MELISSA A. HUBBARD v. CAROL J. NEUMAN, M.D.
Case No. 2023AP255
COURT OF APPEALS OF WISCONSIN
March 21, 2024
2024 WI App 22
Blanchard, Graham, and Taylor, JJ.
†Petition for Review filed.
Appellant ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark T. Budzinski and David J. Pliner of Corneille Law Group, LLC, Madison.
Respondent ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the brief of Guy K. Fish, Milton.
¶2 We affirm the circuit court‘s denial of Dr. Neuman‘s motion to dismiss because Hubbard‘s complaint alleges sufficient facts to support a claim that, pursuant to
BACKGROUND
¶3 Except as otherwise noted, the following factual allegations are taken from Hubbard‘s complaint, which we accept as true when considering a motion to dismiss.2 Cattau v. National Ins. Servs. of Wis., Inc., 2019 WI 46, ¶4, 386 Wis. 2d 515, 926 N.W.2d 756.
¶4 In January 2018 and for several months thereafter, Hubbard sought medical treatment for reproductive health issues with Dr. Neuman, a licensed obstetrician and gynecologist (OB/GYN). According to Dr. Neuman‘s notes following a January 16, 2018 medical appointment with Hubbard:
[Hubbard] needs to consider the removal of the left tube and ovary and if she wants definite surgery for the endometriosis - removing uterus tubes and ovaries. There is nothing she has to do as an emergency. She needs to consider these options. If she removes her uterus she will not conceive[,] but I believe her endometriosis is so severe she may need reproductive specialists to help her. She does not want to see them because her insurance does not cover this option. She will contact us when she decides. I have talked to Dr. McGauley about this patient and he is willing to see her.
A reasonable inference from Dr. Neuman‘s medical note is that Dr. Neuman had determined that Hubbard had endometriosis in her pelvic region that could be treated surgically.
¶5 Dr. Neuman‘s medical note also indicates that she referred Hubbard to Dr. McGauley, who subsequently scheduled a “robotic assisted laparoscopic colon resection” surgery for Hubbard on February 13, 2018 (the “February 2018 surgery“).3 We infer from the facts alleged in the complaint that Dr. McGauley was a physician specializing in colon surgeries.
¶6 Prior to the February 2018 surgery, Dr. Neuman engaged with Dr. McGauley in presurgery planning and discussions about the surgery. Initially, the physicians planned for Dr. Neuman to remove Hubbard‘s fallopian tubes, ovaries, and uterus during the surgery, and for Dr. McGauley to remove Hubbard‘s sigmoid colon. We infer from the facts alleged in the complaint, including the coordination between the physicians regarding the February 2018 surgery, that the planned ovary removal and partial colon removal were related to Hubbard‘s endometriosis. Ultimately, Dr. Neuman recommended to Dr. McGauley that he should surgically remove Hubbard‘s ovaries during this surgery.
¶7 During the February 2018 surgery, Dr. McGauley surgically removed a portion of Hubbard‘s colon and her ovaries.4
¶8 According to the complaint, Dr. Neuman never disclosed to Hubbard presurgery that Dr. Neuman had recommended, or would be recommending, that Dr. McGauley surgically remove Hubbard‘s ovaries during the February 2018 surgery. The complaint further alleges that Hubbard never advised Dr. Neuman that she
¶9 Hubbard filed a medical negligence action against Dr. Neuman, alleging that Dr. Neuman breached her duty of care by failing to inform Hubbard of her presurgery recommendation to Dr. McGauley that he remove Hubbard‘s ovaries during the February 2018 surgery. The complaint alleges that Dr. Neuman‘s failure to disclose this recommendation to Hubbard was negligent because this failure was a “substantial factor and cause of the surgical removal of Hubbard‘s ovaries” and caused her to suffer “significant injuries.”
¶10 Dr. Neuman moved to dismiss Hubbard‘s complaint for failure to state a claim upon which relief may be granted, as required by
¶11 Dr. Neuman also moved for summary judgment. Relying on deposition evidence that had been produced as part of a separate lawsuit that Hubbard brought against Dr. McGauley, Dr. Neuman asserted that she “did not perform or participate in the surgery or remove [Hubbard‘s] ovaries,” that Dr. McGauley “performed the operation and removed [Hubbard‘s] ovaries,” and that Dr. McGauley “did not base his decision to remove [Hubbard‘s] ovaries on Dr. Neuman‘s recommendation.” Accordingly, Dr. Neuman argued that the evidentiary facts undermined Hubbard‘s claim that Dr. Neuman‘s alleged informed consent violation caused Hubbard‘s injury.
