrary to the controlling statute (Wis. Stat. § 448.30) and long-standing precedent.
See below for a discussion of the relevant facts and multiple holdings of the Supreme Court.
The plaintiff, Thomas Jandre, was hospitalized after coffee he was drinking began coming out of his nose, and after he began drooling and slurring his speech. The left side of Jandre’s face also drooped.
Jandre was evaluated in the emergency room by the defendant, Dr. Therese Bullis. Dr. Bullis diagnosed Jandre with having Bell’s palsy. Dr. Bullis’s full diagnosis also included the possibility of a stroke. After arriving at her diagnosis, Dr. Bullis ordered a CT scan, which could rule out a hemorrhagic stroke and brain tumors. The results of the scan were normal; however, the CT scan could not detect an ischemic stroke.
Dr. Bullis listened to Jandre’s carotid arteries with a stethoscope in an effort to detect whether Jandre suffered an ischemic stroke event. Dr. Bullis had the option of also ordering a carotid ultrasound to assess Jandre’s carotid arteries, but she chose not to. This is typically more reliable than listening with a stethoscope.
Based on Jandre’s symptoms and tests performed, Dr. Bullis ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell’s palsy. Dr. Bullis informed Jandre of this diagnosis, prescribed medication, and sent him home with instructions to see a neurologist for follow-up care.
Eleven days later, Jandre suffered a full blown stroke. A carotid ultrasound performed at the hospital revealed that Jandre’s right internal carotid artery was 95 percent blocked.
Jandre sued Dr. Bullis alleging she negligently diagnosed Jandre as having Bell’s palsy, when he had initial symptoms of a stroke. Jandre also sued Dr. Bullis for negligently failing to inform him about the possibility of having a carotid ultrasound to diagnose whether he had a blocked carotid artery that had caused a stroke.
Trial Court and Court of Appeal Decision
The jury issued a verdict finding that Dr. Bullis was not negligent in her diagnosis of Jandre’s ailment. However, the jury then determined that Dr. Bullis was negligent in fulfilling her duty to obtain informed consent. Specifically, the jury found that Dr. Bullis was negligent in failing to inform Jandre of the availability of a non-invasive diagnostic tool (a carotid ultrasound) that had the potential to rule out a stroke.
The court of appeals affirmed the circuit court decision.
Supreme Court Decision
As noted above, Supreme Court was divided, evidenced by the three differing opinions. Below is an analysis of the three opinions.
First is a discussion of the three-Justice decision authored by Chief Justice Abrahamson, joined by Justices Bradley and Crooks. This is followed by a summary of Justice Prosser’s concurring opinion. Last is a discussion of Justice Roggensack’s dissent, joined by Justices Ziegler and Gableman, sharply criticizing the three-Justice majority decision.Three-Justice Majority Decision
In a lengthy 76-page decision, the Chief Justice Abrahamson ultimately concluded that:
Justice Prosser Concurring Opinion
“applying the reasonable patient standard, we conclude that under the circumstances of the present case Dr. Bullis had a duty to inform Jandre…of the availability of an alternative, viable means of determining whether he had suffered an ischemic stroke event rather than an attack of Bell’s palsy.
A jury could have determined under the facts and circumstances of the present case that Dr. Bullis should have known that information about another available non-invasive diagnostic tool was information a reasonable patient in Jandre’s position would have wanted in order to decide intelligently whether to follow Dr. Bullis’s recommendations.”
In a separate concurring opinion, Justice Prosser writes that although the “lead opinion provides a trenchant argument for affirmance… I am unable to join the opinion because of the reservations I have about the direction we are going.”
Ultimately, Justice Prosser recommends that it’s time for a “thorough review” of current administrative rules implementing Wis. Stat. § 448.30 by “a blue ribbon committee, including but not limited to medical professionals, so that physicians are given clear guidance as to their obligations under this statute.”Dissenting Opinion
Justice Roggensack, joined by Justices Ziegler and Gableman, penned a strongly-worded dissenting opinion attacking the majority’s decision.
According to the dissent, the lead decision “when combined with Justice Prosser’s concurrence that affirms the court of appeals decision, holds a physician strictly liable for a missed diagnosis, contrary to the legislative directive in Wis. Stat. § 448.30 and or long-standing precedent.”
Justice Roggensack further notes that the three-Justice majority decision failed to garner the necessary four votes to carry out its ultimate reasoning. According to the dissent, the three-Justice majority attempted to expand the statute by:
“requir[ing] that whenever there is a claim that the correct diagnosis of a patient’s ailment was not made, a physician would be liable for failing to tell a patient about all potential diagnoses and all potential tests that could have been employed to evaluate whether different ailment were the source of the patient’s symptoms.”
According to the dissent:
[the majority’s reasoning] “would be an entirely new concept that the legislature did not codify when it enacted § 448.30. Accordingly, I conclude that § 448.30 is not implicated in this malpractice action because there was no failure to inform the patient about the risks and benefits of the treatment and procedures that the physician employed.”
The dissent further explained the jury’s first finding, that Dr. Bullis was not negligent in her care and treatment of Jandre, was inconsistent with its second finding that Dr. Bullis was negligent in regard to her duty to obtain informed consent from Jandre. As a result of the jury’s inconsistent verdicts, the dissenting opinion would remand the case for a new trial on whether Dr. Bullis was negligent in her care and treatment of Jandre.
