5 N.W.3d 852
Wis. Ct. App.2024Background
- Melissa Hubbard sued Dr. Carol Neuman, alleging medical negligence for failing to inform her about Neuman’s recommendation to another surgeon to remove Hubbard’s ovaries during a planned colon surgery for endometriosis.
- Dr. Neuman was Hubbard's treating OB/GYN and actively involved in her care, including presurgery planning and the ultimate recommendation that the ovaries be removed during the colon surgery performed by Dr. McGauley.
- Hubbard asserted she was not told of Neuman’s recommendation and would have reconsidered surgery had she been informed.
- Dr. Neuman moved to dismiss the case (arguing no duty under the informed consent statute because she did not perform the surgery) and for summary judgment (claiming lack of causation).
- The circuit court denied both motions; Dr. Neuman was granted leave for interlocutory appeal on both issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to Inform under Wis. Stat. § 448.30 | Neuman was Hubbard’s treating physician and had a duty to disclose reasonable alternate treatments | Only the physician who performs the procedure has this duty under statute | Duty applies to any treating physician, not just the one who performs the surgery |
| Sufficiency of Allegations for Motion to Dismiss | Complaint plausibly alleges breach of duty by failing to inform about the ovary removal recommendation | No legally cognizable claim since Neuman didn’t perform the surgery | Complaint stated a claim – motion to dismiss properly denied |
| Causation (Summary Judgment) | Lack of information caused harm because Hubbard would have canceled surgery if properly informed | McGauley would have removed ovaries regardless, breaking the causation chain | Disputed facts exist; causation not conclusively negated – summary judgment denied |
| Scope of statutory duty and persuasive authority from other states | Duty covers treating physicians involved in planning and recommendations | Should be limited to surgeon performing the procedure, as in some other states | Wisconsin law is broader; persuasive authority supports duty for those recommending |
Key Cases Cited
- Bubb v. Brusky, 321 Wis. 2d 1 (failure to inform about alternative treatments suffices for duty even if physician doesn’t perform treatment)
- Hannemann v. Boyson, 282 Wis. 2d 664 (common law doctrine of informed consent and its statutory codification)
- Martin v. Richards, 192 Wis. 2d 156 (sets out causation requirement in informed consent claims)
- Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1 (source for duty to inform allowing exercise of right to consent/refuse treatment)