The Wisconsin Supreme Court today in a 6-0 opinion (Justice Annette Zielger did not participate) reversed a lower court decision that dismissed a medical malpractice claim against an emergency room physician.

The case, Bubb v. Brusky et al, 2009 WI 91, began when the patient (Richard Bubb) was transported to the emergency room after it appeared that he was having a stroke. After examining Bubb, the emergency room physician ordered a number of tests. The patient’s symptoms began to diminish while he was in the emergency room. Based on the test results and the patient’s improving conditions, the doctor determined that the patient suffered a transient ischemic attack (TIA). Unlike strokes, TIA symptoms frequently resolve themselves within 24 hours. Thus, after consulting a neurologist and based on the patient’s condition, Dr. Brusky told Bubb to take aspirin and discharged him from the hospital, instructing him to contact the neurologist in the morning.

The next day, Bubb scheduled an appointment with the neurologist for the earliest available appointment, which was 12 days later. However, the day after setting the appointment Bubb suffered a large-scale stroke which affected his brain and left him without the use of his left arm.

The Bubbs then filed a complaint against Dr. Brusky and the neurologist. Among other negligence claims, the Bubbs alleged that the emergency room physician was liable for failing to properly inform them of “additional diagnostic tests or alternate treatment plans.” During the trial, expert witnesses testified that there was a debate in the medical field over whether to use an alternative diagnostic method in similar situations, such as carotid Doppler ultrasounds.

At the close of evidence, the Bubbs submitted proposed jury instructions which included the question of whether the emergency room physician failed to give informed consent of additional diagnostic tests and alternate treatments. However, the trial court judge decided not to give the jury those specific instructions. At the end of the trial the jury returned a verdict of no negligence on the part of either doctor. The Bubbs appealed the trial court’s refusal to submit the instructions to the jury.

Writing for the majority, Justice David Prosser ruled that the lower court erred by failing to submit the informed consent jury instructions. Specifically, the court ruled that the Wisconsin’s statute (Wis. Stat. § 448.30) expressly requires a physician to inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments.

The court ruled that the plaintiffs provided sufficient evidence at trial to support such a claim. Thus, according to the court, the trial court erred in striking the jury instruction. As a result, the court reversed and remanded the case back to the trial court.