Petition for Writ of Certiorari — Physicians Insurance Co. of Wisconsin v. Schreiber ex rel. Krueger

Supreme Court brief1999

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Text

Supreme Court, U.g,

PILED

99 28 JUN 301999

No.

ns an ee cena

IN THE

Supreme Court of the United States

PHYSICIANS INSURANCE COMPANY OF WISCONSIN;

PAUL K.H. FIGGE, JR., M.D.; WISCONSIN PATIENTS

COMPENSATION FUND,

Petitioners,

KIMBERLY SCHREIBER, a minor by her guardian ad litem,

JOHN KRUEGER; GERALD SCHREIBER and JANICE

SCHREIBER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY J. STRATTNER

Counsel of Record

PAUL J. KELLY

LInDA V. MEAGHER

SCHELLINGER & Doy_Le, S.C.

Attorneys for Petitioner

Wisconsin Patients

Compensation Fund

445 South Moorland Road

Suite 450

P.O. Box 464

Brookfield, WI 53008

(414) 785-0200

153350 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

5 RN

QUESTION PRESENTED

Does the Wisconsin Supreme Court decision in this

proceeding violate Dr. Figge’s right of self-determination,

which is a constitutionally protected liberty interest under

the Fourteenth Amendment to the United States

Constitution, by forcing him to perform a procedure that

he did not believe was medically appropriate?

LIST OF PARTIES

Petitioner Wisconsin Patients Compensation Fund is a

defendant below. Physicians Insurance Company of

Wisconsin and Paul K.H. Figge, Jr., M.D., join in the

petition and are defendants below. The State of Wisconsin

and Employers Health Insurance Company are defendants

below, but were not party to the appeal in the Wisconsin

appellate courts.

Respondents Kimberly Schreiber and her parents,

Janice and Gerald Schreiber, are the plaintiffs below.

STATEMENT PURSUANT TO RULE 29.6

The petition accurately lists the parties to the

proceeding.

Petitioners have no parent corporations and no publicly

held company owns 10% or more of their stock.

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TABLE OF CONTENTS

Page

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Statement Pursuant to Rule 29.6 ............... ll

se ad wae bee ut bab és kee eeve cs ili

Table of Cited Authorities .................... vi

Bee OF ABROMEICES 2... occ ccc cccccscccess Vili

ee en ous badd tan ods l

Statement of Jurisdiction ..................... l

Constitutional Right Involved ................. 2

Co grr 2

ae ee dw ius wa buen 2

B. Factual Background ................... 3

C. Summary of Proceedings Below ......... 7

1. Trial Court’s Decision. ............. 7

2. Decision of the Wisconsin Court of

ES ae wn ase px Vo och eee ae 9

Contents

Decision of the Wisconsin Supreme

RM Keech du toVerecbaseieclti:

Reasons for Granting the Writ .................

Il.

Doctors, As Well As Patients, Have A Right

To Self-Determination As A Constitutionally

Protected Liberty Interest. ..............

The Right to Self-Determination

Protects the Integrity of One’s Own

SE Sxtedacitensedeeieesiene,

The Right of Self-Determination

Protects a Wisconsin Doctor, as Well as

Patients, From Being Compelled to Do

Something Against His or Her Will. ..

Informed Consent Law Should Not Compel

A Doctor To Perform A Procedure That Is

Not Medically Appropriate. .............

Dr. Figge Risked Committing Medical

Malpractice By Proceeding With Mrs.

Schreiber’s Demands. ..............

Dr. Figge Will Not Be the Only

Wisconsin Doctor Who Loses His Right

to Self-Determination...............

Page

Contents

Page

C. The Supreme Court Decision Compels

the Doctor to Perform Whatever

Procedure is Demanded, as Long as It is

a Viable Medical Option. ........... 19

D. Withdrawal as the Physician Is Not A

Possibility For Avoiding the Problem.

LGdeh ceva Ce ueseeaee ieee 22

CE cv. onnivebdetiacs see eee 23

TABLE OF CITED AUTHORITIES

Page

Cases:

Akron v. Akron Center for Reproductive Health, Inc.,

GES U.S. SUG CTMeee ss 440s0eeneieecueeeeus 15, 16

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972),

cert. denied, 409 U.S. 1064 (1972) ........... 16

Cruzan v. Missouri Dep't of Health, 497 U.S. 261

CSeED «x30000 00645500 Cdr ee 14, 15, 16

Hurtado v. People of California, 110 U.S. 516

GUGUNEE 6.055.6490005400550 ee 15

Ingraham vy. Wright, 430 U.S. 651 (1977) ........ 15

Maher v. Roe, 432 U.S. 464 (1977) ............. 15

Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d

POUIPOEE <62s00ebr ent 3, 10

Nowatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d

SOS CEOOUE sok ces Geaeeneeeu 20

Roe v. Wade, 410 U.S. 113 (1973) .............. 16

Rust v. Sullivan, 500 U.S. 173 (1991) ........... 15

Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis.

2d 1, 227 N.W.2d 647 (1975) ............... 3, 10

vil

Cited Authorities

Page

Schmerber v. California, 384 U.S. 757 (1966) .... 16

Union Pac. R. Co. v. Botsford, 141 U.S. 250

SE be cedeedus ba Cae eee ue otra 15

Washington v. Harper, 494 U.S. 210 (1990) ...... 16

Winston v. Lee, 470 U.S. 753 (1985) ............ 16

Statutes:

Wisconsin Statutes:

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SS ho oo kare Ge wedivec ieee l

Se Gee 4 0k nods kee ee l

Se ns FAY Sica ver eerdsdskascewieince 2

Wisconsin Administrative Code, sec. Med.

8 PR ar ree onan gh = ans 20

United States Constitution:

Fourteenth Amendment ................ i, 2, 14, 15, 16

Other Authority:

Random House Unabridged Dictionary 972 (2d ed.

WEE: Gwe hdadoeeuduwiesecuree ce ececed 20

vill

TABLE OF APPENDICES

Appendix A — Opinion Of The Supreme Court Of

Wisconsin Dated And Decided January 26,

WT 3 esa ges de oacieais ve oboe rite eke

Appendix B — Opinion Of The Wisconsin Court

Of Appeals Dated And Decided February 17,

EEE Re Ee EEOC EPR rae

Appendix C — Amended Order For Judgment And

Judgment Of The Circuit Court For The State Of

Wisconsin, Oneida County Dated November 20,

1996 And Filed November 22, 1996 ..........

Appendix D — Decision, Findings Of Fact,

Conclusions Of Law And Judgment Of The

Circuit Court For The State Of Wisconsin, Oneida

County Dated September 24,1996 ...........

Appendix E — Order Of The Wisconsin Supreme

Court Denying Motion For Reconsideration Dated

ee fe RO oad Kod oe ee eect tue ele ee

Page

22a

44a

47a

]

Petitioner the Wisconsin Patients Compensation Fund,'

respectfully requests that a Writ of Certiorari be issued to

review the opinion of the Wisconsin Supreme Court entered

in this proceeding.

OPINIONS BELOW

The opinion of the Wisconsin Supreme Court is

reported at Schreiber v. Physicians Insurance Co., 223 Wis.

2d 417, 588 N.W.2d 26 (1999) and reprinted in the

Appendix hereto at App. A, page la. The order of the

Wisconsin Supreme Court denying the motion for rehearing

is not published. It is reprinted in the Appendix hereto at

App. E, page 71a.

The opinion of the Wisconsin Court of Appeals is

reported at Schreiber v. Physicians Insurance Co., 217 Wis.

2d 94, 579 N.W.2d 730 (Ct. App. 1998) and is reprinted in

the Appendix hereto at App. B, page 22a. The circuit court

decision and order for judgment are not published. However,

they are reprinted in the Appendix hereto at App. C and D.

