Wis. Assembly passes bill clarifying physician informed consent law

By Jessica M. Karmasek | May 9, 2013

MADISON, Wis. (Legal Newsline) -- The Wisconsin Assembly on Wednesday passed a bill that clarifies the state's physician informed consent law in the wake of a state Supreme Court decision last year.

Under Wisconsin's physician informed consent law, a doctor who treats a patient has a duty to inform him or her about the availability of all alternate, viable medical modes of treatment and the benefits and risks of those treatments, subject to certain exceptions.

A doctor who fails to do so may be held civilly liable for damages under tort law.

In Jandre v. Wisconsin Injured Patients and Families Compensation Fund, the state's high court ruled that a doctor's informed consent duty includes telling a patient about tests and treatments that may be appropriate, even if the doctor does not believe the patient has the condition or disease.

Assembly Bill 139, supported by many in the medical community, would change the law from a "reasonable patient" standard to a "reasonable physician" standard.

First, AB 139 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.

The bill also establishes a reasonable physician standard for what information should be provided to the patient.

The current reasonable patient standard, medical groups argue, is in danger of becoming a meaningless "hindsight 20/20" standard, where a physician's missed diagnosis could lead to instant liability, whether or not the physician was negligent in the mistaken diagnosis.

On Wednesday, the measure passed 65-31, with eight Democrats and all Republicans voting for it, except Rep. Steve Nass, who voted no.

The bill now heads to the GOP-controlled Senate.

If passed, it would head to Gov. Scott Walker, a Republican, for consideration.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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