Opponents of Senate Bill 202 (2011 Wisconsin Act 219), which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act, continue to make claims that the law has taken away employees’ rights to sue for employment discrimination.
For the second time, PolitiFact (which is part of the Milwaukee Journal Sentinel) has determined that this argument is false. The latest PolitiFact false rating was given to Democratic gubernatorial candidate Kathleen Falk, who said that the Republican Legislature passed a bill that doesn’t allow women to “do something about” pay discrimination.
PolitiFact recently gave Rep. Cory Mason (D-Racine) a “mostly false” rating for saying that SB 202 “repeals a law that ensures men and women get equal pay.”
Apparently opponents of SB 202 believe that if you say something enough times it eventually will come true.
Legislation Repealing Punitive and Compensatory Damages under the Wisconsin Fair Employment Act Officially Becomes LawFriday, April 6th, 2012
In a victory for Wisconsin businesses, Gov. Scott Walker signed into law Senate Bill 202, which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act.
In 2009, Gov. Jim Doyle signed into law 2009 Wisconsin Act 20, which for the first time imposed punitive and compensatory damages in discrimination cases under the Wisconsin Fair Employment Act. WCJC scored yet another major victory by helping pass Senate Bill 202, which repeals Act 20.
Contrary to claims being made by SB 202’s opponents, this legislation does NOT take away equal pay for women or any other protected class. Once the new law goes into effect, employees alleging workplace discrimination can still sue at the state level and seek the following remedies:
- Back pay up to two years;
- Attorney fees and reasonable court costs.
- Moreover, employees can elect to sue in federal court, where they can still seek punitive and compensatory damages.
Senate Bill 202, now 2011 Wis. Act 219, protects Wisconsin businesses from meritless and costly lawsuits by returning the law as it was in 2009.
Bill Providing Immunity to School Boards for Recreational Activities and Immunity for Volunteers Signed into LawThursday, April 5th, 2012
The same day he signed the Ski Hill Liability Protection legislation, Gov. Scott Walker also signed into law 2011 Wis. Act 162, which provides immunity from liability to schools for a death or injury that occurs on school grounds when the death or injury results from a recreational activity held on the school grounds pursuant to a recreational agreement between the school board and an individual.
Specifically, the immunity under AB 497 is provided to school boards, school districts, and governing bodies of charter schools, as well as their officers, employees, and agents.
The term “recreational activity” includes “any indoor or outdoor physical activity, sport, team sport, or game, whether organized or unorganized, undertaken for exercise, relaxation, diversion, or pleasure.” The term “recreational agreement” refers to a “written authorization granted by the school to a person permitting public access to the school grounds for a recreational activity.”
The bill does provide an exception for “malicious acts” or “malicious failure to warn” against an unsafe condition.
The original bill was amended to include language providing immunity for volunteers under Wis. Stat. § 893.80. Under current law, § 893.80 imposes certain requirements and certain limitations on claims and damages in a lawsuit brought against a volunteer fire company, political corporation, governmental subdivision, or any officer, official, agent or employee.
As amended, Act 162 provides that an “agent” under § 893.80 also includes a “volunteer,” which is defined under the bill as a person who:
- Provides services or performs duties for, and with the express or implied consent of, a volunteer fire company, political corporation, or governmental subdivision or agency thereof;
- Is subject to the right of control of the volunteer fire company, political corporation, or governmental subdivision or agency thereof; and
- Is not paid a fee, salary, or other compensation by any person for the services or duties described above, other than reimbursement of expenses.
In addition, the bill provides that the procurement or maintenance of insurance or self-insurance by a volunteer fire company, political corporation, or governmental subdivision or agency, irrespective of the extent or type of coverage or the persons insured, shall not do any of the following:
- Constitute a waiver of the provisions of § 893.80; or
- Be relied upon to deny a person status as an officer, official, agent, or employee of the volunteer fire company political corporation, or governmental subdivision or agency that is procuring or maintaining the insurance or self-insurance.
On Monday, April 2, Gov. Scott Walker signed into law 2011 Wis. Act 199, which expands the “assumption of risk” doctrine to protect ski operators who follow certain safety protocols from lawsuits.
The assumption of risk doctrine provides that when an individual engages in a potentially dangerous activity, that person does so with the knowledge that the activity contains the possibility of injury.
Current law provides that one who has assumed a risk and sustained injury or death from the activity may still recover damages from the responsible party even if the injured party failed to follow prescribed protocols.
Under Act 199, if a ski area operator follows certain safety precautions, the operator will not be responsible for any injuries an individual may suffer while skiing on the operator’s ski hill.
Below are just a few of the duties a ski operator must comply with to obtain liability protection:
- Provide a notice on the ticket or hill pass that the ski hill operator is not liable for any injuries.
- Post signs containing warnings reminding participants of the dangers of skiing. Signs must be at least 10 feet inside the area where tickets are sold, and on slopes, tubing areas, trails, and terrains.
- Provide copies of trail and ski area maps in the ticketing area.
If the ski operator follows these and other requirements, then he or she is not responsible for any injuries sustained by an individual who has assumed the risk of skiing. WCJC supported Act 199.