Johnson v. Kokemoor (545 N.W.2d 495) 1996

…Donna Johnson (the plaintiff) brought an action against Dr. Richard Kokemoor (the defendant) n2 alleging his failure to obtain her informed consent to surgery as required by Wis. Stat. § 448.30 (1993-94). The jury found that the defendant failed to adequately inform the plaintiff regarding the risks associated with her surgery. The jury also found that a reasonable person in the plaintiff's position would have refused to consent to surgery by the defendant if she had been fully informed of its attendant risks and advantages.

The circuit court denied the defendant's motions to change the answers in the special verdict and, in the alternative, to order a new trial. In a split decision, the court of appeals reversed the circuit court's order.

This case presents the issue of whether the circuit court erred in admitting evidence that the defendant, in undertaking his duty to obtain the plaintiff's informed consent before operating to clip an aneurysm, failed (1) to divulge the extent of his experience in performing this type of operation; (2) to compare the morbidity and mortality rates for this type of surgery among experienced surgeons and inexperienced surgeons like himself; and (3) to refer the plaintiff to a tertiary care center staffed by physicians more experienced in performing the same surgery. The admissibility of such physician-specific evidence in a case involving the doctrine of informed consent raises an issue of first impression in this court and is an issue with which appellate courts have had little experience.

The court of appeals concluded that the first two evidentiary matters were admissible but that the third was not. The court of appeals determined that evidence about the defendant's failure to refer the plaintiff to more experienced physicians was not relevant to a claim of failure to obtain the plaintiff's informed consent. Furthermore, the court of appeals held that the circuit court committed prejudicial error in admitting evidence of the defendant's failure to refer, because such evidence allowed the jury to conclude that the defendant performed negligently simply because he was less experienced than other physicians, even though the defendant's negligence was not at issue in this case. The court of appeals therefore remanded the cause to the circuit court for a new trial.

The plaintiff's position is that the court of appeals erred in directing a new trial. The defendant's position in his cross-petition is that the circuit court and the court of appeals both erred in approving the admission of evidence referring to his experience with this type of surgery and to his and other physicians' morbidity and mortality statistics in performing this type of surgery.

We conclude that all three items of evidence were material to the issue of informed consent in this case. As we stated in Martin v. Richards (1995), "a patient cannot make an informed, intelligent decision to consent to a physician's suggested treatment unless the physician discloses what is material to the patient's decision, i.e., all of the viable alternatives and risks of the treatment proposed." In this case information regarding a physician's experience in performing a particular procedure, a physician's risk statistics as compared with those of other physicians who perform that procedure, and the availability of other centers and physicians better able to perform that procedure would have facilitated the plaintiff's awareness of "all of the viable alternatives" available to her and thereby aided her exercise of informed consent. We therefore conclude that under the circumstances of this case, the circuit court did not erroneously exercise its discretion in admitting the evidence….

The plaintiff introduced into evidence as exhibits articles from the medical literature stating that there are few areas in neurosurgery where the difference in results between surgeons is as evident as it is with aneurysms. One of the plaintiff's neurosurgical experts testified that experience and skill with the operator is more important when performing basilar tip aneurysm surgery than with any other neurosurgical procedure.

We now turn to a review of Wisconsin's law of informed consent. The common-law doctrine of informed consent arises from and reflects the fundamental notion of the right to bodily integrity. Originally, an action alleging that a physician had failed to obtain a patient's informed consent was pled as the intentional tort of assault and battery. In the typical situation giving rise to an informed consent action, a patient-plaintiff consented to a certain type of operation but, in the course of that operation, was subjected to other, unauthorized operative procedures. See, e.g., Paulsen v. Gundersen (1935) (when a patient agrees to a simple operation and a physician performs a more extensive operation, the physician is "guilty of an assault and would be responsible for damages resulting therefrom"); Throne v. Wandell (1922) (dentist extracting six of the plaintiff's teeth without her consent has committed a technical assault).

The court further developed the doctrine of informed consent in Trogun vFruchtman (1972), stating for the first time that a plaintiff-patient could bring an informed consent action based on negligence rather than as an intentional tort. The court clarified Wisconsin's modern doctrine of informed consent in Scaria v. St. Paul Fire & Marine Ins. Co (1975). Wis. Stat. § 448.30 codifies the common law set forth in Scaria.

Wisconsin Stat. § 448.30 requires that a physician inform a patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks attending these treatments. The informed consent statute reads as follows: 448.30 Information on alternate modes of treatment.

Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:

(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know. (2) Detailed technical information that in all probability a patient would not understand.
(3) Risks apparent or known to the patient.
(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. The concept of informed consent is based on the tenet that in order to make a rational and informed decision about undertaking a particular treatment or undergoing a particular surgical procedure, a patient has the right to know about significant potential risks involved in the proposed treatment or surgery. Scaria. In order to insure that a patient can give an informed consent, a "physician or surgeon is under the duty to provide the patient with such information as may be necessary under the circumstances then existing" to assess the significant potential risks which the patient confronts.

The information that must be disclosed is that information which would be "material" to a patient's decision. In the first of three seminal informed consent decisions relied upon by both the Trogun and Scaria courts, the federal court of appeals for the District of Columbia stated that information regarding risk is material when "a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy. " Canterbury v. Spence (1972). The Canterbury court defined as material and therefore "demanding a communication" from a physician to a patient all information regarding "the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated."

According to both the Scaria and Martin courts, a physician's reasonable disclosure requires that a patient be informed regarding available options. A "reasonable disclosure" of "significant risks," stated the Scaria court, requires an assessment of and communication regarding "the gravity of the patient's condition, the probabilities of success, and any alternative treatment or procedures if such are reasonably appropriate so that the patient has the information reasonably necessary to form the basis of an intelligent and informed consent to the proposed treatment or procedure." ScariaMartin court, explicitly recognizing that the statutory doctrine of informed consent in Wisconsin is "based upon the standard expounded in Canterbury," Martin Martin.

What constitutes informed consent in a given case emanates from what a reasonable person in the patient's position would want to know. Scaria. This standard regarding what a physician must disclose is described as the prudent patient standard; it has been embraced by a growing number of jurisdictions since the Canterbury decision.

The Scaria court emphasized that those "disclosures which would be made by doctors of good standing, under the same or similar circumstances, are certainly relevant and material" in assessing what constitutes adequate disclosure, adding that physician disclosures conforming to such a standard "would be adequate to fulfill the doctor's duty of disclosure in most instances." Scaria, 68 Wis. 2d at 12. But the evidentiary value of what physicians of good standing consider adequate disclosure is not dispositive, for ultimately "the extent of the physician's disclosures is driven . . . by what a reasonable person under the circumstances then existing would want to know." Martin.

"The information that is reasonably necessary for a patient to make an informed decision regarding treatment will vary from case to case." Martin, 192 Wis. 2d at 175. The standard to which a physician is held is determined not by what the particular patient being treated would want to know, but rather by what a reasonable person in the patient's position would want to know. Scaria.

Before addressing the substantive issues raised by the parties, we briefly outline the standards of review which we apply to the circuit court's evidentiary ruling admitting the three items of evidence in dispute in this case….

The doctrine of informed consent should not, argues the defendant, be construed as a general right to information regarding possible alternative procedures, health care facilities and physicians. Instead, urges the defendant, the doctrine of informed consent should be viewed as creating a "bright line" rule requiring physicians to disclose only significant complications intrinsic to the contemplated procedure. The defendant interprets Wis. Stat. § 448.30 as an embodiment of this more modest definition of informed consent. In sum, the defendant urges that the statutory provisions require disclosure of risks associated with particular "treatments" rather than the risks associated with particular physicians.

We reject the defendant's proposed bright line rule that it is error as a matter of law to admit evidence in an informed consent case that the physician failed to inform the patient regarding the physician's experience with the surgery or treatment at issue. The prudent patient standard adopted by Wisconsin in Scaria is incompatible with such a bright line rule.

As Scaria states and as Martin confirms, what a physician must disclose is contingent upon what, under the circumstances of a given case, a reasonable person in the patient's position would need to know in order to make an intelligent and informed decision. The question of whether certain information is material to a patient's decision and therefore requires disclosure is rooted in the facts and circumstances of the particular case in which it arises.

The cases upon which the Trogun and Scaria courts relied in fashioning Wisconsin's current doctrine of informed consent rejected the concept of bright line rules. The "scope of the disclosure required of physicians," stated the California Supreme Court, "defies simple definition" and must therefore "be measured by the patient's need, and that need is whatever information is material to the decision." Cobbs v. Grant (1972). "The amount of disclosure can vary from one patient to another," stated the Rhode Island Supreme Court, because "what is reasonable disclosure in one instance may not be reasonable in another." Wilkinson v. Vesey (1972). Finally, the Canterbury court's decision--which, as the Martin court underscored last term, provides the basis for Wisconsin's doctrine of informed consent, Martin--states explicitly that under the doctrine of informed consent, "there is no bright line separating the significant from the insignificant." Canterbury.

