Jandre v. Physicians Insurance

2010 WI App 136, 792 N.W.2d 558, 330 Wis. 2d 50
CourtCourt of Appeals of Wisconsin
DecidedSeptember 28, 2010
DocketNo. 2008AP1972
StatusPublished
Cited by3 cases

This text of 2010 WI App 136 (Jandre v. Physicians Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jandre v. Physicians Insurance, 2010 WI App 136, 792 N.W.2d 558, 330 Wis. 2d 50 (Wis. Ct. App. 2010).

Opinions

¶ 1. BRENNAN, J.

This case arises out of a medical [54]*54malpractice action. Thomas W. Jandre ("Jandre" unless otherwise noted) and his wife Barbara J. Jandre (collectively, the "Jandres") brought medical negligence and informed consent claims against Dr. Therese J. Bullis and her insurer Physicians Insurance Company of Wisconsin (hereinafter referred to collectively as "PIC") and the Wisconsin Injured Patients and Families Compensation Fund ("the Fund"). The Jandres claimed that Dr. Bullis: (1) negligently diagnosed Jandre with Bell's palsy and (2) failed to inform Jandre of a test to rule out a stroke, which was a condition that Dr. Bullis had included in her differential diagnosis but not in her final diagnosis.1 The jury decided that Dr. Bullis did not negligently diagnose Jandre with Bell's palsy but was negligent with respect to her duty of informed consent under Wis. Stat. § 448.30 (2007-08) 2 The trial court entered judgment against PIC and the Fund on the jury's informed consent verdict, and apportioned damages between the two. However, the court required PIC alone to pay all of the judgment interest and costs. Two issues have been raised on appeal.

¶ 2. First, PIC and the Fund jointly appeal the trial court's judgment, contending that the informed consent obligation of Wis. Stat. § 448.30 is limited to information about the physician's final diagnosis only and that the trial court erred when it applied the [55]*55doctrine to Dr. Bullis' differential diagnosis. The Jandres, relying on the "reasonable person" test of Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), and Bubb v. Brusky, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903, argue that § 448.30 does not limit a physician's duty of informed consent to information about conditions in the final diagnosis. Rather, they assert that a physician is required to disclose information about all alternate, viable medical modes of treatment, including diagnosis, that a reasonable person in the patient's position would want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis. See Martin, 192 Wis. 2d at 176; see also Bubb, 321 Wis. 2d 1, ¶ 71 ("Th[e] answer is dictated 'by what a reasonable person under the circumstances then existing would want to know.'") (citing Martin, 192 Wis. 2d at 174).

¶ 3. We agree with the Jandres and affirm on this first issue because well-established precedent in Wisconsin makes it clear that the outcome of each case depends on its particular circumstances. Consequently, the scope of the information a physician is required to disclose is not limited to information regarding the final condition diagnosed, but instead, a physician must disclose "what... a reasonable person in the patient's position [would] want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis." See Martin, 192 Wis. 2d at 176. Here, Dr. Bullis first diagnosed Jandre as either having some kind of stroke or Bell's palsy and later formed a final diagnosis of Bell's palsy. As treatment, she recommended Jandre go home and wait for the Bell's palsy to resolve because Bell's palsy generally resolves on its own. A stroke, on the other hand, can kill or seriously injure a patient. There is no test for Bell's palsy, but [56]*56there is a test, a carotid ultrasound, which can detect a mini-stroke or full-blown ischemic stroke. We conclude that under these circumstances, Jandre, in order "to make an intelligent decision with respect to the choices of treatment or diagnosis" would want to know if he was having a stroke. See id. at 175. Accordingly, Wis. Stat. § 448.30 required Dr. Bullis to inform Jandre of the test.

¶ 4. Second, PIC alone appeals the trial court's order requiring it to pay all of the judgment interest and costs. PIC argues that the Fund should be responsible for paying its pro rata share of the taxable costs and interest based on its share of the judgment. We conclude that the plain meaning of Wis. Admin. Code § INS 17.35 (Mar. 2010) and Wis. Stat. ch. 655 obligate PIC to pay all of the judgment interest in this case. Further, we conclude that PIC waived the issue of who should pay judgment costs. Consequently, we affirm on the second issue as well.

BACKGROUND

¶ 5. On June 13, 2003, Jandre was at work and driving to a job site when he drank some coffee and it came out through his nose. He was drooling, his speech was slurred, his face drooped on the left side, he was unsteady, dizzy and his legs felt weak. His co-workers took him to the St. Joseph's Hospital West Bend emergency room. Jandre told the emergency room nurse his complaints, and his co-workers reported their observations of Jandre's symptoms. The nurse noted in Jandre's chart that he complained of left facial weakness, slurred speech and dizziness that lasted approximately twenty-plus minutes. The nurse noted that she observed that the left side of Jandre's face drooped.

[57]*57¶ 6. Jandre was evaluated at the emergency room by Dr. Bullís. Dr. Bullís read Jandre's chart, including the nurse's notes, took a medical, social and family history from Jandre and performed a physical examination. Dr. Bullís testified that she observed left-side facial weakness and mild slurred speech. She made a differential diagnosis — which she testified was a "list" of what she was "evaluating the patient for" — of some kind of stroke or Bell's palsy.

¶ 7. The testimony at trial established that there are two types of stroke: (1) ischemic, during which the blood supply to the brain is cut off, most commonly due to blockage in the carotid artery in the neck, and (2) hemorrhagic, during which there is bleeding in the tissue of the brain. There are also two types of temporary blockages, or "mini-strokes," a transient ischemic accident ("TIA") and a reversible ischemic neurological deficit ("RIND"), both of which are warning signs of a "full blown" stroke, which can cause death or permanent injury. A TIA is temporary and does not usually result in long term damage. A RIND is similar to a TIA but lasts more than twenty-four hours. Dr. Bullís ordered a CT scan for Jandre, which can determine whether a patient suffered from a hemorrhagic stroke, a brain bleed or a tumor. The results of the CT scan were normal. Dr. Bullís conceded that the CT scan would not detect an ischemic stroke. Although there is a test to determine whether a patient suffered an ischemic stroke — a carotid ultrasound, which was available at St. Joseph's Hospital — Dr. Bullís did not order one.

¶ 8. The trial testimony also established that Bell's palsy is an inflammation of the seventh cranial nerve, which is responsible for facial movement. It is not life-threatening, and the majority of people who [58]*58suffer from Bell's palsy recover after several weeks or months without any further symptoms. There is no test for Bell's palsy. It is diagnosed by ruling out everything else.

¶ 9. Dr. Bullis' final diagnosis was that Jandre had a mild form of Bell's palsy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
2010 WI App 136, 792 N.W.2d 558, 330 Wis. 2d 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jandre-v-physicians-insurance-wisctapp-2010.