STATEMENT OF JURISDICTION

On January 26, 1999, the Wisconsin Supreme Court

issued its opinion in this proceeding. On April 7, 1999, the

supreme court denied a timely petition for rehearing.

1. The Wisconsin Patients Compensation Fund is a statutorily

created entity that is required to pay that portion of any medical

malpractice claim against a participating health care provider,

which exceeds the statutorily mandated primary liability insurance

policy. See sec. 655.27(1), Wis. Stats. In this case, the Fund is

required to pay all damages in excess of $300,000. See sec.

655.23(4), Wis. Stats. Damages have not been decided, but given

the claimed injuries, they will far exceed the primary limits.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1257.

CONSTITUTIONAL RIGHT INVOLVED

The Wisconsin Supreme Court decision in this

proceeding significantly interferes with Dr. Figge’s right

to self-determination. The right of self-determination is a

liberty interest protected by the Fourteenth Amendment to

the United States Constitution. Section 1 of the Fourteenth

Amendment to the United States Constitution provides in

relevant part: “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law. .. .”

The supreme court decision holds that Dr. Figge, and

all Wisconsin physicians in the future, have a duty to

perform medical procedures, and provide medical

treatments, on demand. Under the guise of informed consent

law, Wisconsin now makes it mandatory for a doctor to

physically provide any viable medical treatment, even when

the doctor believes that the treatment is not appropriate

under the circumstances or is opposed to performing the

procedure for some other reason. The decisional law strips

Wisconsin doctors of their right of seif-determination. If a

patient demands a procedure, the doctor must perform it or

face liability under Wisconsin’s informed consent law.

~ STATEMENT OF THE CASE

A. Introduction

To satisfy Wisconsin’s informed consent law, before

the supreme court’s decision in this case, Wisconsin

| 7

physicians were required to inform their patients of the

advantages and risks of a procedure, the viable options, and

to perform only those procedures for which a patient had

consented. See sec. 448.30, Wis. Stats; Martin v. Richards,

192 Wis. 2d 156, 531 N.W.2d 70 (1995); Scaria v. St. Paul

Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647

(1975). Now, the informed c_nsent law, under the decision

in this case, requires Wisconsin doctors to provide treatment

on demand, in addition to obtaining an informed consent.

Doctors no longer have the right of self-determination,

when faced with a demand from a patient. A doctor may no

longer decide what procedure is medically appropriate in

his or her judgment. Instead, the doctor must perform the

demanded procedure as long as it is a viable medical option,

or face liability under the informed consent law.

While a patient has a right of bodily integrity, so has a

physician. A patient has a right to refuse or receive medical

treatment. A doctor should also have a right to decide

whether or not to perform a procedure, or to provide a

specific treatment. Unfortunately, the Wisconsin Supreme

Court decision takes away that right.

B. Factual Background

The factual issue in this case was whether or not the

defendant Dr. Figge obtained an informed consent from

plaintiff Janice Schreiber to proceed with an attempted

vaginal delivery, as opposed to a cesarean section. (At the

time of trial, there was no medical malpractice claim. The

Schreibers were not alleging that Dr. Figge misdiagnosed

Mrs. Schreiber’s condition, nor were they alleging that he

had breached the standard of care by failing to perform the

cesarean sooner).

On June 25, 1988, the plaintiff, Janice Schreiber, gave

birti: to her third child, Kimberly. See App. D, at 49a-50a.

Before giving birth to Kimberly, Mrs. Schreiber had

delivered two other children, both by cesarean section. See

Schreiber, 217 Wis. 2d at 98; App. B at 23a. The first

cesarean was performed on November 9, 1981, because of

insufficient progress in labor after seventeen hours. /d.; App.

D, at 48a. A second cesarean was performed to deliver Mrs.

Schreiber’s second child, on February 13, 1984, because at

that time, it was the standard of care to perform an elective

repeat cesarean (in accordance with the “ ‘once a cesarean

always a cesarean’ rule.”) Schreiber, 223 Wis. 2d at 421;

App. A, at page 3a. Dr. Figge served as Mrs. Schreiber’s

obstetrician during both pregnancies and performed both

cesareans. Jd. at 420; App. A at 2a.

Satisfied with Dr. Figge’s care, Mrs. Schreiber returned

to him when she became pregnant for the third time in 1987.

In 1987 and 1988, the prevailing medical research and

practice suggested that a vaginal birth after cesarean

(VBAC) was no more dangerous than undergoing another

cesarean birth. /d. at 421; App. A at 3a. In fact, the research

showed that the VBAC presented less risk than the

cesarean.’ Jd.

During Mrs. Schreiber’s prenatal care, she and Dr.

Figge discussed the possibility of a vaginal delivery as an

alternative to a third cesarean. Jd. (The medical records

2. Medical literature at that time suggested that physicians

encourage their patients to have a vaginal birth after cesarean

(VBAC), because vaginal deliveries had fewer risks than a cesarean;

that 60 percent of women who attempted vaginal delivery were

successful; and the risk of uterine ruptures (the fear previously

prompting repeat caesareans) had shown that the right of uterine

ruptures were successful.

reflect that the two discussed the topic on at least four

separate occasions during Mrs. Schreiber’s appointments.)

After being given a choice between the cesarean and a

vaginal delivery, Mrs. Schreiber chose the vaginal delivery.

Id. Mrs. Schreiber testified that Dr. Figge offered her the

option but did not attempt to influence her decision either

way. The trial court concluded that Mrs. Schreiber had given

her informed consent to the VBAC, before her labor began.

Schreiber, 217 Wis. 2d at 101; App. B at 27a. This finding

was not appealed. See id.; See also Schreiber, 223 Wis. 2d

at 428; App. A at 1 la.

Mrs. Schreiber began experiencing labor pains in the

evening of June 24, 1988. App. D at 49a. She was admitted

to the hospital at about 4 a.m. on June 25. /d. Dr. Figge

first saw Mrs. Schreiber at the hospital, in the corridor, four

hours later, at about 8:00 a.m. At that time, Mrs. Schreiber

told Dr. Figge that she had changed her mind and that she

wanted a cesarean. /d. Dr. Figge told Mrs. Schreiber that

they should return to her room so that he could examine

her. Jd.

Because the progress in Mrs. Schreiber’s dilation was

limited, Dr. Figge performed an amniotomy, the breaking

of the mother’s amniotic fluid sac, to help the labor progress

more efficiently. Jd. Shortly thereafter, Mrs. Schreiber began

experiencing severe upper epigastric pain. /d. She was given

pain medication at 9:30 a.m., which provided limited relief.

Id.

At 1:00 p.m., Dr. Figge returned to Mrs. Schreiber’s

room and examined her. /d. He also attempted to ascertain

the source of Mrs. Schreiber’s pain. Dr. Figge concluded

that the baby was not in distress. The amniotic fluid was

clear, with no evidence of a bleed. Mrs. Schreiber’s

abdomen was soft, and her uterus was not tender. Mrs.

Schreiber’s pain was not in the area of her uterus. Given

the symptoms, Dr. Figge did not believe that Mrs. Schreiber

had a ruptured uterus.’ Dr. F igge concluded that neither Mrs.

Schreiber’s uterus nor her placenta was the source of the

pain. He advised Mrs. Schreiber of his conclusion. Mrs.

Schreiber testified that she again asked for a cesarean. /d.

at 49a. Dr. Figge told Mrs. Schreiber to give the vaginal

delivery more time. Jd.

Mrs. Schreiber again requested a cesarean and,

according to Mrs. Schreiber, Dr. Fi gge responded something

to the effect of “If I gave every woman a cesarean who was

in labor, they would all want one.” Schreiber, 223 Wis. 2d

at 422; App. A at Sa. Mrs. Schreiber claims that she stopped

talking due to Dr. Figge’s comment, which she perceived

as brusque and which also hurt her feelings.

At about 1:45 p.m., Dr. Figge returned to Mrs.

