2010 Wisconsin Code
Chapter 448. Medical practices.
448.30 Information on alternate modes of treatment.
448.30448.30 Information on alternate modes of treatment. Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:
448.30(1)(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.
448.30(2)(2) Detailed technical information that in all probability a patient would not understand.
448.30(3)(3) Risks apparent or known to the patient.
448.30(4)(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
448.30(5)(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
448.30(6)(6) Information in cases where the patient is incapable of consenting.
448.30 - ANNOT.History: 1981 c. 375.
448.30 - ANNOT.Cross Reference: See also ch. Med 18, Wis. adm. code.
448.30 - ANNOT.A one to three in 100 chance of a condition's existence is not an "extremely remote possibility" under sub. (4) when very serious consequences could result if the condition is present. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995).
448.30 - ANNOT.A doctor has a duty under this section do advise of alternative modes of diagnosis as well as of alternative modes of treatment for diagnosed conditions. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995).
448.30 - ANNOT.What constitutes informed consent emanates from what a reasonable person in the patient's position would want to know. What a physician must disclose is contingent on what a reasonable person would need to know to make an informed decision. When different physicians have substantially different success rates with a procedure and a reasonable person would consider that information material, a court may admit statistical evidence of the relative risk. Johnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996), 93-3099.
448.30 - ANNOT.A hospital does not have the duty to ensure that a patient has given informed consent to a procedure performed by an independent physician. Mathias v. St. Catherine's Hospital, Inc. 212 Wis. 2d 540, 569 N.W.2d 330 (Ct. App. 1997), 96-1632.
448.30 - ANNOT.The onset of a procedure does not categorically foreclose withdrawal of a patient's consent. Withdrawal of consent removes the doctor's authority to continue and obligates the doctor to conduct another informed consent discussion. If the patient's choice of treatment, based on disclosure of all pertinent information to the patient, is known, the objective test of what a reasonable person would have chosen is not relevant. Schreiber v. Physicians Insurance Co. 223 Wis. 2d 417, 588 N.W.2d 26 (Ct. App. 1999), 96-3676.
448.30 - ANNOT.As a general rule, patients have a duty to exercise ordinary care for their own health. Under limited, enumerated circumstances, contributory negligence may be a defense in an informed consent case. A doctor is not restricted to only the defenses listed under this section, but a court should be cautious in giving instructions on nonstatutory defenses. Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999), 97-2181.
448.30 - ANNOT.In the absence of a persistent vegetative state, the right of a parent to withhold life-sustaining treatment from a child does not exist and the need for informed consent is not triggered when life-sustaining treatment is performed. Montalvo v. Borkovec, 2002 WI App 147, 256 Wis. 2d 472, 647 N.W.2d 413, 01-1933.
448.30 - ANNOT.A chiropractor has a duty of informed consent to make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the right to consent to or to refuse the procedure proposed or to request an alternative treatment or method of diagnosis. Hannemann v. Boyson, 2005 WI 94, 282 Wis. 2d 664, 698 N.W.2d 714, 03-1527.
448.30 - ANNOT.A patient's consent to treatment is not categorically immutable once it has been given. A physician must initiate a new informed consent discussion when there is a substantial change in circumstances, be it medical or legal. Here, the decedent's postoperative complications did not at some point became a substantial change in medical circumstances necessitating a second informed consent discussion, because it was undisputed that the decedent was informed of the risks he later faced. Hageny v. Bodensteiner, 2009 WI App 10, 316 Wis. 2d 240, 762 N.W.2d 452, 08-0133.
448.30 - ANNOT.This section requires any physician who treats a patient to inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments. Although the jury determined a physician was not negligent in his standard of care for failing to employ an alternative when treating the defendant, that did not relieve the physician of the duty to inform the patient about the availability of all alternate, viable medical modes of treatment. Bubb v. Brusky, 2009 WI 91, ___ Wis. 2d ___, 768 N.W.2d 903, 07-0619.
448.30 - ANNOT.The doctrine of informed consent is limited to apprising the patient of risks that inhere to proposed treatments. It does not impose a duty to apprise a patient of any knowledge the doctor may have regarding the condition of the patient or of all possible methods of diagnosis. McGeshick v. Choucair 9 F.3d 1229 (1993).
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