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

more care has not been shown to produce better results:
though patients may gravitate toward the seeming security
of ?more aggressive medical care,? patients in regions
favoring aggressive care tend to have poorer health
outcomes and lower satisfaction rates. 58 The quality of
medical care is not meaningfully predicted by its quantity,
nor does an influx of medical information result in
higher-quality patient experiences.
Fearing increased liability and anticipating disruptions to
their professional practice, physician groups? efforts to
revise Wis. Stat. §448.30 succeeded when Wisconsin
adopted a new informed consent statute in 2013.
Abandoning its prior reasonable patient standard, the
updated statute instead deferred to the reasonable
physician to determine informed consent, as well as
clarifying that physicians must no longer disclose
?information about alternate medical modes of treatment
for any condition the physician has not included in his or
her diagnosis at the time the physician informs the
patient.? 59 While professional custom may not reliably
dictate the most effective means of risk disclosure,
Wisconsin?s lawmakers ultimately agreed that a legal
remedy was the wrong prescription: ?[J]udges and juries
ought not [play doctor].? 60
Whose Reason Rules: State by State, Divergent
Standards
Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent
Since Canterbury v. Spence, two broad standards have
emerged by which informed consent cases are adjudicated
in the United States. Some states (about half) have
privileged patients? self-determination over professional
tradition by adopting a version of Canterbury?s reasonable
patient standard, which gauges the adequacy of physicians?
disclosure based on what a reasonable patient would
consider important to their medical decision.
61 62
Meanwhile, other states have decided against the
patient-centered standard, questioning its feasibility and
fairness. Such states have determined that a
physician-defendant?s disclosure should be judged against
the customary practices of fellow doctors in the
community, an approach known as the reasonable
physician or professional standard. The distinction
between these standards appears to tangibly influence the
outcomes of informed consent lawsuits: research has
demonstrated that states with a reasonable physician
standard are significantly less likely to rule in patients?
favor. 63
Indiana is one such state. In the case of Culbertson v.
Mernitz (1992), Patty Jo Culbertson?s cervix improperly
adhered to the wall of her vagina following a bladder
suspension and cryosurgery performed by Dr. Roland
Mernitz? a complication for which Culbertson underwent
subsequent surgery by another doctor. When Culbertson
filed an informed consent suit against Dr. Mernitz claiming
that he failed to disclose the surgery?s ?inherent risks and
complications,? Dr. Mernitz requested summary judgment
based on a medical review panel?s assessment of the
case. 64 Despite acknowledging Dr. Mernitz?s lack of
58. Elliott Fisher et al., ?The Implications of Regional Variations in Medicare Spending. Part 2: Health Outcomes and Satisfaction with Care,?
Annals of Internal Medicine 138, no. 4 (February 2003):
59. Wis. Stat. § 448.30, Informed consent.
60. Jandre, 813 N.W.2d 671.
61. Canterbury, 464 F.2d 787 (quoting Waltz & Scheuneman). (?In broad outline, we agree that ?[a] risk is thus material when a reasonable person, in
what the physician knows or should know to be the patient?s position, would be likely to attach significance to the risk or cluster of risks in deciding
whether or not to forego the proposed therapy.??)
62. Sawicki, 9. (?In the United States, jurisdictions are more or less evenly divided between a patient-based standard and a physician-based standard
for identifying the information that must be disclosed as part of the informed consent process.?)
63. Studdert et al., ?Geographic Variation in Informed Consent Law,? 115?117.
64. Culbertson v. Mernitz, 602 N.E.2d 99.
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