Schreiber’s room. Schreiber, 223 Wis. 2d at 423; App. A at

5a; App. D at 64a. He told her that her contractions were

not strong enough. He also advised her that he would be

administering Pitocin, a drug which stimulates effective

labor, to augment the labor process. Dr. Figge told Mrs.

Schreiber if the labor did not progress with the Pitocin, he

would then perform a cesareans.

3. Ifa patient has a uterine rupture, the uterus itself would be

tender. Also, the leakage of fluid or blood into the abdominal cavity

would result in the abdomen feeling hard. Mrs. Schreiber did not

show these symptoms. If the placenta was separating from the

uterus, the early symptom would be pain near the uterus, which .

Mrs. Schreiber did not exhibit. Some women in labor complain of

pain not associated with contractions, and the cause is not always

discovered. App. D at 66a.

Dr. Figge testified that he thought Mrs. Schreiber had

agreed with his plan and recommendation. Mrs. Schreiber

did not refuse the treatment. Pitocin was started and

administered at a low level at 1:48 p.m. The dose was

increased every 20 minutes, and by 3:00 p.m., Mrs.

Schreiber was receiving 8 milliunits of Pitocin. The

maximum dose allowable was 20 milliunits.

Dr. Figge examined Mrs. Schreiber at 2:45. Her

abdomen remained soft, and she did not have tenderness

near her uterus. She did, however, continue to complain of

epigastric pain.

At 3:00 p.m., Mrs. Schreiber received an epidural

anesthetic. At 3:40 p.m., the fetal heart rate dropped. See

id. at 423; App. A at 5a. This required an emergency

cesarean shortly after 4 p.m. Jd. Kimberly Schreiber was

born a spastic quadriplegic. Jd.

C. Summary of Proceedings Below

The Schreiber’s initial claim against Dr. Figge alleged

both medical malpractice and a violation of the informed

consent statute. App. D at 50a. Before trial, however, the

Schreibers dropped the malpractice claim. Jd. Therefore,

the issue was not whether or not Dr. Figge’s conduct was

appropriate, but rather whether or not Mrs. Schreiber had

given her informed consent.

1. Trial Court’s Decision.

The parties stipulated to a court trial on liability on the

informed consent issue. (The parties also stipulated that had

a cesarean been performed before 3:29 p.m., Kimberly’s

injuries would not have occurred). Schreiber, 223 Wis. 2d

at 423; App. A at Sa.

The circuit court ruled in favor of Dr. Figge. The circuit

court found that Mrs. Schreiber had given her informed

consent to a VBAC, that nothing had occurred during the

course of Mrs. Schreiber’s labor that altered the labor to

require a new consent, and that a reasonable person in the

position of Mrs. Schreiber would have followed Dr. Figge’s

advice and continued with labor (which is exactly what Mrs.

Schreiber had done). App. D at 60a and 69a-70a. The trial

court’s findings required the dismissal of the plaintiffs’

claims.

The trial court, in its opinion, pointed out the

complexities of the case:

This has been an unusually difficult case,

primarily because of the blurring of the lines

between diagnosis or medical management on

the one hand and informed consent on the other.

Id. at 52a. (The opinion of the Wisconsin Supreme Court

ultimately blurred the lines between the two separate and

distinct theories of liability).

The circuit court concluded that “once the procedure

elected has been initiated, .. . a request for a change does

not thereby require an informed consent discussion. At [that]

point the election has been made and the procedure in

progress.” Jd. at 62a. As Dr. Figge testified, “his duty was

to manage her labor and to help her achieve her goal as

long as it was safe.” Jd.

[Following an informed consent to a specific

treatment procedure, once the procedure has

commenced, the duty of the doctor is to seek to

achieve its goal, but if the situation changes to

increase the risks presented to the patient and

there are alternative, viable medical modes of

treatment available, then a renewed [informed

consent] discussion . . . needs to take place.

Id. at 63a. Since Mrs. Schreiber had been informed of the

risks and advantages of the VBAC, and had consented to

it, the informed consent law was satisfied. Nothing new or

different had occurred during the labor that had not been

discussed during the original informed consent discussion

between Mrs. Schreiber and Dr. Figge. See id. at 66a. Mrs.

Schreiber, before the procedure began (i.e. the vaginal

delivery) had been advised of the risks, and complications.

(The issue of a violation of the standard of care, for not

performing the procedure requested by the plaintiff, or for

misdiagnosing the condition, is a different issue. That

involves the standard of care under the circumstances. It

does not involved the doctrine of informed consent. See id.

at 67a).

2. Decision of the Wisconsin Court of Appeals.

The Schreibers appealed the trial court’s judgment,

which had dismissed their informed consent claim. On

appeal, as in the trial court, Dr. Figge, his insurer and the

Fund [hereinafter collectively referred to as “Dr. Figge”’]

argued that requiring a physician to perform a surgery

demanded by the patient interferes with the physician’s right

to self-determination. The physician should not be

compelled against his or her will to perform a procedure,

or provide medical treatment, that the doctor does not wish

to perform or provide.

On February 17, 1998, the Wisconsin Court of Appeals

issued its opinion, which reversed the trial court judgment.

See App. B at 22a; Schreiber, 217 Wis. 2d 94, 579 N.W.2d

730 (Ct. App. 1998). In a two to one decision by the three

member court, the majority of the court of appeals held that

Dr. Figge had violated the informed consent law by not

performing the cesarean when requested by Mrs. Schreiber.

One of the three court of appeals’ judges, Judge Myse,

wrote a dissenting opinion. See Schreiber, 217 Wis. 2d at

111 (Myse, J., dissenting); App. B at 38a. Judge Myse

concluded that the majority decision violated Dr. F igge’s

right to self-determination. See Jd. at 113; App. B at 41a.

Judge Myse pointed out that Wisconsin’s informed consent

statute provides that:

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 is to inform the patient. . . .

Id. at 111; App. B at 39a (quoting sec. 448.30, Wis. Stats.)

See also Martin v. Richards, 192 Wis. 2d 156, 173-74, 531

N.W.2d 70 (1995); Scaria v. St. Paul Fire & Marine Ins.

Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975). Judge Myse

also noted that “[t]he Wisconsin informed consent statute

cannot be fairly read to compel either F igge or any other

doctor to perform a treatment the doctor does not believe is

medically indicated.” Jd. at 112; App. at 40a.

Judge Myse further noted that “[t]he plain language of

the informed consent statute merely requires the doctor to

provide the patient with information sufficient to allow the

patient to either consent or withhold consent to the doctor’s

proposed medical treatment.” Jd. “The plain language of

the informed consent statute and [the common law]

demonstrate that there was no intent to require a doctor to

perform medical treatment on demand. Figge should not be

held liable for failing to do so here.” Jd. at 113; App. B at

40a. Judge Myse reasoned that the court of appeals’ decision

compelled “‘a doctor to perform a treatment the doctor does

not believe is medically indicated and does not want to do.”

Id. at 113; App. B at 41a.

The dissenting opinion also highlighted the problem

with the rule adopted here:

Figge’s refusal to perform the cesarean was

based on his belief that it was bad medical

practice to perform a cesarean based on

complaints of pain alone. If his medical judgment

concerning the appropriateness of a cesarean was

incorrect, Figge may be liable in a medical

malpractice claim. But Figge’s refusal to carry

out a treatment that he believes is contraindicated

does not implicate the informed consent statute.

Id. at 113-14 (App. B at 41a).

