We’ve written about the wide range of state authority and competence in regulating medical practice, (for example, here and here.) Mostly, compromised patient safety occurs because of official acts of omission; rarely does a state appear to commit to compromising patient safety.
But as reported by the Milwaukee Journal Sentinel and analyzed by Pop Tort, the civil justice blog from the Center for Justice & Democracy, lobbyists are pushing legislation in Wisconsin to enable doctors to tell patients less than they’re obliged to communicate now.
Specifically, they want to rewrite the standard of “what a reasonable patient would want to know” to “what a reasonable physician would tell a patient.”
Such a regulatory change in informed consent—the idea that patients must be given the facts in order to make intelligent decisions about their medical treatment—pretty much renders the concept meaningless.
“The last thing you want to do is roll back the way we get information and how much information we get,” Martha “Meg” Gaines told The Journal Sentinel. She’s director of the Center for Patient Partnerships and an associate dean at the University of Wisconsin Law School.
Informed consent, as Pop Tort makes clear, should be what patients want to know, not what their doctors think they should be told. That’s the old, paternalistic model of patient relations that enlightened people reject.
The Journal-Sentinel recalled the story of how such a regressive idea gained legislative traction.
In 2003, Thomas Jandre, a heavy equipment operator, suddenly felt dizzy and weak. He was drooling and slurring his words. Co-workers took him to the hospital, where an emergency physician ordered a CT scan, and eventually diagnosed Bell's palsy, a viral nerve inflammation that causes facial paralysis.
She did not order an ultrasound of the carotid artery, which could have revealed that a blockage had cut off blood to Jandre's brain, and that he was having a mini-stroke.
Jandre had a massive stroke 11 days later that left him partially paralyzed and without use of his left hand.
An ultrasound subsequently showed that his carotid artery was 95% blocked. Had it been detected earlier, according to the lawsuit, surgery might have prevented the stroke.
A jury decided that the doctor was not negligent in her diagnosis, but was negligent in failing to tell Jandre that an ultrasound would determine whether he was having a mini-stroke. The jury awarded him $2 million in damages.
After appeal, the Wisconsin Supreme Court upheld the decisions of lower courts, an opinion, the Journal-Sentinel reports, that sharply divided the court and motivated medical professionals to propose the bill now before the Legislature to change the law on what doctors must tell their patients.
“Should patients be told about tests and procedures for medical conditions they might have, even if doctors don't believe they have them?” the newspaper asks. “Should a doctor explain why other diagnoses were ruled out? If not, can patients still make informed decisions about their care?”
Doctors and hospitals worry that the court decision is so broad that the list of options that must be disclosed to patients could be endless. The court’s lead opinion disagrees: What a patient must be told is not limitless, but is ruled by what a reasonable patient would want to know.
If you were in Jandre's shoes, wouldn’t you want to know if an inexpensive, noninvasive test could help determine if you were at risk of a major stroke, and if so, be given options about what to do?
The proposed law not only changes the standard to give physicians the keys to “reasonableness,” it requires them to tell patients only about alternative treatments for a diagnosis and their risks and benefits.
The court said the patient's condition—not the physician's diagnosis—should determine what the patient is told. And the current standard still offers physicians protection from the outlandish—they do not have to disclose information on highly unlikely possibilities.
Of course, “highly unlikely possibilities” is a definition open to individual interpretation, but given Jandre’s symptoms, no reasonable practitioner would have considered the possibility of a stroke “highly unlikely.”
See our firm's website for a detailed backgrounder on the vital concept of "informed consent," and the two dueling legal standards of what reasonable patients want to know, versus what reasonable doctors disclose.