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Wisconsin Informed Consent Law is Ill-Advised

Author Information (click to view)

Skeptical Scalpel

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last three years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 6400 followers on Twitter.

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Skeptical Scalpel (click to view)

Skeptical Scalpel

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last three years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 6400 followers on Twitter.

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Why not skip the history and physical examination by the doctor altogether and let the patient choose from an a la carte menu of diagnostic tests when he comes through the door?
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I normally wouldn’t do this but you need to see excerpts from an article in the Wisconsin State Journal to understand the nature of this case. I have abridged as much as possible.

Thomas Jandre was driving to a job site when the left side of his face started drooping. He began drooling, his speech became slurred and he felt dizzy and weak in his legs.

He went to the emergency room at St. Joseph’s Hospital in West Bend. Dr. Therese Bullis did a physical exam to rule out a stroke. She ordered a CT scan to rule out a hemorrhagic stroke. To check for an ischemic stroke, from a clot, she used a stethoscope to listen for unusual blood flow in his carotid artery. She diagnosed Jandre with Bell’s palsy, inflammation of a nerve that controls facial movement.

Eleven days later, Jandre had a massive stroke that caused permanent damage to the left side of his body. An ultrasound showed the carotid artery along his neck was 95 percent blocked.

Bullis was negligent in not telling Jandre he could have had a carotid ultrasound when she saw him, the Wisconsin Supreme Court ruled in April. The test might have led to treatments to prevent the stroke.

The supreme court affirmed an appeals court decision that upheld a $2 million jury award in 2008 to Jandre, now 57, whose stroke occurred in 2003. The jury said Bullis wasn’t negligent in her diagnosis of Bell’s palsy but found her negligent in her duty of informed consent because she failed to discuss the carotid ultrasound.

The decision “leaves physicians in the difficult position of not knowing how much information a physician should provide to a patient about tests for diagnoses already ruled out by the physician,” said a statement by three Wisconsin MD organizations.

The groups said the decision could drive up healthcare costs by requiring unnecessary tests. They’re calling for state legislation to clarify informed consent.

But Dr. Sheldon Wasserman, chairman of the state Medical Examining Board, said he agrees with the ruling. “You should give patients all the information they need and more,” he said.

Jim Weis, the Wausau attorney who represented Jandre, said if Bullis had conducted a “one-minute conversation” with Jandre about the ultrasound, “the stroke would have been avoided.”

A second article noted that the doctor was reprimanded by the state medical board and fined $300. It also says that the state legislature may introduce a bill to clarify the informed consent law.

Wow! I agree that the ED physician was not negligent in arriving at the wrong diagnosis. That can happen. It’s not negligence if you do everything right and come up with the wrong answer. According to the courts, her “negligence” was in not telling the patient that a carotid ultrasound could have been done.

Just how would a “one-minute conversation” with the patient have avoided the stroke? Would the patient then have had the option to demand the test? If that is so, why not skip the history and physical examination by the doctor altogether and let the patient choose from an a la carte menu of diagnostic tests when he comes through the door?

This case opens up a huge can of worms. Should all patients who are determined by an ED MD to not have appendicitis be told that they could have a CT scan and if that is negative, an ultrasound? Might as well throw in an MRI too, even though it has never been proven to be useful for that illness.

Will the state legislature solve the problem of informed consent brought up by this case? Maybe. The Wisconsin Assembly has passed a bill that would modify the informed consent law by saying that a reasonable physician does not have to tell a patient about other tests for conditions that have been ruled out.

However, the State Senate has not acted upon the bill yet.

Meanwhile, doctors in Wisconsin just might be ordering a few extra tests these days.

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last three years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 6400 followers on Twitter.

12 Comments

  1. You all make great points, but everyone seems to forget that most emergency departments cannot or do not have the capabilities of getting a STAT carotid ultrasound with a read back in a timely fashion. So someone who presents with ‘Bells palsy’ symptoms, has a negative head CT and is treated as such, is typically sent home. Maybe we should just make room reservations in the ED because ordering carotid US, echocardiograms, etc. would not only increase length of stays, but costs – unfortunately less than half of this country is paying for their own healthcare. In an ideal world, I would love to spend 30 minutes with every emergency patient, but unfortunately I have to intubate, insert lines, chest tubes, suture, and much to my demise…document; and perform other tasks as should be done in an emergency department. It is very unfortunate the events that occured to the said patient, but in no way should the physician have been penilized for not explaining the possiblity of having a carotid ultrasound. I ask all of the above to spend a day in a busy Trauma centered ED and let me know what reasonable is.

    Reply
    • Thanks for the very pertinent comments. Your points are all very well taken. It’s always easy to say what should have been done ideally, but rarely are these issues dealt with in the context of what was going on in real time. The ED MD may have been juggling several other patients. And you are so right about the availability of both the ultrasound and the reading.

      Reply
  2. It’s not a question of a one minute conversation regarding a carotid ultrasound-the matter at hand clearly reflects ineptitude to recognize a TIA and failure to follow the standard of care-which would be to admit, obtain the appropriate diagnostic studies, and seek the assistance of a neurologist if one is available. Patients presenting with TIAs deserve a brain MRI, an MR angiogram if the head and the neck, a TEE, a monitored bed during their hospitalization, and if a cause for their ailment is not established, outpatient cardiac monitoring to screen for an atrial arrhythmia, specifically Atrial fib/flutter, with a 21 day holter or a REVEAL device.