After a complete informed consent conference during

her prenatal care, Mrs. Schreiber chose a VBAC as the

course of treatment for her delivery, instead of a repeat

cesarean. Given Mrs. Schreiber’s decision, Dr. Figge

proceeded as he would with any other patient who had

chosen that option. Dr. Figge believed, in his medical

judgment, that it was inappropriate to perform a cesarean

based upon pain alone. Dr. Figge could be held liable for

medical malpractice if his medical judgment concerning the

appropriateness of a cesarean was incorrect. /d.; App. B at

41a. However, Dr. Figge’s decision not to perform a

procedure that he believes is contraindicated “does not

implicate the informed consent statute.” /d. at 114; App. B

at 41a. Judge Myse correctly pointed out that the informed

consent law obligates a physician to explain all viable,

medical modes of treatment. Jd. “This recognizes that there

may be a number of feasible approaches to a specific

medical problem. But simply because a medical procedure

is feasible does not make such a procedure preferable or

even desirable.” /d.; App. B at 41a-42a. “The doctor should

retain the right to refuse to follow a course of treatment

that contravenes the doctor’s opinion as to proper medical

practice and procedure.” /d.; App. B at 42a. Any other result

places the doctor in the position of violating the informed

consent law, by not performing the procedure demanded,

or committing medical malpractice, by proceeding with the

demanded procedure.

3. Decision of the Wisconsin Supreme Court.

Dr. Figge appealed the court of appeals’ decision to

the Wisconsin Supreme Court. There, as in the court of

appeals, Dr. Figge argued that a rule requiring him to

perform a procedure, or provide treatment, that he did not

believe should be performed, violated his self-determination

rights. The supreme court, however, issued a decision that

did not address the violation of Dr. Figge’s right to self-

determination.

In its decision, the Wisconsin Supreme Court held that

Dr. Figge had violated the informed consent law. Contrary

to the circuit court’s findings, the supreme court found that

« OO eee See ere *

Mrs. Schreiber had withdrawn her consent to the VBAC,

while in labor. See Schreiber, 223 Wis. 2d at 430; App. A

at 13a. The supreme court further found that the withdrawal

of consent both removed Dr. Figge’s authority to continue

with the VBAC and “obligated him to conduct another

informed consent discussion.” Jd. “The function of

withdrawal, in effect, places [Mrs. Schreiber] and [Dr.]

Figge in their original position-a physician, a patient and a

series of options for treatment. It creates a blank slate on

which the parties must again diagram their plan.” /d. at 431;

App. A at 14a. The supreme court did not address the fact

that Dr. Figge, in his own medical judgment, believed that

a cesarean was not an appropriate course for pain alone.

(The fact that the cesarean may or may have remained a

“viable” option during the course of labor was not relevant

to that issue).

The supreme court included a “cautionary note” in its

opinion.

[T]his opinion should not be interpreted as

creating a patient’s right to demand any treatment

she desires. Further, this opinion should not be

interpreted as requiring physicians to perform

procedures they do not consider medically

viable, procedures for which they lack the

appropriate expertise, or procedures to which

they are morally opposed.

Unfortunately, the concerns addressed in the “cautionary”

comment are precisely the result reached by the court.

The supreme court’s decision blurs the line between a

claim of informed consent and a claim of medical

negligence. In so doing, it took away Wisconsin doctors’

right of self-determination. Now, when faced with a demand

for a specific treatment, the doctor must perform it.

The Fund filed a timely motion for rehearing with the

supreme court. It was denied.

REASONS FOR GRANTING THE WRIT

The Wisconsin Supreme Court’s decision is bad public

policy. Not only does it significantly interfere with Dr.

Figge’s right of self-determination, it has dire consequences

for all physicians in Wisconsin. Wisconsin doctors, under

the decisional rule, are compelled to physically perform a

procedure, or to provide medical treatment, simply because

the patient demands it. The supreme court’s decision

significantly interferes with a doctor’s constitutionally

protected right of self-determination.

I. DOCTORS, AS WELL AS PATIENTS, HAVE A

RIGHT TO SELF-DETERMINATION AS A

CONSTITUTIONALLY PROTECTED LIBERTY

INTEREST.

This lawsuit began as a discussion of patients’ rights.

Ironically, it resulted in stripping doctors of their rights.

Dr. Figge’s right to self determination was taken away.

The right of self-determination mandates that no court,

government or entity should substitute its judgment for that

of another person’s judgment with regard to that person’s

own bodily integrity. The right to self determination is

rooted in the liberty right of the Fourteenth Amendment to

the United States Constitution. Cruzan v. Missouri Dep't

of Health, 497 U.S. 261, 269 (1990). The Fourteenth

~ ON ee a eR, Dale Vie

Amendment provides that no State shall “deprive any person

of life, liberty, or property, without due process of law.”

The right to self-determination is an outgrowth of the

historic liberty interest in personal security and bodily

integrity. See Ingraham v. Wright, 430 U.S. 651, 673 (1977);

Union Pac. R. Co. v. Botsford, 141 U.S. 250, 252 (1891). It

is a constitutionally protected autonomy right. Each man

or woman is considered to be master of his or her own body.

A. The Right to Self-Determination Protects the

Integrity of One’s Own Body.

As early as 1884, the Supreme Court recognized that

the liberty right of the Fourteenth Amendment protected

the integrity of one’s own body. Hurtado v. People of

California, 110 U.S. 516, 536 (1884). In 1891, the Supreme

Court explicitly stated that “ ‘[n]o right is more sacred, or

is more carefully guarded, by the common law, than the

right of every individual to the possession and control of

his own person, free from all restraint or interference of

others, unless by clear and unquestionable authority of

law.’ ” Cruzan, 497 U.S. at 269 (quoting Union Pac., 141

U.S. 250, 251 (1891)). “[O]ur notions of liberty are

inextricably entwined with our idea of physical freedom

and self-determination.” /d. at 287 (O’Connor, J.,

concurring). “ ‘Liberty,’ if it means anything, must entail

freedom from governmental domination in making the most

intimate and personal of decisions.” Rust v. Sullivan, 500

U.S. 173, 216 (1991) (quoting Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416, 444 (1983); Maher

v. Roe, 432 U.S. 464, 473 (1977)).

The Supreme Court has recognized that a person has

the right to consent to and refuse medical treatment, which

is a liberty interest nght of self-determination. See Cruzan v.

Missouri Department of Health, 497 U.S. 261, 278 (1990);

Washington v. Harper, 494 U.S. 210, 221-222 (1990). See also

Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972),

cert. denied, 409 U.S. 1064 (1972) (“[t}he root premise is the

concept, fundamental in American jurisprudence, that ‘[e]very

human being of adult years and sound mind has a right to

determine what shall be done with his own body....’”

(quotation omitted)). In Roe v. Wade, 410 U.S. 113 (1973),

the Supreme Court affirmed the principle that a person has the

right, grounded in the Fourteenth Amendment’s due process

clause, to control fundamental decisions involving his or her

own body. The right to personal autonomy was reaffirmed in

Akron, 462 U.S. 416, 419-20 (1983). See also Winston v. Lee,

470 U.S. 753, 762 (1985); Schmerber v. California, 384 U.S.

757, 772 (1966) (“[t]he integrity of an individual’s person is a

cherished value of our society”).

B. The Right of Self-Determination Protects a Wisconsin

Doctor, as Well as Patients, From Being Compelled to

Do Something Against His or Her Will.

A doctor, just like his or her patient, has a night to self-

determination. The doctor has a constitutionally protected

liberty interest in his or her own bodily integrity. The

Wisconsin Supreme Court’s decision in Schreiber violates that

right of self-determination. The decision compels doctors to

physically perform, or provide, whatever procedure or

treatment is demanded by the patient. A doctor may decide

not to perform a specific procedure for many reasons. It may

be medically inadvisable. The procedure may subject the doctor

to malpractice. The procedure may be against the doctor’s

religious beliefs. The supreme court’s decision, however, takes

away Wisconsin doctors’ right to decide whether or not to

perform a procedure.

Il. INFORMED CONSENT LAW SHOULD NOT

COMPEL A DOCTOR TO PERFORM A

PROCEDURE THAT IS NOT MEDICALLY

APPROPRIATE.