¶12 The circuit court denied both of Dr. Neuman‘s motions. We granted Dr. Neuman‘s petition for leave to appeal the court‘s nonfinal order as to both Dr. Neuman‘s dismissal and summary judgment motions. See
DISCUSSION
¶13 On appeal, Dr. Neuman argues that the circuit court erred in denying her motion to dismiss for failure to state a claim and her motion for summary judgment. We address each argument in turn.
I. Motion to Dismiss for Failure to State a Claim.
A. Standard of Review.
¶14 Pursuant to
¶15 When reviewing a motion to dismiss for failure to state a claim, we accept as true all facts pled in the complaint and the reasonable inferences therefrom. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. Whether a complaint states a claim upon which relief may be granted is a question of law, and we review
B. Informed Consent and WIS. STAT. § 448.30 .
¶16 Hubbard‘s complaint does not explicitly identify the informed consent statute,
¶17 Additionally, Dr. Neuman‘s motion to dismiss for failure to state a claim is based solely on the argument that Dr. Neuman had no duty to Hubbard under
¶18 “[T]he concept of informed consent developed out of the right of every person to refuse unwanted medical treatment and control what is done to [their] body.” Hannemann v. Boyson, 2005 WI 94, ¶43, 282 Wis. 2d 664, 698 N.W.2d 714. In recognition of this “fundamental notion of the right to bodily integrity,” Wisconsin courts created the common law doctrine of informed consent. Bubb v. Brusky (Bubb II), 2009 WI 91, ¶47, 321 Wis. 2d 1, 768 N.W.2d 903 (citation omitted). Originally, the doctrine of informed consent involved situations in which a patient would consent to a certain procedure in an operation but, in the course of that operation, would be subjected to other, unauthorized procedures. Id., ¶48. However, the common law doctrine of informed consent also came to include cases in which “the patient had not received [adequate] information about the risks associated with the medical procedure.” Id. (citation omitted).
¶19 As a result, our supreme court affirmatively recognizes, as part of the common law, a separate legal duty “bottomed upon a negligence theory of liability.” Hannemann, 282 Wis. 2d 664, ¶35 (quoting Trogun v. Fruchtman, 58 Wis. 2d 569, 600, 207 N.W.2d 297 (1973)). This duty requires the physician to provide “a reasonable disclosure to [the] patient of the significant risks in view of the gravity of the patient‘s condition, the probabilities of success, and any alternative treatment or procedures if such are reasonably appropriate.” Id., ¶36 (quoting Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 11, 227 N.W.2d 647 (1975)). The court recognizes that, although “[t]he negligence theory of liability has taken many shapes, ... common to all is the existence of the duty to disclose or warn on the part of a physician and exposure to negligence liability when such duty is not properly discharged.” Bubb II, 321 Wis. 2d 1, ¶50 (citation and emphasis omitted). The duty to inform under the common law has traditionally been “measured by the patient‘s ‘objective’ need for information material to [the patient‘s]
¶20 The standards of this common law informed consent doctrine pertaining to a physician‘s duty to disclose have generally been codified in
of a physician to inform a patient in the following terms: “Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments.”
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of consenting.
(7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.
in the same or a similar medical specialty would know and disclose under the circumstances.”
¶21 Although a treating physician‘s breach of their duty to inform under
C. The Circuit Court Properly Denied Dr. Neuman‘s Motion to Dismiss.
¶22 On appeal, Dr. Neuman argues that Hubbard‘s complaint fails to state a claim for medical negligence because it does not allege sufficient facts to support a claim that Dr. Neuman had a duty to obtain Hubbard‘s informed consent under
1. Clarifying the Parties’ Dispute on Appeal.
¶23 We begin by clarifying two important aspects of Dr. Neuman‘s arguments on appeal. First, Dr. Neuman improperly characterizes Hubbard‘s cause of action as alleging that Dr. Neuman breached her duty to obtain Hubbard‘s consent for the ovarian removal surgery that Dr. McGauley performed. However, Hubbard‘s claim, as alleged in her complaint, is that Dr. Neuman “breached her duty owed to Hubbard and the appropriate standard of care by failing to disclose to Hubbard pre-surgery that [Dr. Neuman] had recommended or would be recommending to [Dr.] McGauley that he should surgically remove Hubbard‘s ovaries during the surgery scheduled for February 13, 2018.” That is, Hubbard claims that Dr. Neuman deprived Hubbard of the ability to make an informed decision about the February 2018 surgery because Dr. Neuman failed to inform Hubbard regarding Dr. Neuman‘s recommendation to Dr. McGauley to remove Hubbard‘s ovaries. In sum, Hubbard‘s cause of action arises from Dr. Neuman‘s alleged “failure to inform” Hubbard under
¶24 Second, Dr. Neuman does not dispute that a “reasonable physician in the same or a similar medical specialty” as Dr.