Wisconsin Stat. § 448.30 explicitly requires disclosure of more than just treatment complications associated with a particular procedure. Physicians must, the statute declares, disclose "the availability of all alternate, viable medical modes of treatment" in addition to "the benefits and risks of these treatments."…

In this case, the plaintiff introduced ample evidence that had a reasonable person in her position been aware of the defendant's relative lack of experience in performing basilar bifurcation aneurysm surgery, that person would not have undergone surgery with him. According to the record the plaintiff had made inquiry of the defendant's experience with surgery like hers. In response to her direct question about his experience he said that he had operated on aneurysms comparable to her aneurysm "dozens" of times. The plaintiff also introduced evidence that surgery on basilar bifurcation aneurysms is more difficult than any other type of aneurysm surgery and among the most difficult in all of neurosurgery. We conclude that the circuit court did not erroneously exercise its discretion in admitting evidence regarding the defendant's lack of experience and the difficulty of the proposed procedure. A reasonable person in the plaintiff's position would have considered such information material in making an intelligent and informed decision about the surgery.

We also reject the defendant's claim that even if this information was material, it should have been excluded because its prejudicial effect outweighed its probative value. The defendant contends that the admission of such evidence allowed the jury to infer that the plaintiff's partial paralysis was a product of the defendant's lack of experience and skill rather than a consequence of his alleged failure to inform.

We disagree with the defendant's claim that evidence pertaining to the defendant's experience was unduly and unfairly prejudicial. While a jury might confuse negligent failure to disclose with negligent treatment, the likelihood of confusion is nonexistent or de minimis in this case. The plaintiff dismissed her negligent treatment claim before trial. It is thus unlikely that the jury would confuse an issue not even before it with the issue that was actually being tried. We therefore conclude that the defendant was not unduly or unfairly prejudiced by the admission of evidence reflecting his failure to disclose his limited prior experience in operating on basilar bifurcation aneurysms.

The defendant next argues that the circuit court erred in allowing the plaintiff to introduce evidence of morbidity and mortality rates associated with the surgery at issue. The defendant particularly objects to comparative risk statistics purporting to estimate and compare the morbidity and mortality rates when the surgery at issue is performed, respectively, by a physician of limited experience such as the defendant and by the acknowledged masters in the field. Expert testimony introduced by the plaintiff indicated that the morbidity and mortality rate expected when a surgeon with the defendant's experience performed the surgery would be significantly higher than the rate expected when a more experienced physician performed the same surgery.

The defendant asserts that admission of these morbidity and mortality rates would lead the jury to find him liable for failing to perform at the level of the masters rather than for failing to adequately inform the plaintiff regarding the risks associated with her surgery. Furthermore, contends the defendant, statistics are notoriously inaccurate and misleading.

As with evidence pertaining to the defendant's prior experience with similar surgery, the defendant requests that the court fashion a bright line rule as a matter of law that comparative risk evidence should not be admitted in an informed consent case. For many of the same reasons which led us to conclude that such a bright line rule of exclusion would be inappropriate for evidence of a physician's prior experience, we also reject a bright line rule excluding evidence of comparative risk relating to the provider.

The medical literature identifies basilar bifurcation aneurysm surgery as among the most difficult in neurosurgery. As the plaintiff's evidence indicates, however, the defendant had told her that the risks associated with her surgery were comparable to the risks attending a tonsillectomy, appendectomy or gall bladder operation. The plaintiff also introduced evidence that the defendant estimated the risk of death or serious impairment associated with her surgery at two percent. At trial, however, the defendant conceded that because of his relative lack of experience, he could not hope to match the ten-and-seven-tenths percent morbidity and mortality rate reported for large basilar bifurcation aneurysm surgery by very experienced surgeons.

The defendant also admitted at trial that he had not shared with the plaintiff information from articles he reviewed prior to surgery. These articles established that even the most accomplished posterior circulation aneurysm surgeons reported morbidity and mortality rates of fifteen percent for basilar bifurcation aneurysms. Furthermore, the plaintiff introduced expert testimony indicating that the estimated morbidity and mortality rate one might expect when a physician with the defendant's relatively limited experience performed the surgery would be close to thirty percent.