Here, Dr. Figge believed that the medically appropriate

treatment, given the treatment selected by Mrs. Schreiber

(i.e. the VBAC), was to continue with the VBAC. There

was no indication for a cesarean, other than the patient’s

pain. At trial, the expert witnesses agreed that a certain

percentage of patients request cesareans to end the pain of

labor. Dr. Cruikshank, a board certified obstetrician and

gynecologist, with a subspecialty of high risk obstetrics,

who was called by the defense, testified that such requests

are “very frequent.” Dr. Meier, also board certified in

obstetrics and gynecology, as well as maternal-fetal

medicine and high risk obstetrics, who was also called by

the defense, testified that patients ask for cesareans “with

great regularity.” (R. 100 at 45, 173-4). Dr. Cruikshank

testified that some women in labor desire sterilization, but

that once the labor is completed, they would regret such a

choice. Dr. Klavan, plaintiffs’ expert, testified that he would

never perform a cesarean unless it was medically indicated,

despite the patient’s wishes. (R. 91 at 100). Dr. Klavan also

agreed that he would disregard a mid-labor request for

sterilization for the same reason. (R. 91 at 110-11).

Plaintiffs’ other expert, Dr. Giles, was the only expert who

testified that he would perform a cesarean based solely on

the patient’s request, but even he admitted that he would

recommend continuation of labor if a cesarean was not

medically indicated. (R.98 at 168-169).

A. Dr. Figge Risked Committing Medical Malpractice

By Proceeding With Mrs. Schreiber’s Demands.

Here, Dr. Figge fulfilled the informed consent law

before Mrs. Schreiber went into labor. Mrs. Schreiber,

knowing all of the risks, benefits and viable options

(including a cesarean) chose to proceed with a vaginal

delivery. When Mrs. Schreiber went into labor, Dr. Figge

proceeded with the course chosen by Mrs. Schreiber and

he treated Mrs. Schreiber as he would any other patient who

had chosen a vaginal delivery. During Mrs. Schreiber’s

labor, Dr. Figge made the clinical judgment that a cesarean

was not appropriate for pain only. (The surgery was not

indicated under the circumstances). Had Dr. Figge been

forced to perform the demanded procedure, the cesarean,

and something had occurred during the cesarean, Dr. Figge

could have been found guilty of medical malpractice. There

clearly were risks associated with the cesarean, which had

been discussed with Mrs. Schreiber before her labor began.

For example, if Mrs. Schreiber died during the cesarean,

because of some anesthesia accident, Dr. Figge would have

been criticized for proceeding with the cesarean simply

because the patient had demanded it for pain relief, when

there were no other symptoms requiring the procedure.

If Mrs. Schreiber had demanded sterilization during her

labor, so that she would not have to endure the pain again,

under the supreme court’s decision, Dr. Figge would have

been compelled to perform a tubal ligation or hysterectomy

to satisfy the informed consent law. Sterilization was

certainly always a viable medical option. However, after

the delivery, Dr. Figge could have been subjected to

malpractice for performing the procedure as a way of

relieving pain in the future.

B. Dr. Figge Will Not Be the Only Wisconsin Doctor

Who Loses His Right to Self-Determination.

Dr. Figge will not be the only Wisconsin doctor affected

by the Wisconsin Supreme Court’s decision. Other doctors

will be forced to perform surgeries that they do not agree

with, thereby violating their rights to self-determination.

Many potential examples of when the supreme court

decision will compel action, against a doctor’s will, can be

envisioned. For example, a man arrives at the emergency

room with a severe cut on his finger. The emergency doctor

advises the man that there are several viable options for

treatment, including surgical repair and amputation. The

doctor strongly recommends the surgical repair. The patient

agrees to proceed as recommended. During the repair,

however, the pain is so intense, that the patient demands

amputation. The doctor does not believe that amputation is

the medically appropriate course of treatment and knows

that the man is only requesting amputation because of the

pain. Under the supreme court’s decision, the doctor would

be forced to conduct a second informed consent discussion,

in the middle of the surgical procedure, and then perform

the amputation as demanded by the patient. (This course

would likely subject the doctor to a malpractice claim for

performing the amputation, when it was not medically

indicated, although it was a viable medical option).

C. The Supreme Court Decision Compels the Doctor

to Perform Whatever Procedure is Demanded, as

Long as It is a Viable Medical Option.

The supreme court decision fails to appreciate that there

is a difference between a viable medical option and an option

that is indicated. A viable option may include modes of

treatment generally considered by the medical profession

to be within the scope of current, acceptable standards of

care. See Wisconsin Administrative Code, sec. Med.

18.02(3). With respect to treatment options, a viable method

within the standard of care encompasses every method of

treatment which does not fall to the level of unreasonable

negligent conduct. Nowatske v. Osterloh, 198 Wis. 2d 419,

438, 543 N.W.2d 265 (1996). An “indicated” medical option

refers to “a particular remedy or treatment as suitable or

necessary.” Random House Unabridged Dictionary 972

(2d ed. 1993). Many alternative methods of treatment may

be within the accepted standard of care, but not suitable,

necessary or recommended for an individual patient.

Consider a patient with a coronary artery blockage.

Treatment within the current standard of care would include

bypass surgery, angioplasty (insertion of a balloon-type

device in the blocked vessel) or thrombolytic (clot bursting)

medications. Since all are alternative, viable modes of

treatment within the standard of care [see, Med. 18.02(3)],

a physician has a duty to explain these as alternatives. For

one patient, all three therapies may be indicated, and the

patient can make an informed election after considering the

risks and benefits of each. However, for another patient,

only surgery may be indicated. Should the patient have a

right to demand thrombolytic therapy because it is within

the standard of care, although not indicated?

A physician following the Schreiber rationale may

believe he then has a legal obligation to acquiesce to the

patient’s request and administer thrombolytics. As a

consequence of this therapy, the patient could experience

intracranial bleeding and brain damage which is a known

risk of treatment. Had the physician’s judgment been the

controlling force and therapy limited to what was indicated,

the patient would not have been subjected to this risk.

Rhetorically speaking, if such a scenario unfolds, can the

physician then use Schreiber as a defense to a subsequent

malpractice action? This scenario could play out every

single day at every emergency department in this state.

Another everyday example might involve the

development of a breast lump. Biopsy, mammogram and

observation are methods of approaching this frequent

occurrence. A physician may feel that a mammogram is

appropriate and, based on the result, observation. The

patient, quite understandably, may request a breast biopsy

for “peace of mind.” A well-trained physician acting within

the highest standards may come to the judgment that a

biopsy is not indicated. Nevertheless, at the patient’s

request, a surgical biopsy, which is contraindicated, is then

performed. A minor complication, such a wound infection,

or a major complication, such as an anesthesia accident,

may result. Again, by complying with Schreiber, a physician

could become subject to liability in a standard medical

malpractice action for performing a surgical biopsy that was

contraindicated.

There are undoubtedly more everyday examples which

could be entertained. The cautionary language of the

supreme court’s decision cannot preclude situations such

as these from actually occurring.

In this case, Dr. Figge did not believe that a cesarean

was indicated until shortly before the emergency cesarean

was performed. Dr. Figge concluded that the procedure was

indicated when the baby’s heart rate decreased. If Dr. Figge

cael J

had been wrong in his medical judgment, he could be held

accountable through a claim of medical negligence. Under

the circumstances presented, and all of the symptoms

demonstrated, was it within the standard of care for Dr.

Figge to continue with the VBAC, and not perform a

cesarean. This is not an informed consent issue.

D. Withdrawal as the Physician Is Not A Possibility For

Avoiding the Problem.

In the majority of cases, Wisconsin doctors will not

have the option of withdrawing as the patient’s doctor, in

order to preserve their right to self-determination and to

avoid performing the demanded surgery. Dr. Figge, when

faced with Mrs. Schreiber’s request for a cesarean, could

not have simply walked away. He was in the middle of the

treatment that had been selected by Mrs. Schreiber.