2. Hubbard‘s Complaint Alleges Sufficient Facts to Support a Claim That Dr. Neuman Had a Duty to Inform Under WIS. STAT. § 448.30 .
¶25 As noted earlier, Dr. Neuman argues that she did not have a duty to inform Hubbard under
¶26 As discussed above,
¶27 Additionally, the duty to inform applies to “any” physician who treats a patient.
¶28 Wisconsin case law on this issue supports our conclusion that a treating physician may have a duty to inform a patient about “reasonable alternate medical modes of treatment” under
¶29 Although our supreme court in Bubb II did not squarely address whether the emergency physician was Bubb‘s treating physician under
treatments disclosed. Id., ¶65 (citing Martin v. Richards, 192 Wis. 2d 156, 180-81, 531 N.W.2d 70 (1995)). For example, although the emergency physician in Bubb II did not have hospital admitting privileges and was not the professional to administer additional testing, the court stated that there was enough evidence to submit to the jury the issue of whether the emergency physician violated his informed consent duty because a “physician‘s duty of disclosure ‘under the statute is not limited to affirmative violations of bodily integrity.‘” Id., ¶63 (citations and emphasis omitted). For these reasons, Bubb II supports our conclusion that Hubbard‘s complaint alleges sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard under
¶30 Dr. Neuman does not address, much less make any argument about, our supreme court‘s discussion in Bubb II regarding the informed consent duties of the emergency physician. She instead argues that her position is analogous to that of the neurologist as discussed in Bubb I, the court of appeals decision that preceded Bubb II. Bubb v. Brusky (Bubb I), 2008 WI App 104, 313 Wis. 2d 187, 756 N.W.2d 584, rev‘d on other grounds, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903. In Bubb I, this court concluded that the neurologist did not have a duty of informed consent toward the patient under
¶31 Dr.
¶32 Dr. Neuman relies on court opinions from New York as persuasive authority to support her position. Dr. Neuman cites to Spinosa v. Weinstein, 571 N.Y.S.2d 747 (App. Div. 1991), and Nisenholtz v. Mount Sinai Hosp., 483 N.Y.S.2d 568 (Sup. Ct. 1984), and asserts that the courts in those cases placed the duty to inform exclusively on the physician who performed the treatment or procedure at issue in each case. However, assuming without deciding that New York case law could be a proper basis for persuasive authority here, those decisions do not support Dr. Neuman‘s position. Rather, the courts in those cases held that the duty to inform applies to both those physicians who perform a treatment or procedure and also to those who prescribe or order them. Spinosa, 571 N.Y.S.2d at 752 (“[E]xisting case law obligates the physician who has prescribed or is to perform the procedure to obtain the patient‘s informed consent.“); Nisenholtz, 483 N.Y.S.2d at 573 (“The referring physician should be held liable only when that physician has ordered a procedure or actually participates in the treatment or procedure.“).
¶33 Our research in other jurisdictions regarding a physician‘s duty to inform a patient reveals two decisions from California that are particularly analogous to the facts in this case and that provide instructive analysis.10 In Wilson
v. Merritt, 48 Cal. Rptr. 3d 630 (Ct. App. 2006), a physician who specialized in physical and rehabilitative medicine recommended that his patient undergo a medical procedure performed by a chiropractor but without disclosing the risks of the procedure to the patient. Id. at 634. As a result of injuries the patient sustained during the procedure, he brought a medical negligence claim against the physician and the chiropractor who performed the procedure for failing to advise him of the risks of the procedure. Id. at 633. Following the patient‘s presentation of his case at trial, the physician moved for a “nonsuit,” arguing that because he was not the health care provider who performed the procedure which resulted in the patient‘s injuries, he had no informed consent duty to disclose the risks to the patient of the procedure the physician had recommended. Id. at 636.
¶34 The California Court of Appeal rejected the physician‘s argument that he had no duty to disclose the risks of the treatment because he did not perform the procedure at issue. Id. at 638-40. The court reasoned that, given that the physician suggested the treatment at issue, recommended that the procedure be performed by a specific chiropractor, discussed the procedure with the patient, and assisted the chiropractor during the procedure by administering an injection and holding the patient stable, there was enough evidence that no proper disclosures were made to send the informed consent claim to the jury. Id. at 640.
