Renae Wetterling (“Wetterling”) appealed from a summary judgment dismissing all of her claims against Sacred Heart Hospital of the Hospital Sisters of the Third Order of St. Francis and its insurer Preferred Professional Insurance Company. Wetterling argued that the circuit court erred by granting summary judgment on her negligence claim because a Sacred Heart nurse had a duty of ordinary care and he breached that duty by: (1) administering analgesic medication to her before the treating physician had an informed consent discussion with her; and (2) by failing to notify the physician that the medication had been administered before the informed consent discussion occurred. Wetterling argued that she was incapable of providing informed consent after receiving the medication, and that she would not have consented to the procedure that ultimately led to her serious injuries if she had not been medicated before the doctor sought her consent.
Wetterling had a small cavitary lesion on her left lung and, given its location, a pulmonary specialist recommended that Wetterling undergo a CT-guided biopsy to further evaluate it. The pulmonary specialist informed Wetterling that the procedure “was very safe” but might result in some localized bleeding.
Specifically, Wetterling alleged that Mark Southard, M.D. had negligently perforated her spleen while performing the CT-guided biopsy. She also alleged that Sacred Heart was liable under the doctrine of respondeat superior for the negligence of Southard and Sacred Heart employees. In a later amended complaint, Wetterling added a claim against Southard and Sacred Heart for failing to obtain Wetterling’s informed consent before the biopsy.
The Wisconsin Court of Appeals held in its Decision filed on September 12, 2023: “Even if we assume that the nurse had a duty of ordinary care and that he breached that duty, we conclude that Sacred Heart cannot be held liable for
Wetterling’s claimed lack of informed consent. Neither WIS. STAT. § 448.30 (2021-22), nor any other law of which we are aware creates a duty or liability on the part of individuals other than a patient’s treating physician to ascertain whether a patient is capable of providing his or her informed consent. Only the physician performing Wetterling’s procedure had the obligation to determine whether Wetterling had the mental capacity to provide her informed consent for the procedure. Thus, any negligence that might have occurred before the informed consent discussion is too remote, in a legal sense, from Wetterling’s injuries and is therefore barred by public policy, as reflected in § 448.30. Accordingly, we affirm the circuit court’s grant of summary judgment.”
Source Wetterling v. Southard, M.D., Appeal No. 2021AP1694.
If you or a loved one may have been injured as a result of medical negligence in Wisconsin, you should promptly find a Wisconsin medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Wisconsin medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in Wisconsin, or in your U.S. state, who may assist you.
Turn to us when you don’t know where to turn.