(dissenting). The gravamen of the Martins' claim that Dr. Richards violated the "informed consent" law, sec. 448.30, Stats., is that he failed to inform the Martins of (a) the one-to-three percent possibility that Cheryl could develop a subdural hematoma as the result of her concussion, (b) the availability of a CAT scan as a means of watching for the possible onset of that condition, and (c) should the condition develop, there was no neurosurgeon available at *362the Fort Atkinson Hospital to aid in treating it. The majority holds as a matter of law that Richards violated the statute. I disagree. I do not consider this to be an informed consent case.
Section 448.30, Stats., is plainly-worded. It is an "informed-consent-to-íreaímení" statute. It requires physicians treating a patient to inform the patient of alternative "modes of treatment" and their risks and benefits, but does not require disclosure of, among other things, detailed or technical information the patient probably would not understand, risks of the proposed course of treatment that would be apparent or otherwise already known to the patient, or of "[e]xtremely remote possibilities . . .." Id. Nor does it require the physician to inform of alternate modes of treatment in emergency situations where the failure to provide immediate treatment would be more harmful than the treatment itself or "in cases where the patient is incapable of consenting" to the treatment. Id.
The statute is designed to ensure that a patient for whom a specific treatment is proposed receives information on the relative risks of that treatment and of the availability, and the benefits and risks, of alternate forms of treatment, so that his or her consent to, or refusal of, the proposed treatment will be informed.
The statute tracks earlier common law. See Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 12-13, 227 N.W.2d 647, 653 (1975), a pre-sec. 448.30, Stats., case setting forth the statutory elements in nearly identical language. The Scaria court summarized the physician's duty as one of "makfing] such disclosures as appear reasonably necessary ... to enable . . . the patient... to intelligently exercise his [or her] right to consent or to refuse the treatment or procedure proposed. " Id. at 13, 227 N.W.2d at 654 (emphasis added). *363The court has also said that the informed consent rule is based on a "theor[y] of liability for allegedly unauthorized medical treatment or therapy rendered by physicians to their patients." Trogun v. Fruchtman, 58 Wis. 2d 569, 596, 207 N.W.2d 297, 311 (1973) (emphasis added). Thus, it is "bottomed upon... negligence... in cases wherein it is alleged that the patient-plaintiff was not informed adequately of the ramifications of a course of treatment" and attributable to the physician's "failure to disclose particular risk information in connection with contemplated treatment, the patient's lack of knowledge of that risk and the adverse effects upon [the patient] which followed that treatment." Id. at 600, 604, 207 N.W.2d at 313, 315 (emphasis added) (footnote omitted).1
In this case, Dr. Richards examined Cheryl and made his diagnosis. Pursuant to that diagnosis, he decided upon a course of action: to keep her in the hospital, under observation, for the night and reevaluate her condition in the morning. And the jury *364specifically found that he was not negligent in doing so. If he had suggested that she be treated by a specific surgical procedure, or administration of drugs, he would have been obligated to inform the Martins of alternative treatments and their comparative risks and benefits vis-a-vis the proposed course of treatment.
But that is not the basis of his asserted liability in this case. The Martins' claim, and the majority appears to agree, that he was obligated by the informed-consent-to-treatment statute to advise them of the chances that Cheryl's condition could worsen, of the availability of diagnostic techniques to warn of the onset of such worsening, and further, that should her condition worsen, the Fort Atkinson Hospital did not have a neurosurgeon on its staff to see her.
Richards, however, was not proposing any further "treatment" for Cheryl which would trigger a duty under sec. 448.30, Stats., to provide the information necessary to allow the Martins to evaluate the risks attributable to that treatment and compare them to those involved in alternative treatments so as to allow them to make an informed choice of one over the other. And, as indicated above, I find it highly significant that the jury found no negligence on Richards' part with respect to his care and treatment of Cheryl.
I would affirm the judgment.2
The pattern "informed consent" jury instruction, Wis J I — Civil 1023.2, repeats the emphasis on treatment:
A physician who proposes to (perform an operation) (carry on a procedure) (treat a patient) must make such disclosures as will enable ... the patient to exercise [his or her] right to consent to, or to refuse, the (operation) (procedure) (treatment) proposed.
The doctor's disclosure must be sufficient to enable . . . the patient! ] to understand: his or her existing physical condition, the risks to his or her life or health which the (operation) (procedure) (treatment) imposes, and the purposes and advantages of the (operation) (procedure) (treatment).
The doctor must inform the patient whether the (operation) (procedure) (treatment) proposed is ordinarily performed in the circumstances confronting the patient, whether alternate procedures approved by the medical profession are available, what the outlook is for success or failure of each alternate procedure, and the risks inherent in each alternate procedure. (Emphasis added.)
Because I believe the "informed consent" provisions of sec. 448.30, Stats., are inapplicable, I would not reach the "cause" issues discussed in the majority opinion. And while, in my opinion, the trial court did not exceed its discretion in declining to allow Dr. Sachs' deposition in evidence, the majority's harmless error determination reaches the same result.