¶35 Similarly, in Quintanilla v. Dunkelman, 34 Cal. Rptr. 3d 557 (Ct. App. 2005), the California Court of Appeal held that a gynecologist had a duty of informed consent to the patient regarding the gynecologist‘s recommendation to another physician that the physician surgically remove a lesion on the patient‘s labia, even though the gynecologist did not perform that surgery. Id. at 574-75. The court rejected the gynecologist‘s argument that he could not be held responsible for obtaining the patient‘s informed consent because he neither treated nor operated on the patient, but only referred her to the operating physician. Id. at 574. The court explained that the gynecologist‘s role “was more than merely that of a referring physician” because he owned the clinic to which he referred the patient, diagnosed the patient‘s condition, discussed treatment options with the patient, and directed the other surgeon to perform the surgery. Id. at 574-75.
¶36 In both of the California cases, as alleged here, neither physician performed the procedure that directly resulted in the patient‘s injury. But according to the allegations, each physician was involved in providing care to the patient, recommending the procedure at issue, and referring the patient to a specific health care professional to perform the procedure, without disclosing the risks of the recommended procedure to the patient. This involvement
¶37 We reject Dr. Neuman‘s argument that it “would lead to absurd and unworkable results” if a physician who does not perform the procedure at issue has a duty to inform the patient about the availability, benefits, and risks of reasonable alternate treatment options. According to Dr. Neuman, this would result in discouraging “the intra-disciplinary communication and cooperation that is critically important to effective patient care.” For instance, Dr. Neuman asserts that, if this duty is not limited to the physician actually performing the surgery or procedure, then all family practitioners or primary care providers who ever refer a patient to a specialist could be liable if the referring physician fails to disclose the risks associated with the care or treatment provided by the specialist.
¶38 As explained above, the allegations in the complaint, and the reasonable inferences, assert that Dr. Neuman was Hubbard‘s treating OB/GYN, had expertise as an OB/GYN in the treatment options for pelvic endometriosis, diagnosed Hubbard‘s pelvic endometriosis, was actively involved in the planning and preparations for the removal of Hubbard‘s ovaries during the February 2018 surgery, initially planned to perform the removal of Hubbard‘s fallopian tubes, ovaries, and uterus during that surgery, and recommended that Dr. McGauley remove Hubbard‘s ovaries. Recognizing that Hubbard has alleged sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard in this situation protects Hubbard‘s ability “to intelligently exercise [her] right to consent or to refuse the treatment or procedure proposed.” See Scaria, 68 Wis. 2d at 13.
¶39 In further response to Dr. Neuman‘s “absurd and unworkable” objection, as noted above,
II. Summary Judgment.
A. Governing Principles and Standard of Review.
¶41 We review a circuit court‘s decision granting or denying summary judgment independently, applying the same methodology as the circuit court. Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54. On summary judgment, the moving party is entitled to judgment as a matter of law “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶42 In reviewing a motion for summary judgment, we apply a well-established methodology. We first examine the pleadings to determine whether claims have been stated and whether a material factual issue is presented. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). Next, we examine the moving party‘s (here, Dr. Neuman‘s) affidavits “for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim.” Id. Finally, if the moving party has made a prima facie case for summary judgment, we examine “the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.” Id.
B. The Circuit Court Properly Denied Dr. Neuman‘s Summary Judgment Motion.
¶43 Dr. Neuman argues that she is entitled to judgment as a matter of law because there is no genuine dispute of material fact regarding the element of causation in Hubbard‘s claim. See Schreiber, 223 Wis. 2d at 434 (holding that a plaintiff alleging a failure to inform, like other medical malpractice claims, must show a “breach of a duty that caused an injury“). In support, Dr. Neuman relies exclusively on a portion of Dr. McGauley‘s deposition in a related case in which he testified that he would have removed Hubbard‘s ovaries regardless of whether Dr. Neuman was present at the surgery and that it was his decision:
[Question:] Okay. Doctor, if Dr. Neuman had not been present during the surgery, would you have still performed and undertaken the procedures that you testified here to about?
[Dr. McGauley:] Absolutely. Yes.
[Question:] Okay. It would have been your decision; correct?
[Dr. McGauley:] Absolutely.
The circuit court determined that there is a genuine dispute of material fact because a reasonable jury might not believe Dr.
