Wisconsin considers bill to change definition of "material risk" in lack of informed consent cases

Last week, the Wisconsin legislature passed a bill to nullify the effect of a decision of the state's supreme court on the standards that apply in informed consent cases. 

As you know, a cause of action for lack of informed consent is based on the argument that the defendant breached a duty to disclose information about material risks to the patient which deprived the patient of the opportunity to opt not to undergo a medical procedure.  Jurisdictions differ, however, on how they determine what a material risk is, which in turn determines when there is a duty to disclose the information.

Some jurisdictions hold that a risk is material if the plaintiff would have liked to have known of it in order to make a decision.  Others hold the risk is material if a reasonably prudent patient would have liked to have known.  Finally, other jurisdictions hold the risk is material if the standard in the medical profession is to provide information about it.  The second of these approaches is usually referred to as the "reasonable patient" standard, while the last one is referred to as the "reasonable physician" standard.

The reasonable physician standard is consistent the general tort law doctrine in that it is an objective standard based on the practice in the profession.  However the reasonable patient standard is more consistent with the policy behind the cause of action for lack of informed consent which is to respect the right to autonomy of the patient.  Obviously, plaintiffs prefer the reasonable patient standard while defendants prefer the reasonable physician standard. 

Last year, in Jandre v. Wisconsin Injured Patients and Families Compensation Fund, Wisconsin's supreme court ruled that the standard that should be applied was the reasonable patient standard.  But the bill approved last week (Assembly Bill 139) would change the law from a “reasonable patient” standard to a “reasonable physician” standard.  

Specifically, the bill states that a physician need not provide a patient with information about alternate modes of treatment for conditions he or she already has ruled out, thus empowering the physician to make decisions for the patient.

The bill now heads to the GOP-controlled Senate.