Wis. SC upholds $2M award in med mal case

By Jessica M. Karmasek | Apr 30, 2012


MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court, in a ruling earlier this month, upheld a $2 million jury award against a physician, her insurer and a state compensation fund in a medical malpractice lawsuit.

In its April 17 opinion, the Court affirmed a state Court of Appeals decision.

The appeals court upheld the judgment of the Fond du Lac County Circuit Court, which entered a jury verdict in favor of plaintiffs Thomas W. Jandre and his wife, Barbara, and against defendants Dr. Therese J. Bullis; her insurer, Physicians Insurance Company of Wisconsin, or PIC; and the Wisconsin Injured Patients and Families Compensation Fund.

The Jandres asserted Bullis negligently diagnosed Jandre with Bell's palsy and failed to inform Jandre of a diagnostic test -- in this case, a carotid ultrasound -- that could have been used to rule out the possibility of a stroke.

Bell's palsy is a viral inflammation of the seventh cranial nerve. In a classic case, the symptoms involve only facial paralysis.

According to the record, stroke was one of several conditions that was included in Bullis' differential diagnosis, but not in her final diagnosis.

Days after, Jandre suffered a full-blown stroke, which impaired his physical and cognitive abilities.

The Jandres sued.

A jury found Bullis' diagnosis of Bell's palsy was not negligent; however, it found that she was negligent with respect to her duty to inform Jandre. It awarded the Jandres about $2 million in damages.

The PIC sought review of the circuit and appeals court rulings. The fund did not.

On appeal before the state's high court, the PIC questioned whether there is a bright-line rule that once a physician makes a non-negligent final diagnosis, there is no duty to inform the patient about diagnostic tests for conditions unrelated to the condition that was included in the final diagnosis.

The PIC, which urged the Court to adopt such a rule, argued that a physician has no duty to inform the patient about conditions unrelated to the condition identified in the physician's non-negligent diagnosis.

In this case, the PIC contended that the circuit court had to find Bullis not negligent on the claim of breach of duty to inform, rather than let the jury decide the question.

The Court affirmed the lower court decisions, applying the reasonable patient standard.

Under the standard, "Wisconsin law 'requires that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis.'"

Chief Justice Shirley S. Abrahamson, who authored the lead opinion, said the bright-line rule the PIC urged the Court to adopt is "incompatible" with the reasonable patient standard, which was adopted by the state Legislature and explained in case law.

"Applying the reasonable patient standard to the facts and circumstances of the present case involving a non-negligent diagnosis of Bell's palsy, we conclude that the circuit court could not determine, as a matter of law, that the physician had no duty to inform the patient of the possibility that the cause of his symptoms might be a blocked artery, which posed imminent, life-threatening risks, and of the availability of alternative, non-invasive means of ruling out or confirming the source of his symptoms," the chief justice wrote.

However, Abrahamson noted that the PIC raised a "fundamental legal question" concerning the scope of a physician's duty to inform a patient.

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

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