A patient has the right to know about and even select

medical procedures that are available but not recommended

by his or her doctor. However, the patient’s right does not

require a given doctor to perform a specific treatment. “The

doctor should retain the right to refuse to follow a course

of treatment that contravenes the doctor’s opinion as to

proper medical practice and procedure.” Schreiber, 217 Wis.

2d at 114 (Myse, J., dissenting); App. B at 42a. Wisconsin

doctors should maintain their right to self-determination,

which would include making the decision as to whether or

not to perform a procedure demanded by a patient.

CONCLUSION

For the above-stated reasons, the Petitioner respectfully

requests that this Court grant its Petition for a Writ of

Certiorari.

Respectfully submitted,

TIMOTHY J. STRATTNER

Counsel of Record

PAUL J. KELLY

LinDA V. MEAGHER

SCHELLINGER & DoyLeE, S.C.

Attorneys for Petitioner

Wisconsin Patients

Compensation Fund

445 South Moorland Road

Suite 450

P.O. Box 464

Brookfield, WI 53008

(414) 785-0200

APPENDIX

APPENDIX A — OPINION OF THE SUPREME

COURT OF WISCONSIN DATED AND

DECIDED JANUARY 26, 1999

Kimberly SCHREIBER, a minor by her Guardian ad

Litem, John Krueger; Gerald Schreiber and Janice

Schreiber, Plaintiffs-Appellants,

PHYSICIANS INSURANCE COMPANY OF WISCONSIN; Paul

K.H. Figge, Jr., M.D.; Wisconsin Patients Compensation

Fund, Defendants-Respondents-Petitioners,

STATE of Wisconsin and Employers Health Insurance

Company, Defendants.

Supreme Court

No. 96-3676. Oral argument October 7, 1998. — Decided

January 26, 1999.

(Affirming 217 Wis. 2d 94, 579 N.W.2d 730

(Ct. App. 1998).)

(Also reported in 588 N.W.2d 26.)

a * *

4 1. ANN WALSH BRADLEY, J. The defendants,

Physicians Insurance Company of Wisconsin (Physicians

Insurance), Dr. Paul K.H. Figge, Jr., and Wisconsin Patients

Compensation Fund, seek review of a published decision

Appendix A

of the court of appeals that reversed the circuit court’s

dismissal of a suit brought by the plaintiffs Kimberly

Schreiber and her parents, Janice and Gerald Schreiber.'

They allege that Figge violated Janice’s right to informed

consent by failing to again conduct an informed consent

discussion after Janice withdrew her consent to a vaginal

delivery while in labor.? Because we determine that during

her labor Janice withdrew her consent to a vaginal delivery

and that at the time of her withdrawal there existed

medically viable options for treatment, we conclude that

her withdrawal constitutes a substantial change in

circumstances requiring a new informed consent discussion.

Additionally, we determine that a subjective test should be

applied to the question of whether Figge’s failure to conduct

another informed consent discussion was a cause of the

Schreibers’ injuries. Accordingly, we affirm the court of

appeals.

4 2. The relevant facts are essentially undisputed. This

action stems from Janice Schreiber’s labor and delivery of

Kimberly Schreiber at Saint Mary’s Hospital in

Rhinelander, Wisconsin. This was Janice’s third pregnancy.

Figge served as Janice’s obstetrician in all three of her

pregnancies and delivered all three of her children. Her first

two children were delivered by way of cesarean sections.

1. Schreiber v. Physicians Ins. Co., 217 Wis. 2d 94, 579

N.W.2d 730 (Ct. App. 1998) (reversing judgment of Circuit Court

for Oneida County, James W. Karch, Reserve Judge).

2. Informed consent is codified at Wis. Stat. § 448.30

(1995-96). Unless otherwise noted, all further references to the

Wisconsin Statutes will be to the 1995-96 version.

———————eeeaeae

Appendix A

Figge performed the first cesarean delivery in 1981 because

after over 17 hours of labor Janice still had not progressed

to a point where a vaginal delivery was possible. At the

time of Janice’s second delivery in 1984, the prevailing

medical practice followed the “once a cesarean always a

cesarean” rule. As a result, Janice had her second child by

cesarean delivery.

3. By the time of her pregnancy with Kimberly in

1987, the prevailing medical research and practice suggested

that having a vaginal birth after cesarean (VBAC) was no

more dangerous than having another cesarean delivery. In

some circumstances a VBAC presented less risk to the

health of both the mother and child than did another cesarean

delivery. In the course of Janice’s prenatal care she and

Figge discussed a VBAC delivery as an alternative to

another cesarean delivery. Figge recommended attempting

the VBAC and Janice agreed to that course of treatment.

Janice testified at trial that she was under the impression

that she would first attempt the VBAC but could change

her mind during labor and instead have another cesarean

delivery. Figge testified that he understood Janice’s pre-

labor choice of the VBAC to be decisive, meaning that once

her labor began Kimberly would be delivered vaginally

unless and until Janice’s symptoms medically warranted a

cesarean section.

44. Asher delivery neared, Janice went into labor and

was admitted into the hospital at approximately 4:00 a.m.

Janice signed consent forms for both a VBAC and cesarean

delivery as part of her hospital admission. Figge first visited

Janice’s hospital room at 8:00 a.m. to see how her labor

Appendix A

was progressing. At that 8:00 a.m. visit Janice told Figge

that she had changed her mind and wanted to abandon her

plan for a VBAC and instead have another cesarean delivery.

Figge urged Janice to continue with the VBAC. At

approximately 8:30 a.m., Figge concluded that Janice’s

labor was not progressing as he had hoped. He then

manually broke Janice’s amniotic fluid sac in an effort to

speed up the labor. Janice thereafter began experiencing

excruciating abdominal pains sharply different from her

contractions and unlike anything she had experienced with

her prior deliveries. Nurses attempted unsuccessfully to ease

the pain with various medicines. The pain was so unbearable

that at one point Janice sent her husband to locate their nurse

so that the nurse would again relay to Figge Janice’s desire

for a cesarean delivery.

45. Figge next checked on Janice at approximately

1:00 p.m. Again Janice complained of the abdominal pain.

Figge attempted to diagnose the source of the pain but could

not determine conclusively that it was caused by either a

uterine rupture or separation of the placenta from the wall

of the uterus. Figge concluded that the abdominal pains did

not pose a danger to either Janice or Kimberly. He based

this diagnosis primarily on his experience of seeing other

women in labor suffer from similar abdominal pains that

disappeared after delivery.

4 6. Also at this 1:00 p.m. visit Janice again informed

Figge that she wished to cease the VBAC and instead have

another cesarean delivery. Figge again instructed Janice to

remain patient because he wanted to give the VBAC more

time. When Janice protested, again complained of the pain,

Appendix A

and again requested a cesarean delivery, Figge tersely

responded to the effect that if he performed a cesarean

delivery on every woman who wanted one that all deliveries

would be by cesarean section.

{ 7. Janice later testified at trial that she was upset and

intimidated by Figge’s comment. As a result, she did not

again bring the issue of ceasing the VBAC to Figge’s

attention. Figge later testified that he sensed no barrier

between Janice and himself from that conversation. He

further testified that at the 1:00 p.m. visit he knew that Janice

would have preferred to have a cesarean delivery but that

he thought the better course of treatment was to continue

with the VBAC. Figge also testified that he would have

acquiesced if Janice had further persisted in her requests

for a cesarean delivery.

{| 8. Janice’s labor still did not progress as Figge would

have liked. At 2:00 p.m. Figge again visited Janice’s room

to check on her condition. Figge again counseled Janice

against the cesarean delivery and continued to advocate for

continuing with the VBAC. After Figge’s earlier terse

statement, Janice did not reiterate her desire for a cesarean

section. Figge interpreted her silence as her concurrence in

continuing with the VBAC.