Had a reasonable person in the plaintiff's position been made aware that being operated upon by the defendant significantly increased the risk one would have faced in the hands of another surgeon performing the same operation, that person might well have elected to forego surgery with the defendant. Had a reasonable person in the plaintiff's position been made aware that the risks associated with surgery were significantly greater than the risks that an unclipped aneurysm would rupture, that person might well have elected to forego surgery altogether. In short, had a reasonable person in the plaintiff's position possessed such information before consenting to surgery, that person would have been better able to make an informed and intelligent decision.

The defendant concedes that the duty to procure a patient's informed consent requires a physician to reveal the general risks associated with a particular surgery. The defendant does not explain why the duty to inform about this general risk data should be interpreted to categorically exclude evidence relating to provider-specific risk information, even when that provider-specific data is geared to a clearly delineated surgical procedure and identifies a particular provider as an independent risk factor. When different physicians have substantially different success rates, whether surgery is performed by one rather than another represents a choice between "alternate, viable medical modes of treatment" under § 448.30.

For example, while there may be a general risk of ten percent that a particular surgical procedure will result in paralysis or death, that risk may climb to forty percent when the particular procedure is performed by a relatively inexperienced surgeon. It defies logic to interpret this statute as requiring that the first, almost meaningless statistic be divulged to a patient while the second, far more relevant statistic should not be. Under Scaria and its progeny as well as the codification of Scaria as Wis. Stat. § 448.30, the second statistic would be material to the patient's exercise of an intelligent and informed consent regarding treatment options. A circuit court may in its discretion conclude that the second statistic is admissible.

The doctrine of informed consent requires disclosure of "all of the viable alternatives and risks of the treatment proposed" which would be material to a patient's decision. Martin. We therefore conclude that when different physicians have substantially different success rates with the same procedure and a reasonable person in the patient's position would consider such information material, the circuit court may admit this statistical evidence….

We caution, as did the court of appeals, that our decision will not always require physicians to give patients comparative risk evidence in statistical terms to obtain informed consent. Rather, we hold that evidence of the morbidity and mortality outcomes of different physicians was admissible under the circumstances of this case.

In keeping with the fact-driven and context-specific application of informed consent doctrine, questions regarding whether statistics are sufficiently material to a patient's decision to be admissible and sufficiently reliable to be nonprejudicial are best resolved on a case-by-case basis. The fundamental issue in an informed consent case is less a question of how a physician chooses to explain the panoply of treatment options and risks necessary to a patient's informed consent than a question of assessing whether a patient has been advised that such options and risks exist.

As the court of appeals observed, in this case it was the defendant himself who elected to explain the risks confronting the plaintiff in statistical terms. He did this because, as he stated at trial, "numbers give some perspective to the framework of the very real, immediate, human threat that is involved with this condition." Because the defendant elected to explain the risks confronting the plaintiff in statistical terms, it stands to reason that in her effort to demonstrate how the defendant's numbers dramatically understated the risks of her surgery, the plaintiff would seek to introduce other statistical evidence. Such evidence was integral to her claim that the defendant's nondisclosure denied her the ability to exercise informed consent.

The defendant also asserts that the circuit court erred as a matter of law in allowing the plaintiff to introduce expert testimony that because of the difficulties associated with operating on the plaintiff's aneurysm, the defendant should have referred her to a tertiary care center containing a proper neurological intensive care unit, more extensive microsurgical facilities and more experienced surgeons. While evidence that a physician should have referred a patient elsewhere may support an action alleging negligent treatment, argues the defendant, it has no place in an informed consent action.

The court of appeals agreed with the defendant that this evidence should have been excluded, and it further concluded that admission of this evidence created "a serious danger [that] the jury may confuse a duty to provide average quality care with a duty to adequately inform of medical risks." Johnson .

We share the concern expressed by the court of appeals and underscored by the defendant, but their concern is misplaced in this case. Here, the plaintiff was not asserting a claim for negligent performance. Just because expert testimony is relevant to one claim does not mean that it is not relevant to another.

When faced with an allegation that a physician breached a duty of informed consent, the pertinent inquiry concerns what information a reasonable person in the patient's position would have considered material to an exercise of intelligent and informed consent. Scaria, 68 Wis. 2d at 13; Martin, 192 Wis. 2d at 174. Under the facts and circumstances presented by this case, the circuit court could declare, in the exercise of its discretion, that evidence of referral would have been material to the ability of a reasonable person in the plaintiff's position to render informed consent.

