Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent
physician William Richards diagnosed her head injuries as
a concussion, noting ?the possibility of intracranial
bleeding.? 28 When Dr. Richards recommended to Martin?s
family that she remain at Fort Atkinson Memorial Hospital
(FAMH) for observation, he failed to mention that the
hospital had no neurosurgeons on staff and thus would be
incapable of treating a ?neurological complication such as
intracranial bleeding? should such a risk materialize. 29
Martin did in fact suffer an intracranial bleed during her
stay at FAMH, and a helicopter rushed her to the
calling that standard ?the very point of [Wis. Stat.
§448.30]?: The court stated, ?Here the doctor was
concerned about the possibility of an intracranial bleed.
When a reasonable person would want to know about an
alternative treatment or method of diagnosis such as a CT
scan or hospitalization in a facility with a neurosurgeon,
the decision is not the doctor?s alone to make.? 33 As such,
the court reasoned that Wisconsin physicians?disclosure of
?all alternate, viable medical modes of treatment? under
Wis. Stat. §448.30 must include available treatment
University of Wisconsin hospital in Madison where she options (and their material risks) for potential
underwent two emergency surgeries several hours later;
her injuries left her a ?partial spastic quadriplegic.? 30
complications related to the patient?s diagnosis. Indeed,
rather than being selectively filtered through a physician?s
professional judgment, Martin v. Richards established that
Martin and her family sued Dr. Richards for negligence,
a physician?s disclosure must contain all that a ?reasonable
and the applicability of their informed consent claim was
person would [or could] want to know,? including
debated extensively as the case moved through
treatments for statistically rare but serious complications
Wisconsin?s courts. After the Jefferson County Circuit
like intracranial bleeding. Yet, ?reasonable? people will
Court granted Dr. Richards? motion to dismiss the
inevitably desire different degrees of risk disclosure, and
informed consent claim, the Wisconsin Court of Appeals
physicians cannot possibly intuit the scope of each
reversed the circuit court?s dismissal and remanded the
case. 31 patient?s expectation.
The Wisconsin Supreme Court affirmed the appeals
court?s decision on the basis of informed consent, finding
Dr. Richards liable under the standard established by Wis.
Stat. §448.30. Having considered the risk of an intracranial
bleed, Dr. Richards claimed he did not believe Martin was
bleeding at the time he diagnosed her concussion, and thus
did not think she required care at a facility with a
neurosurgeon. In his argument before Wisconsin?s
Supreme Court, Dr. Richards posed the question, ?Why
should we inform the patient that we don?t think we should
do something?? 32 The Court responded by invoking the
reasonable patient standard established by Canterbury,
Wis. Stat. §448.30 and the precedent set by Martin
informed the Wisconsin Supreme Court?s decision in
Jandre v. Physicians Insurance Company of Wisconsin
(2012), which expanded physicians?disclosure duty even
further to include discarded diagnoses. Thomas Jandre was
evaluated by emergency room physician Therese Bullis
with symptoms of ?drooling, slurred speech and one-sided
facial droop, dizziness, and leg weakness?; after testing
Jandre for multiple types of stroke events (hemorrhagic
and ischemic strokes) and brain tumors, Dr. Bullis
diagnosed him with Bell?s palsy, a ?diagnosis of
28. Ibid., 74.
29. Martin by Scoptur v. Richards, 531 N.W.2d 74.
30. Ibid.
31. Martin by Scoptur v. Richards, 531 N.W.2d 75.
32. Ibid., 531 N.W.2d 80.
33. Ibid., 531 N.W.2d 80?81.
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