Justice Rebecca Bradley poses questions during oral arguments in the Wisconsin Supreme Court on Tuesday. (Screenshot/WisEye)
When does a doctor’s recommendation to a colleague become something their mutual patient should know about?
That was the question that lawyers for an obstetrician/gynecologist and one of her patients discussed before the Wisconsin Supreme Court Tuesday. The recommendation, which the ob/gyn doctor made to a surgeon who operated on the patient, led to the woman having her ovaries removed without her knowledge or consent.
Dr. Carol Neuman made the recommendation to a surgeon, Dr. Michael McGauley, who was to remove a section of Melissa Hubbard’s colon. Neuman was treating Hubbard for endometriosis and suggested to McGauley that he could take out her ovaries during the same procedure.
He did so, but Hubbard didn’t learn about that step — or that Neuman had recommended it — until afterward.
Hubbard sued Neuman, claiming that the doctor should have told her about the recommendation. Neuman’s lawyers told the Rock County circuit judge hearing the case that it should be dismissed because one doctor’s recommendation to another doctor didn’t violate any duty under Wisconsin law.
The judge denied the dismissal motion, and it was that decision that was at the center of Tuesday’s arguments in the Supreme Court.
David Pliner, Neuman’s lawyer, told the justices that if Neuman had issued a medical order or a prescription, or if the surgeon had been a direct employee, it might have fallen under Wisconsin’s informed consent law.
“Dr. Neuman had nothing more than, at most, a conversation with Dr. McGauley, saying, ‘Here’s what I recommend you do,’” Pliner said. It was not a prescription or an order, however, he said.
There are “no allegations that she had the authority to require him to do it, order him to do it,” Pliner said.
At one point, according to court documents that the justices referred to Tuesday, Neuman and McGauley had contemplated doing the surgery together. In the end, the ob/gyn observed the procedure but didn’t perform any part of it.
When it was his turn to present Hubbard’s case, her lawyer, Guy Fish, argued that it should be straightforward.
“Dr. Neuman was a treating physician up to and through the surgery, where she attended,” Fish said. “And she failed to disclose to Melissa Hubbard the recommendation that Dr. McGauley perform ovarian surgery upon her. Simply put, if Melissa had learned that recommendation before the surgery, she would have declined the surgery.”
Fish dismissed the distinction Pliner made between an order or prescription and a recommendation as “an argument of semantics.”
“I think that’s a misplaced analysis,” Fish said. “If the two doctors are discussing and [agree to a] recommendation or an order that a type of surgery is to be performed, I submit respectfully, the patient needs to be informed of that recommendation or prescription or order, so they can make the best, informed, fullest and timely decision on the care they’re going to receive.”
Justice Rebecca Bradley described the underlying allegations of the case as egregious, but questioned whether informed consent law was the appropriate instrument.
“This woman’s real complaint is the allegation that her ovaries were removed and no one told her they were going to remove her ovaries,” Bradley said.
She questioned the lower courts’ framing of the matter as a matter of informed consent. “So we’re talking about and I am trying to figure out how we got to this point. It appears that the circuit court decided to interpret the complaint as one stating a claim for informed consent,” Bradley said.
“But the complaint is not that she wasn’t advised of alternative modes of treatment and the risks and benefits of different modes of treatment,” Bradley said. “We go back to older common laws. It’s kind of a battery. If a doctor removes somebody’s body part without telling them that that is what they’re planning to do, that is a terrible invasion.”
Bradley also briefly raised the question of whether McGauley had been sued as well. Pliner said that the surgeon had been sued before Neuman was. That case was dismissed, but the reason for the dismissal was never explained or discussed in Tuesday’s Court session.
Bradley and other justices seemed wary of the implications of the appeals court decision.
Pliner argued that if it was affirmed, that could make Neuman’s recommendation, or other casual exchanges among medical professionals, subject to the informed consent law, to the detriment of medical care.
“What happens when physicians consult with each other?” Chief Justice Annette Ziegler asked Fish. “I mean, there may be a specialist who’s going to conduct a surgery and may want to consult with your GP over, you know, what else you may have going on. Would your GP have to have a separate meeting with the patient to disclose that the GP is going to give their opinion to the other surgeon?”
Fish said the specific facts of such conversations should govern whether informed consent is required. Doctor-to-doctor dialogue about the color of suture to use or whether to hold an operation in the morning or the afternoon would not rise to that level, he suggested.
“But this specific medical mode of a surgical removal of an ovary, I think, is mandated that that be disclosed to my client,” Fish said.
“The facts you’ve alleged for your client are egregious, right?” Rebecca Bradley said to Fish later in the arguments.
“Dr. McGauley is alleged to have removed her ovaries and not told her he was going to do that. That’s the big problem,” she said. “So setting aside the facts of your case, we have to be very careful about the pronouncement of law we make.”
The appeals court decision, Bradley said, has language “imposing a duty on all physicians, under all circumstances, to inform a patient about all reasonable alternative medical modes of treatment and the benefits and risks of treatment beyond the unique facts of your case, and that’s where we have to be very careful.”
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