Schreiber Ex Rel. Krueger v. Physicians Insurance Insurance Co. of Wisconsin

MYSE, J.

(dissenting). I enthusiastically endorse the majority's discussion of the patient’s right to determine her or his course of treatment. However, I respectfully dissent from the majority's holding that under certain circumstances a doctor can be compelled to undertake a course of treatment the doctor believes is medically inadvisable. This is not, and cannot be, the law. It is neither supported by the informed consent statute nor sensibly grounded in public policy.

The informed consent statute is as follows:

Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:
*112(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.
(2) Detailed technical information that in all probability a patient would not understand.
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of consenting.

Section 448.30, Stats. This statute codified the standard set forth in Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975). See Martin v. Richards, 192 Wis. 2d 156, 173-74, 531 N.W.2d 70, 78 (1995).

The Wisconsin informed consent statute cannot be fairly read to compel either Figge or any other doctor to perform a treatment the doctor does not believe is medically indicated. In interpreting a statute our goal is to ascertain the intent of the legislature. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 281, 548 N.W.2d 57, 60 (1996). The first step of this process is to look at the language of the statute. Id. If the plain meaning of the statute is clear, we should simply apply that meaning to the facts before it. Id. at 281-82, 548 N.W.2d at 60.

The plain language of the informed consent statute merely requires the doctor to provide the patient with information sufficient to allow the patient to either consent or withhold consent to the doctor's proposed medical treatment. This much was said in Scaria. There the court stated:

*113The right to be recognized and protected is the right of the patient to consent or not to consent to a proposed medical treatment or procedure.
In short, the duty of the doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of disclosure to intelligently exercise his right to consent or to refuse the treatment or procedure proposed.

Id. at 12-13, 227 N.W.2d at 653-54. The plain language of the informed consent statute and Scaria demonstrate that there was no intent to require a doctor to perform medical treatment on demand. Figge should not be held liable for failing to do so here.

The majority attempts to create a right to treatment on demand in this case by relying on the fundamental notion of the right to bodily integrity. Quoting from Martin, the majority adopts the position that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body." This is rather ironic because the majority proceeds to compel a doctor to perform a treatment the doctor does not believe is medically indicated and does not want to do. In the instant case, Figge determined that "there was no real danger" as a result of Janice's upper abdominal pain, and therefore believed "that there was no real indication to proceed to a cesarean" when Janice requested it. Figge's refusal to perform the cesarean was based on his belief that it was bad medical practice to perform a cesarean based on complaints of pain alone. If his medical judgment concerning the appropriateness of a cesarean was incorrect, Figge may be liable in a medical malpractice *114claim. But Figge's refusal to carry out a treatment that he believes is contraindicated does not implicate the informed consent statute.

The informed consent statute requires the doctor to explain all viable, medical modes of treatment. This recognizes that there may be a number of feasible approaches to a specific medical problem. But simply because a medical procedure is feasible does not make such a procedure preferable or even desirable. We have recognized this in several cases by reaffirming the doctor's right to make recommendations and even persuade the patient to follow the doctor's superior medical judgment. See, e.g., Martin, 192 Wis. 2d at 181, 531 N.W.2d at 81 ("The doctor might decide against the alternate treatments or care, [she or] he might try to persuade the patient against utilizing them, but [she or] he must inform them when a reasonable person would want to know."). Of course, the patient is entitled to know about and even to elect other medical procedures that are available but not recommended. I do not believe, however, that this right encompasses the right to compel a given doctor to perform a specific treatment. The doctor should retain the right to refuse to follow a course of treatment that contravenes the doctor's opinion as to proper medical practice and procedure.

Contrary to the Schreibers' argument, affirming this right of the doctor does not correspondingly render meaningless the right of the patient to direct her or his treatment. If a doctor refuses to follow the patient's choice of treatment the patient remains able to seek another doctor willing to accept the choice of treatment. While I acknowledge that under certain circumstances a patient may not be able to effectively choose among all treatment options, there is nothing in *115the informed consent statute to suggest that a doctor must follow the patient's request in those cases. By refusing to include such a provision in the statute I believe the legislature intended to balance the doctor's right to control one's own medical practice with the patient's right to control one's own treatment.

I further believe that the majority decision is bad public policy. Such a decision can only work to raise additional complexities in an already complex system of legal entanglements with the patient-doctor relationship. By limiting its result to the facts, the majority gives little guidance to doctors with respect to this new duty. It is unclear when a doctor will have to follow a patient's demands for treatment, and the majority opinion establishes no criteria that will assist the doctor in making this determination. For all these reasons, I would hold that Figge violated no duty by refusing to perform the cesarean at the time it was requested.