## Facts

- Thomas W. Jandre presented to a hospital emergency department with sudden neurological symptoms (including slurred speech, facial drooping, dizziness, and leg weakness).
- Emergency physician Dr. Therese J. Bullis considered possible causes including Bell’s palsy and ischemic stroke.
- Bullis listened over Jandre’s neck (auscultation) to assess possible carotid artery blockage but did not order a carotid ultrasound, a reliable noninvasive test.
- Bullis diagnosed Bell’s palsy and discharged Jandre.
- Bullis did not tell Jandre that his symptoms were consistent with a possible ischemic stroke, that auscultation was a less reliable method for detecting carotid blockage, that ultrasound testing was available, or that a transient event could be followed by a major stroke.
- Eleven days later, Jandre suffered a massive ischemic stroke; imaging showed an approximately 95% carotid artery blockage, leaving lasting impairments.
- Jandre and his wife sued for (1) negligent diagnosis and (2) failure to obtain informed consent under Wis. Stat. § 448.30.
- A jury found Bullis not negligent in diagnosis but liable for failure to obtain informed consent; the court of appeals affirmed.

## Issues

1. Whether Wis. Stat. § 448.30 can require disclosure of a serious alternative possible cause of symptoms and an available diagnostic test (carotid ultrasound) even when the physician’s diagnosis is found non-negligent.
2. Whether a physician may be found non-negligent in diagnosis yet still be liable for failing to obtain informed consent under § 448.30.
3. Whether § 448.30 is limited to disclosure about treatment options for the physician’s chosen diagnosis, or also covers information a reasonable patient would consider material to deciding on further evaluation.

## Decision

- The Wisconsin Supreme Court affirmed the judgment for the plaintiffs on the informed-consent claim.
- The Court held a physician may be liable for failure to obtain informed consent even if the physician was not negligent in diagnosis.
- The Court concluded the informed-consent duty was not confined to treatment alternatives tied only to the final diagnosis; on these facts, a jury could find a duty to disclose the possibility of carotid blockage/stroke and the availability of carotid ultrasound.
- The Court treated the scope of required disclosure as a fact-driven question under the reasonable-patient standard, appropriately decided by the jury here.

## Legal Principles

- Negligent diagnosis and lack of informed consent are distinct theories of liability; a defense verdict on diagnosis does not bar informed-consent liability.
- Under Wis. Stat. § 448.30, disclosure is measured by what a reasonable patient would find material to deciding whether to proceed with a proposed course of care.
- Required disclosure may include information about a serious, reasonably possible alternative cause of symptoms and a readily available, low-risk diagnostic test, when material to a reasonable patient’s decision.
- Courts generally should not remove informed-consent questions from the jury where materiality and scope of disclosure depend on the clinical circumstances and patient decisionmaking.

## Conclusion

The court sustained informed-consent liability where an emergency physician, despite a non-negligent Bell’s palsy diagnosis, did not disclose that the patient’s symptoms could indicate a blocked carotid artery and did not disclose the availability of a noninvasive ultrasound that could confirm or rule out that high-risk condition, because a jury could find such information material to a reasonable patient’s decision.


Jandre v. Wis. Injured Patients & Fams. Comp. Fund, 813 N.W.2d 627 (Wis. 2012)