## Facts

- Marlene Brown, with a strong family history of breast cancer, sought medical evaluation after finding a breast lump and tenderness.
- After a mammogram and referral, Brown consulted Dr. David G. Dibbell, a plastic/reconstructive surgeon.
- Brown alleged Dibbell advised bilateral prophylactic mastectomies and failed to adequately disclose reasonable alternatives (e.g., biopsy, surveillance), material risks, and likely postoperative appearance.
- Dibbell asserted he discussed alternatives, including observation and possible biopsy, and that Brown repeatedly sought immediate treatment because of anxiety and family history.
- Brown underwent bilateral mastectomies with reconstruction and later experienced scarring, asymmetry, and loss of breast sensation.
- Brown and her husband sued, claiming the physician failed to obtain informed consent under Wisconsin’s informed-consent statute.

## Issues

1. Whether contributory negligence is available as a defense in an action alleging failure to obtain informed consent under Wisconsin law.
2. If contributory negligence is available, what constitutes the patient’s duty of ordinary care in the informed-consent context.
3. Whether the trial court erred by refusing to instruct the jury on statutory exceptions/defenses that can excuse a physician’s nondisclosure.
4. Whether the contributory-negligence instruction proposed by the defense was legally erroneous and misleading.

## Decision

- The Wisconsin Supreme Court affirmed the order granting a new trial.
- The court held that contributory negligence is conceptually available in informed-consent litigation because the claim sounds in negligence, but it should apply only in unusual circumstances.
- The court defined the patient’s ordinary-care duty narrowly, focusing on truthful, complete responses about medical/family history when requested and cooperation in diagnosis and treatment, not independent investigation of medical advice.
- The court held the trial court erred by failing to instruct on statutory defenses/exceptions to disclosure when supported by evidence.
- The court concluded the proposed contributory-negligence instruction was misleading because it risked shifting the reasonableness inquiry toward the physician’s viewpoint rather than the patient’s conduct under the limited duty.

## Legal Principles

- Informed-consent claims are negligence-based; contributory negligence is not categorically barred even if the informed-consent statute does not expressly address it.
- A patient’s duty of ordinary care in informed-consent cases is generally limited to providing truthful, complete, and accurate material history when asked and cooperating in the diagnostic and treatment process.
- Patients are generally not contributorily negligent merely for relying on a physician’s recommendation or for failing to ask additional questions, absent extraordinary circumstances.
- Trial courts must instruct juries on statutory defenses/exceptions to a physician’s disclosure duty when evidence supports those defenses.
- An instruction that misstates the law or likely misleads the jury—such as by reframing patient negligence from the physician’s perspective—constitutes prejudicial error warranting a new trial.

## Conclusion

The court ordered a new trial because the jury was not properly instructed on statutory disclosure defenses and because the contributory-negligence theory must be tightly confined to the patient’s limited ordinary-care duties, not generalized second-guessing of the physician’s recommendation or the patient’s choice to follow it.


Brown v. Dibbell, 595 N.W.2d 358 (Wis. 1999)