Do you agree with the court’s finding that the hospital had no legal
duty to ensure that Witt obtains informed consent from Mathias?
Explain.
Mathias, a patient of Dr. Witt’s at St. Catherine’s Hospital, delivered a
full-term son by cesarean section on February 2, 1993, while she was
under general anesthesia. In the operating room, Dr. Witt indicated that
he needed a particular instrument that would be used in a tubal ligation.
The nurses, Ms. Snyder and Ms. Perri, employees of St. Catherine’s,
looked at Mathias’s chart. Ms. Snyder informed Dr. Witt that she could
not find a signed consent form for the procedure. In deposition
testimony, Ms. Snyder stated that Witt replied, “Oh, okay.”
Dr. Witt performed a tubal ligation. Three days after the procedure a
nurse brought Mathias a consent form that had to be signed, telling
Mathias the form was “just to close up our records.” The nurse testified
in her deposition that she signed Ms. Perri’s name on that same consent
form and backdated it to February 2, the day the surgery was performed.
The trial court noted that these actions after the surgery were immaterial
to the issue of the hospital’s duty to Mathias. The trial court granted
summary judgment dismissing St. Catherine’s from the malpractice
action. Mr. and Ms. Mathias appealed the summary judgment,
contending that the hospital owed a duty to Mathias to prevent her
physician from performing a tubal ligation for which there was no signed
consent.
Issue
Did the hospital owe a duty to Mathias to prevent her physician from
performing a tubal ligation for which there was no consent? Did the trial
court err in granting summary judgment to St. Catherine’s?
Holding
The trial court’s grant of summary judgment was affirmed.
Reason
The duty to advise a patient of the risks of treatment lies with the
physician and not the hospital. This duty is codified in Wisconsin Statute
§ 448.30, which requires the following:
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:
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
This statute is the cornerstone of the hospital’s duty in this case. The
court noted that the legislature limited the application of the duty to
obtain informed consent to the treating physician. The Mathiases sought
to extend the duty of ensuring informed consent to the hospital.
The duty to inform rests with the physician and requires the exercise
of delicate medical judgment. It is the physician—not the hospital—who
has the duty to obtain informed consent. The surgeon, not the hospital,
has the education, training, and experience necessary to advise each
patient of the risks associated with a proposed procedure. The physician
is in the best position to know the patient’s medical history and to
evaluate and explain the risks of treatment options.
Discussion
1. Do you agree with the court’s finding that the hospital had no legal
duty to ensure that Witt obtain informed consent from Mathias?
Explain.
2. What issues do you see in another nurse’s decision to sign Perri’s
name on the consent form and then backdate it to February 2, 1993?