She should have been told that this was an extremely difficult, formidable lesion and that there are people in the immediate geographic vicinity that are very experienced and that have had a great deal of contact with this type of aneurysm and that she should consider having at least a second opinion, if not going directly to one of these other [physicians]. Articles from the medical literature introduced by the plaintiff also stated categorically that the surgery at issue should be performed at a tertiary care center while being "excluded" from the community setting because of "the limited surgical experience" and lack of proper equipment and facilities available in such hospitals.

Scaria instructs us that "the disclosures which would be made by doctors of good standing, under the same or similar circumstances, are certainly relevant and material" to a patient's exercise of informed consent. ScariaScaria, we conclude that the circuit court properly exercised its discretion in admitting evidence that the defendant should have advised the plaintiff of the possibility of undergoing surgery at a tertiary care facility.

The defendant asserts that the plaintiff knew she could go elsewhere. This claim is both true and beside the point. Credible evidence in this case demonstrates that the plaintiff chose not to go elsewhere because the defendant gave her the impression that her surgery was routine and that it therefore made no difference who performed it. The pertinent inquiry, then, is not whether a reasonable person in the plaintiff's position would have known generally that she might have surgery elsewhere, but rather whether such a person would have chosen to have surgery elsewhere had the defendant adequately disclosed the comparable risks attending surgery performed by him and surgery performed at a tertiary care facility such as the Mayo Clinic, only 90 miles away.

The defendant also argues that evidence of referral is prejudicial because it might have affected the jury's determination of causation. The court of appeals reasoned that if a complainant could introduce evidence that a physician should have referred her elsewhere, "a patient so informed would almost certainly forego the procedure with that doctor." Johnson.

The court of appeals concluded that admitting evidence regarding a physician's failure to refer was prejudicial error because it probably affected the jury's decision about causation in favor of the plaintiff. Contending that a causal connection between his failure to divulge and the plaintiff's damage is required, the defendant seems to assert that the plaintiff has offered no evidence that the defendant's failure to disclose his relevant experience or his statistical risk harmed the plaintiff. Even had the surgery been performed by a "master," the defendant argues, a bad result may have occurred.

The defendant appears to attack the basic concept of causation applied in claims based on informed consent. As reflected in the informed consent jury instruction (Wis JI-Civil 1023.3 (1992)), which the defendant himself proposed and which was given at trial, the question confronting a jury in an informed consent case is whether a reasonable person in the patient's position would have arrived at a different decision about the treatment or surgery had he or she been fully informed. As reflected in the special verdict question in this case, that question asked whether "a reasonable person in Donna Johnson's position [would] have refused to consent to the surgery by Dr. Richard Kokemoor had she been fully informed of the risks and advantages of surgery." If the defendant is arguing here that the standard causation instruction is not applicable in a case in which provider-specific evidence is admitted, this contention has not been fully presented and developed.

Finally, the defendant argues that if his duty to procure the plaintiff's informed consent includes an obligation to disclose that she consider seeking treatment elsewhere, then there will be no logical stopping point to what the doctrine of informed consent might encompass. We disagree with the defendant. As the plaintiff noted in her brief to this court, "it is a rare exception when the vast body of medical literature and expert opinion agree that the difference in experience of the surgeon performing the operation will impact the risk of morbidity/mortality as was the case here," thereby requiring referral. Brief for Petitioner at 40. At oral argument before this court, counsel for the plaintiff stated that under "many circumstances" and indeed "probably most circumstances," whether or not a physician referred a patient elsewhere would be "utterly irrelevant" in an informed consent case. In the vast majority of significantly less complicated cases, such a referral would be irrelevant and unnecessary.

Moreover, we have already concluded that comparative risk data distinguishing the defendant's morbidity and mortality rate from the rate of more experienced physicians was properly before the jury. A close link exists between such data and the propriety of referring a patient elsewhere. A physician who discloses that other physicians might have lower morbidity and mortality rates when performing the same procedure will presumably have access to information regarding who some of those physicians are. When the duty to share comparative risk data is material to a patient's exercise of informed consent, an ensuing referral elsewhere will often represent no more than a modest and logical next step.

Given the difficulties involved in performing the surgery at issue in this case, coupled with evidence that the defendant exaggerated his own prior experience while downplaying the risks confronting the plaintiff, the circuit court properly exercised its discretion in admitting evidence that a physician of good standing would have made the plaintiff aware of the alternative of lower risk surgery with a different, more experienced surgeon in a better-equipped facility….