997 N.W.2d 115
Wis. Ct. App.2023Background
- Patient Renae Wetterling scheduled for a CT‑guided lung biopsy at Sacred Heart Hospital performed by Dr. Mark Southard after a cavitary lung lesion was identified.
- Nurse Michael LuCore administered Valium and hydrocodone to Wetterling before the biopsy; timing of the medication relative to Southard’s informed‑consent discussion is disputed.
- An informed‑consent form was signed at 9:10 a.m. by Wetterling’s mother (who lacked legal authority to consent for her adult daughter); signatures also include Southard and LuCore.
- During the biopsy, Wetterling sustained injuries (reported splenic punctures) that later required a splenectomy; she sued Southard and Sacred Heart alleging negligence and lack of informed consent.
- Sacred Heart moved for summary judgment arguing informed‑consent duties rest solely with the treating physician and hospital policies do not create independent tort duties; the circuit court granted summary judgment for Sacred Heart.
- On appeal, the court assumed arguendo that the nurse breached a duty but held the hospital nonetheless not liable because Wisconsin law assigns the duty of informed consent to the physician and negligence before the physician’s assessment is too remote as a matter of public policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a hospital can be liable for an employee’s actions that impair a patient’s capacity to give informed consent | Wetterling: LuCore breached ordinary care by medicating her before consent and failing to notify the physician, rendering her incapable of consenting | Sacred Heart: Statute and precedent assign informed‑consent duty exclusively to the treating physician; hospital/ staff are not civilly liable for pre‑consent interactions | Court: No hospital liability—physician alone has statutory duty; any prior negligence is too remote and barred by public policy |
| Whether hospital policies can create a legal duty/standard of care for informed consent | Wetterling: Sacred Heart policies imposed duties on LuCore that establish breach and respondeat superior liability | Sacred Heart: Internal policies do not create a statutory duty or private right of action beyond the physician’s statutory duty | Court: Hospital policies cannot expand statutory informed‑consent duty or impose vicarious liability here |
| Whether pre‑consent nurse conduct supersedes or prevents physician’s duty to assess capacity | Wetterling: Nurse conduct effectively prevented meaningful consent, so hospital should be liable | Sacred Heart: Physician has both obligation and opportunity to assess capacity regardless of prior conduct; any omission by nurse was not a superseding cause | Court: Physician’s opportunity to assess capacity makes nurse’s earlier conduct legally too remote to impose hospital liability |
Key Cases Cited
- Mathias v. St. Catherine's Hosp., 212 Wis. 2d 540 (Wis. Ct. App. 1997) (treating physician—not hospital—bears duty to obtain informed consent)
- Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1 (Wis. 1975) (purpose of informed consent is to enable intelligent patient decisionmaking)
- Peeples v. Sargent, 77 Wis. 2d 612 (Wis. 1977) (nurse/hospital negligence may be actionable where the doctor’s statutory allocation of duty does not apply)
- Cefalu v. Continental W. Ins. Co., 285 Wis. 2d 766 (Wis. Ct. App. 2005) (public‑policy remoteness can bar liability where injury is too remote from negligence)
- Hornback v. Archdiocese of Milwaukee, 313 Wis. 2d 294 (Wis. 2008) (public‑policy factors may preclude liability and limit tracing of consequences from negligent acts)