    Reply
    • You make some good points, but I’m sorry to tell you that the issue was not the failure to diagnose. It was the failure to tell the patient of his option to have a carotid US. If one does a complete exam and arrives at the wrong diagnosis, that is not necessarily malpractice.

      Reply
  3. I would have traditionally sided with a more human centric, liberal perspective however speaking to a few people in multiple related industries there needs to be another angle that is considered here.

    In the 1960s “Defensive Medicine” was born. Defensive Medicine is essentially, for those that do not know, Medical staff doing more “things” than they feel is necessary for the patient in order to protect the decisions they make. They estimate right now that a reduction in defensive medicine could result in a decrease of up to 1% of the total gross spending of healthcare in the country. This would be about, 26 billion dollars, and this is half of the malpractice spending which is 55 billion and rising.

    The other concern regarding providing information at the differential is that many of the tests and procedures that are offered to the patient, may/may not be covered by their particular insurance. Someone asked earlier, Would they do this for the VP, or the President? I would say yes, because, not to mince words, they can afford it and they probably have great medical insurance! So sure, if you have thousands of dollars sitting around, you can have lots of non-relevant tests done. You can go in for a cold and order a battery of examinations and then pay a massive bill, if that is what you want. That is a luxury that is available to some.

    For most people however, this is not an option. As cold as this may seem, it is a reality that needs to be faced. When we are given options of things to do, perhaps right next to that option should be the cost. A menu with no prices, why not select everything? But, we do not have unlimited funds. When we do not have this option we must rely on experts. We, the patient – we are not experts, no matter how many times we go to the internet. Perhaps if we saw that, for example procedure “x” will cost $15,000.00 and has only 3% of being relevant, we would think twice about our available options.

    We need to recognize that we do not know what we are doing, and we can’t afford to select every option available to us. We need to do away with defensive practices and let doctors once again do their jobs. This is not the humanist perspective, but I do feel it is a real perspective for the world we live in.

    Reply
    • Thanks for commenting. A recent paper has shown that even in states with caps on malpractice awards and other tort reforms, defensive medicine is still rampant. It would be very hard to get doctors to change.
      ***
      I agree with you that most patients are not capable of deciding what tests they need nor do they know the costs. My own daughter was referred for a “high-risk” ultrasound during her last pregnancy. It sounded like a good idea. She had the test and was chagrined to find that it cost $1900 plus $300 for a 2 minute visit with the maternal-fetal specialist to tell her that everything was OK. She had to pay for it out of her deductible. In retrospect, she would have declined to have it had she known its cost.

      Reply
  4. I think what the first poster was questioning is whether a VIP patient would be treated differently with every possible test thrown at them because any “mistake” or oversight would be on the 6 o’clock news.

    Reply
    • I agree. We all know that VIPs are treated differently, sometimes much to their detriment. The article did not say whether the ED MD had told the patient to follow up. My experience is that ED docs are fairly compulsive about that. The stroke didn’t happen until 11 days after the ED visit. An unanswered question is why didn’t the patient see a doctor during that time period? This suggests to me that he might not have gone for a carotid ultrasound even if it had been ordered. Then whose fault would it have been?
      ***
      It looks like a need to remind everyone that the ED doc was not found negligent for missing the diagnosis. The verdict was based on Wisconsin’s law that states that patients have to be told about other tests. Note: “Bullis was negligent in not telling Jandre he could have had a carotid ultrasound when she saw him, the Wisconsin Supreme Court ruled in April. The test might have led to treatments to prevent the stroke.” Note also the word “might.”

      Reply
  5. Bell’s palsy is usually gradual in onset.
    The red flag in this presentation is the abrupt onset of the symptoms. Dizziness and weak legs is not a presentation of Bell’s Palsy. Remember you can have a normal stethoscope carotid exam with significant disease.
    Therefore when reg flags present get the Carotid Duplex Ultrasound.

    Reply
    • Thank you for the comments. I do not treat Bell’s palsy, nor am I an ED MD. But I have heard of cases of Bell’s palsy developing overnight. The patient goes to bed fine and awakens with the problem.
      ***
      I would point out to you that the case was not about missing the diagnosis. It was about failing to inform the patient of other possible diagnostic tests that could have been done. Think about that. Would you want to have to tell every patient about every possible test that could be done for every encounter?

      Reply
  6. My question is, if the patient had been Barack Obama, Dick Cheney, Beyoncé, A famous athlete etc,, would the doctor have ordered the ultrasound?

    Reply
    • That’s an interesting question with quite a diverse roster of hypothetical patients. One could extrapolate your theory to say that everyone who sees a doctor with signs and symptoms of Bell’s palsy should have a carotid ultrasound.
      ***
      Again, the case is not about whether the test should or should not have been ordered. It was about whether the patient needed to be informed about the existence of other tests. If he was told about other tests, would the doctor then have to have explained how the test is done, it’s risks and benefits etc? And does this have to be done for every encounter with every patient who is seen? Do you really think this would have involved a “one minute conversation”? That does not seem reasonable to me. Could a carotid ultrasound even have been done at the time? Is a referral to a neurologist a reasonable option?

      Reply

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