9. At 3:40 p.m. Kimberly’s heart rate dropped. Figge

was summoned and performed an emergency cesarean

section at just after 4:00 p.m. It was too late. Janice’s uterus

had ruptured depriving Kimberly of oxygen. Kimberly was

born a spastic quadriplegic and she cannot move below her

neck or speak. The parties have stipulated that had Kimberly

Appendix A

been delivered prior to 3:29 p.m. she would have been born

a healthy child.

4 10. The Schreibers sued Figge and his insurer,

alleging both that Figge was negligent in his misdiagnosis

of Janice’s abdominal pain and that he violated Janice’s

informed consent rights. At some point in the litigation the

Schreibers dropped their medical malpractice claim and

proceeded to trial solely on the informed consent cause of

action.

4 11. After a trial to the court, the circuit court found

that Janice made an informed consent to the VBAC prior to

the beginning of her labor. The circuit court also found

that by the 8:00 a.m. meeting, Janice would have opted to

discontinue the VBAC and instead have another cesarean

delivery if Figge had offered her the choice. Although she

repeatedly communicated this preference to Figge, he did

not comply with her request. He knew the cesarean delivery

was a viable medical option but did not consider it to be

medically indicated. The circuit court held that Figge’s duty

was to manage Janice’s labor in a way that would safely

achieve the goal of delivery by VBAC upon the onset of

labor.

4 12. The circuit court further concluded that Figge was

under no obligation to re-advise Janice of her medical

options or seek new consent when her labor did not progress

as planned. The court reasoned that a doctor would only

need to re-obtain consent when there was a substantial

medical change in circumstances so that the patient faced

risks unconsidered when the original consent was given.

Appendix A

The court determined that the risks Janice faced when her

labor did not progress were no different than the risks she

was made aware of when she originally gave her consent.

The circuit court concluded that there was no substantial

change in circumstances and dismissed the Schreibers’ case.

13. The Schreibers appealed and contended that

Janice’s statements to Figge that she no longer wanted to

continue with the VBAC were a withdrawal of her consent

which triggered Figge’s duty to have a new informed

consent discussion. A divided court of appeals reversed the

circuit court and concluded that where two or more

medically acceptable options for treatment are present, the

“competent patient has the absolute right to select from

among [those] treatment options after being informed of

the relative risks and benefits of each approach.” Schreiber

v. Physicians Ins. Co., 217 Wis. 2d 94, 103, 579 N.W.2d

730 (Ct. App. 1998). It grounded its holding both in the

informed consent statute and the common law right of bodily

integrity from which the statute is derived. Jd. at 103-04.

The court of appeals determined that in order for the doctrine

of informed consent to be effective, it must require a

physician to do more than outline the methods of treatment

available to a patient. Informed consent must also bind the

physician to follow the course of treatment chosen by the

patient so long as that chosen treatment is medically viable.

Id. at 105.

| 14. The court of appeals reasoned that both the

VBAC and cesarean delivery were viable medical options

from the beginning of labor. Janice at first chose the VBAC.

Some time into her labor she changed her mind and chose a

Appendix A

cesarean delivery. Thus, the court of appeals concluded that

Figge violated Janice’s informed consent right by refusing

to follow her clearly communicated choice of treatment

during labor. Jd. at 107. Figge and Physicians Insurance

petitioned this court for review.

4 15. Before delving into our analysis we first sound a

cautionary note. This opinion does not address controversial

issues at each end of the medical spectrum. Namely, this

opinion should not be interpreted as creating a patient’s right

to demand any treatment she desires. Further, this opinion

should not be interpreted as requiring physicians to perform

procedures they do not consider medically viable,

procedures for which they lack the appropriate expertise,

or procedures to which they are morally opposed. Rather,

this case is decided on narrow and discrete issues: (1) Did

Janice withdraw her consent; (2) if so, did that withdrawal

together with the existence of viable medical options for

treatment trigger Figge’s duty under the informed consent

statute to again discuss the benefits and risks of her medical

options; and (3) if such a duty exists, should an objective

or subjective test be applied to the question of whether

Figge’s failure to conduct another informed consent

discussion caused the Schreibers’ injuries?

4 16. The issues present a mixed question of fact and

law. We defer to the circuit court’s findings of fact unless

they are unsupported by the record and are therefore clearly

erroneous. Clarmar Realty Co., Inc. v. City of Milwaukee

Redevelopment Authority, 129 Wis. 2d 81, 94, 383 N.W.2d

890 (1986); Wis. Stat. § 805.17(2). However, the application

of those facts to the pertinent law is a question of law which

Appendix A

we review independently of the determinations rendered by

the court of appeals and circuit court but benefiting from

their analyses. Miller v. Thomack, 210 Wis. 2d 650, 658,

563 N.W.2d 891 (1997).

4 17. The doctrine of informed consent traces its origins

to the common law notion that an adult has a “right to

determine what shall be done with his own body... .”

Schloendorff v. Society of New York Hospital, 105 N.E. 92,

93 (N.Y. 1914), overruled on other grounds, Bing v. Thunig,

143 N.E.2d 3 (N.Y. 1957). Originally founded on the

common law tort of assault and battery, see Paulsen v.

Gundersen, 218 Wis. 578, 584, 260 N.W. 448 (1935), the

limitations of that theoretical framework became apparent

with the passage of time. Trogun v. Fruchtman, 58 Wis. 2d

569, 598-99, 207 N.W.2d 297 (1973). Namely, a doctor’s

performance of an unauthorized treatment did not intuitively

coincide with the “intentional, antisocial nature of battery”

nor did it adequately reflect the fact that patients “consent”

on some level whenever they see a doctor. Martin v.

Richards, 192 Wis. 2d 156, 171, 531 N.W.2d 70 (1995).

As a result, negligence — the doctor’s failure to exercise

reasonable care to a patient — replaced intentional battery

as the theoretical underpinning for the doctrine. /d.

4 18. Over twenty years ago this court gave shape to

the doctrine as it currently exists in Wisconsin. Scaria v.

St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1,227 N.W.2d

647 (1975). In light of the fundamental purpose driving the

doctrine, we concluded that a physician’s duty to reveal

the risks and benefits of available treatment options

extended to the information a reasonable patient would need

10a

Appendix A

to know in order to make an informed decision. /d. at 12-13.

We stressed that physicians were not required to disclose

absolutely every fact or remote possibility that could

theoretically accompany a procedure. Rather, the touchstone

of the test was what the reasonable person in the position

of the patient would want to know. /d. at 13.

4 19. Within a few years after we decided Scaria, the

legislature codified Scaria’s test as Wis. Stat. § 448.30.’

3, 448.30 Information on alternate modes of treatment.

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: 7

(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.

lla

Appendix A

The statute requires physicians to disclose information to

patients about the viable medical modes of treatment so

that when the patient chooses a method of treatment, that

choice is made knowing both the reasonable risks and

benefits of her decision.

4 20. There is no question on appeal that prior to

Janice’s labor, Figge satisfied the requirements of the

informed consent statute. That issue was contested at trial

and was resolved in favor of Figge. The Schreibers do not

challenge that finding on appeal. Were that the whole of

the story, this case would not have come before this court.

The Schreibers argue that after Janice’s initial consent

but before Kimberly’s birth a substantial change of

circumstances occurred that nullified the original consent

and obligated Figge to again have an informed consent

discussion with Janice. That substantial change of

circumstances was Janice’s withdrawal of her consent where

another medically viable option existed.

421. There is little doubt that consent, once given, is

not categorically immutable. See Mack v. Mack, 618 A.2d

744 (Md. 1993) (“a corollary to [informed consent] is the

patient’s right, in general, to refuse treatment and to

withdraw consent to treatment once begun”). If we

determine as a matter of fact that consent was withdrawn,

we must also determine as a matter of law whether consent

can be withdrawn at this particular stage of the procedure.

