2020 Wisconsin Statutes & Annotations
Chapter 448. Medical practices.
448.30 Informed consent.

448.30 Informed consent. Any 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. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician's duty to inform the patient under this section does not require disclosure of:

(2) Detailed technical information that in all probability a patient would not understand.

(3) Risks apparent or known to the patient.

(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.

(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.

(6) Information in cases where the patient is incapable of consenting.

(7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.

History: 1981 c. 375; 2013 a. 111.

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).

A doctor has a duty under this section to 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).

What constitutes informed consent under this section (1993 stats.) 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.

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.

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. In this type of informed consent case where the issue is not whether the patient was given the pertinent information so that the patient's choice was informed, but rather whether the patient was given an opportunity to make a choice after having all of the pertinent information, the cause question is, “What did the patient himself or herself want?" Schreiber v. Physicians Insurance Co. 223 Wis. 2d 417, 588 N.W.2d 26 (1999), 96-3676.

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.

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.

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.

This section (2007 stats.) 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, 321 Wis. 2d 1, 768 N.W.2d 903, 07-0619.

Neither case law or this section (2011 stats.) limits the physician's duty to inform the patient of modes of treatment only for the final diagnosis. The distinction between conditions “related" to the final diagnosis and conditions “unrelated" to the final diagnosis finds no support in the statute or case law. A physician's duty is to inform the patient about diagnostic procedures about which a reasonable patient would want to know to make an informed, voluntary decision about his or her medical care, even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis. Jandre v. Physicians Insurance Company of Wisconsin, 2012 WI 39, 340 Wis. 2d 31, 813 N.W.2d 627, 08-1972.

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).