## Facts

- Donna L. Johnson was diagnosed with a basilar bifurcation aneurysm and was referred to neurosurgeon Dr. Richard Kokemoor.
- The proposed operation (basilar bifurcation aneurysm clipping) was a rare, technically difficult procedure with substantial risks even when performed by highly experienced surgeons.
- Johnson alleged Kokemoor misstated or implied substantially greater experience with the procedure than he actually had and minimized the seriousness of the surgery.
- Johnson alleged Kokemoor materially understated the risk of death and serious neurological injury associated with the surgery given his level of experience.
- Johnson alleged Kokemoor did not disclose that more experienced surgeons and tertiary centers were available and had materially better morbidity and mortality outcomes for this procedure.
- Johnson consented to surgery at Sacred Heart Hospital and suffered catastrophic complications, leaving her an incomplete quadriplegic with significant neurological impairments.
- Johnson sued primarily for failure to obtain informed consent under Wis. Stat. § 448.30; her negligent-treatment claim was dismissed, and the case proceeded to the jury only on informed consent.
- The jury found Kokemoor failed to adequately inform Johnson of risks and advantages and that a reasonable person in her position would have refused surgery by Kokemoor if adequately informed.

## Issues

1. Whether a physician’s procedure-specific experience is material information that may be admitted and considered in an informed-consent claim.
2. Whether comparative morbidity and mortality evidence contrasting the defendant’s expected outcomes with outcomes at more experienced surgeons or centers is admissible to prove inadequate disclosure and causation.
3. Whether failure to advise of the option to obtain the same procedure from a more experienced surgeon or at a tertiary center may be considered as part of required disclosure of alternatives.
4. Whether admitting physician-specific experience and comparative outcome evidence improperly turns an informed-consent case into a negligent-treatment case or unfairly confuses the jury.

## Decision

- The Wisconsin Supreme Court reversed the court of appeals and reinstated the circuit court judgment on liability.
- The court held the trial court did not err by admitting evidence of Kokemoor’s limited experience with the procedure.
- The court held comparative morbidity and mortality evidence could be admissible to show material risk differences relevant to a reasonable patient’s decision.
- The court held evidence regarding the availability and advisability of referral to more experienced surgeons or tertiary centers could be considered in determining whether disclosure obligations were met.
- The case was remanded for further proceedings on damages only, leaving the jury’s liability findings intact.

## Legal Principles

- Wisconsin applies a prudent-patient standard under Wis. Stat. § 448.30: required disclosure is information a reasonable person in the patient’s position would consider significant in deciding whether to undergo treatment.
- Material disclosure may include provider- and setting-related information when it substantially affects the patient’s risk profile for the proposed treatment.
- Physician-specific experience may be material in appropriate cases, particularly for low-frequency, high-risk procedures where experience materially changes the likelihood of death or serious morbidity.
- Comparative outcome or risk statistics may be admitted when they help the factfinder assess material differences in risk a reasonable patient would want to know.
- “Reasonable alternatives” may include pursuing the same procedure from a more experienced practitioner or at a different facility when that choice materially affects risk.
- Relevant physician-specific evidence does not become inadmissible solely because it could also relate to negligent treatment; limiting instructions and the theory tried may prevent jury confusion.
- Informed-consent causation requires proof that a reasonable person in the patient’s position would have declined the proposed treatment by the defendant physician if properly informed.

## Conclusion

The court held that, under Wisconsin’s prudent-patient informed-consent statute, evidence of a surgeon’s limited experience, comparative outcome data, and the availability of more experienced alternative providers can be material and admissible when it bears on the risk information a reasonable patient would consider significant, and it reinstated the jury’s liability verdict while remanding for damages.


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