¶44 We conclude that the circuit court properly denied Dr. Neuman‘s motion for summary judgment, but we do so on different grounds than those relied on by the court. As for the first step of our analysis, we assume without deciding that Hubbard has pled a claim for relief because Dr. Neuman does not argue to the contrary in her summary judgment motion. Turning to the second step, we determine whether Dr. Neuman has made a prima facie case for summary judgment by establishing a defense that defeats Hubbard‘s cause of action. See Preloznik, 113 Wis. 2d at 116. Because Dr. Neuman challenges only the causation element of Hubbard‘s claim, the issue is whether Dr. Neuman has made a prima facie case for summary judgment regarding causation.
¶45 Under Wisconsin law, the “causation” element of an informed consent claim requires the plaintiff to make two showings: (1) that the plaintiff would have agreed or not agreed to the alternate forms of care and treatment if disclosed; and (2) that the failure to disclose information was a cause of the patient‘s injuries. Martin, 192 Wis. 2d at 182; Schreiber, 223 Wis. 2d at 431 (“The logical corollary of the doctrine of informed consent is the right not to consent—the right to refuse treatment.” (citation omitted)). Although Dr. Neuman does not mention this two-
part causation test on appeal, the substance of her argument involves only the second showing—i.e., that her failure to inform Hubbard of her treatment recommendation was not a “substantial factor” in causing Hubbard‘s injuries. WIS JI—CIVIL 1023.3. Therefore, we will assume without deciding that Hubbard made a sufficient showing on the first criterion.12
¶46 The second part of causation at issue here is whether Dr. Neuman‘s failure to disclose information was a cause of Hubbard‘s injuries. Martin, 192 Wis. 2d at 182. For this part, the plaintiff must show that “the alternate forms of care and treatment would have made a difference.” Id. A physician‘s negligence in failing to adequately inform a patient causes a patient‘s injury if that negligence was a “substantial factor” in producing the patient‘s injury. WIS JI—CIVIL 1023.3. Because there may be more than one cause of the patient‘s injury, the substantial factor test asks whether
¶47 Thus, to make a prima facie case for summary judgment with respect to this causation part, Dr. Neuman must demonstrate that her alleged failure to inform Hubbard of her recommendation was not a substantial factor in causing the removal of Hubbard‘s ovaries and other potential injurious medical consequences.
¶48 Dr. Neuman argues that there is no genuine dispute of material fact with respect to causation because Dr. McGauley testified that he would have removed Hubbard‘s ovaries even if Dr. Neuman had not been present at the surgery and that the decision was his. We disagree that Dr. Neuman has established a defense that defeats Hubbard‘s cause of action. First, Dr. Neuman‘s interpretation of Dr. McGauley‘s testimony, quoted above, is one inference that supports her position, but there are other reasonable inferences. One other inference would be that Dr. McGauley‘s testimony does not refute an allegation that he relied on, and even followed, Dr. Neuman‘s recommendation to remove Hubbard‘s ovaries. Under this interpretation, Dr. McGauley was merely saying that Dr. Neuman‘s presence in the operating room in itself did not matter and that he was taking responsibility for removal of the ovaries, rather than saying that he did not follow Dr. Neuman‘s recommendation in removing Hubbard‘s ovaries. At summary judgment, “[t]he inferences to be drawn from the underlying facts contained in the moving party‘s material must be viewed in the light most favorable to the party opposing the motion.” Kraemer Bros. v. United States Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857 (1979) (citations omitted). As stated by our supreme court, “summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy.” Id. at 566. Dr. Neuman has failed to demonstrate a right to judgment here.
¶49 Second, Dr. Neuman misconstrues the pertinent causation moment as alleged by Hubbard. Hubbard alleges that the moment of causation was when she decided to proceed with the February 2018 surgery—which, as far as she was then aware, was limited to the partial colon removal—without being fully informed of Dr. Neuman‘s treatment recommendation that Dr. McGauley remove Hubbard‘s ovaries during this surgery. Hubbard alleges that she would not have proceeded with the surgery had Dr. Neuman informed her of this recommendation because Hubbard wanted time to consider her options. Because Dr. Neuman does not present any evidence to rebut the moment of causation that Hubbard argues resulted in her injuries, Dr. Neuman has not provided sufficient evidence to establish a defense to Hubbard‘s claim as a matter of law.
¶50 For these reasons, we conclude that Dr. Neuman has failed to make a prima facie case for summary judgment, and we affirm the circuit court‘s decision denying Dr. Neuman‘s summary judgment motion.
CONCLUSION
¶51 For the foregoing reasons, the nonfinal order of the circuit court is affirmed.
By the Court.—Order affirmed.
Notes
Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician‘s duty to inform the patient under this section does not require disclosure of:
(2) Detailed technical information that in all probability a patient would not understand.
(3) Risks apparent or known to the patient.