422. The circuit court concluded that Janice initially

agreed to the VBAC and that once labor began she could

not change her decision unless there was a substantial

12a

Appendix A

change in medical circumstances. It is undisputed that

during her labor Janice told Figge on three separate

occasions that she wanted to cease the VBAC and have a

cesarean delivery. Moreover, Janice sent her husband to tell

the nurse to relay the message to Figge yet another time.

Though she never said the magic words, “I revoke” we

conclude that her repeated statements are clear indication

of her withdrawal of consent. The circuit court thought

likewise, concluding that if Figge had put the “choice to

her squarely,” she would have chosen the cesarean. Even

Figge recognized that Janice no longer desired to continue

with the VBAC. He testified that he would have done the

cesarean section had Janice persisted.* We are unsure,

after three unsuccessful personal attempts and a fourth

unsuccessful attempt through the nurse, how much more

Janice could have done to convince Figge.

4. Figge’s testimony on cross-examination was as follows:

Q. [A]s a hypothetical matter, if after [Figge discussed

the matter with Janice,] Mrs. Schreiber had refused

your recommendation, your recommendation being [to

continue the VBAC], if there would have been a refusal

to accept what you were recommending to the patient,

Doctor, and a demand made at that point for repeat

cesarean, what would you have done?

A. Well, like I said, I would still have tried to

encourage her to proceed, but, you know, if I wasn't

able to convince her so that she would be comfortable

proceeding and persisted, I think I would have to —

probably have to go along with that request, but I have

never had that situation.

13a

Appendix A

4] 23. Regardless of whether she factually withdrew her

consent, the circuit court concluded that once a procedure

has been initiated the time for a decision and discussions

relating to that decision has passed. We reject the notion

that the onset of a procedure categorically forecloses a

patient’s withdrawal of consent. To be sure, at some point

in virtually every medical procedure a patient reaches a point

from which there is no return. However, that point need not

be arbitrarily created at the commencement of treatment.

Rather it varies with the nature and circumstances of the

individual procedure and continues so long as there exist

alternative viable modes of medical treatment.

4 24. In this case, a cesarean delivery at all times

remained a viable medical alternative to the VBAC and

ultimately that is how Figge delivered Kimberly. Unlike

the circuit court, we determine that since alternative viable

modes of medical treatment existed, Janice was still able to

withdraw her consent to the VBAC.

4 25. Having determined that Janice had withdrawn

her consent to the VBAC, we must now examine the effect,

if any, of that withdrawal. The Schreibers contend that her

withdrawal both removed Figge’s authority to continue with

the VBAC and obligated him to conduct another informed

consent discussion. We agree.

26. In considering Figge’s authority to continue

with the VBAC, we note well-settled law provides that a

physician, absent exigent circumstances, may not perform

a procedure on a competent adult without consent. See, e.g.,

Lojuk v. Quandt, 706 F.2d 1456, 1460 (7th Cir. 1983)

l4a

Appendix A

(applying Illinois law); see also In the Matter of

Guardianship of L.W., 167 Wis. 2d 53, 68, 482 N.W.2d 60

(1992) (“The logical corollary of the doctrine of informed

consent is the right not to consent — the right to refuse

treatment.”); Paulsen, 218 Wis. at 583-84. Figge would not

assert that absent Janice’s consent to the VBAC he would

nonetheless be authorized to attempt the procedure. The

function of withdrawal, in effect, places Janice and Figge

in their original position — a physician, a patient, and a

series of options for treatment. It creates a blank slate on

which the parties must again diagram their plan.

4 27. Since Figge no longer had consent to continue

with the VBAC we are persuaded that Janice’s withdrawal

obligated Figge under the statute to again have an informed

consent discussion with her. The circuit court reasoned that

the physician’s duty to again conduct an informed consent

discussion occurred only if the medical circumstances were

so changed as to alter the risks a patient faced from the

time he or she first consented. Though not cited by the

circuit court, this is essentially the position taken by the

Colorado Supreme Court in Gorab v. Zook, 943 P.2d 423,

430-31 (Colo. 1997).

4 28. In Gorab, the Colorado Supreme Court concluded

that, under Colorado law, a physician has no general duty

to continue to explain the treatment options and their

corresponding risks once the physician obtains consent and

begins the procedure. /d. at 430. However, the Colorado

court noted that “where a new, previously undisclosed, and

substantial risk arises, there may be an additional and

independent duty to warn” the patient of that risk. /d. The

15a

Appendix A

Gorab court, much like the circuit court in this case,

concluded that because any risks the patient faced during

the procedure were risks previously disclosed, the physician

was not under a duty to conduct another informed consent

discussion.

4 29. As a general principle, we find Gorab’s and the

circuit court’s rationale convincing. If a patient consents to

a procedure knowing the risks, the physician has satisfied

his or her duty under the informed consent statute.

We conclude, however, the circuit court erred in its

determination of what could constitute a substantial change

of circumstances. The circuit court only considered medical

changes of circumstances. We conclude that it needed to

consider legal changes of circumstances as well. A

withdrawal of consent during the course of treatment to the

treatment agreed upon before treatment constitutes a

substantial change in circumstances triggering a physician’s

duty under the informed consent statute to re-advise the

patient of the available treatment options and their risks.

4 30. Either a substantial medical or substantial legal

change of circumstances results in an alteration of the

universe of options a patient has and alters the agreed upon

course of navigation through that universe. Where the

change is medical, the alteration is a new risk or benefit

previously unforeseen. Where the change is legal, the

alteration is a withdrawal of an option previously foreseen.

Though these cases travel from different directions, they

arrive at the same destination: a new informed consent

discussion. This discussion, much like any other such

discussion, would have entailed the risks and benefits at

16a

Appendix A

that time of the medically viable modes of treatment and

again presented her an opportunity to choose her treatment.

431. This conclusion does not alter the principles of

informed consent. Rather it more fully articulates those

principles by applying the doctrine in a factual context we

have previously not faced. Our cases to date have only dealt

with the initial adequacy of the informed consent discussion.

See, e.g., Johnson v. Kokemoor, 199 Wis. 2d 615, 545

N.W.2d 495 (1996) (informed consent discussion before

the procedure did not adequately inform the patient of

morbidity rates and the physician’s lack of experience in

performing the procedure); Martin, 192 Wis. 2d at 167-69

(the informed consent discussion did not reveal the

availability of a CT scanner and the unavailability of a

neurosurgeon at the particular hospital); Scaria, 68 Wis.

2d at 3-9 (the informed consent discussion failed to inform

patient that dye used for x-rays could cause paralysis or

death); Trogun, 58 Wis. 2d at 592-604 (the informed consent

discussion failed to explain potential side effects of drug

for tuberculosis).

q 32. This case, however, asks us to determine the

continuing vitality of an informed consent discussion. We

decline to view the informed consent discussion as a solitary

and blanketing event, a point on a timeline after which such

discussions are no longer needed because they are “covered”

by some articulable occurrence in the past. Rather, a

substantial change in circumstances, be it medical or legal,

requires a new informed consent discussion. See, eé.g.,

Paulsen, 218 Wis. at 583-84 (consent for “simple” mastoid

operation not sufficient for “radical” version of the same

17a

Appendix A

operation). To conclude otherwise would allow a solitary

informed consent discussion to immunize a physician for

any and all subsequent treatment of that patient.

4 33. Consistent with Wis. Stat. § 448.30 Figge had a

duty to conduct another informed consent discussion and

should have again presented Janice her treatment options

and given her the opportunity to choose. His failure to do

so was a violation of that duty.

4 34. As with any negligence action, a party must

show the breach of a duty that caused an injury. Having

determined that Figge breached his duty under the informed

consent statute, we now turn to whether the circuit court

erred in applying an objective test to the question of whether

Figge’s failure to again conduct an informed consent

discussion was a cause of the Schreibers’ injuries. See

Martin, 192 Wis. 2d at 182.

435. Since at least Scaria, this court has agreed with

the majority of American jurisdictions in employing what

is known as the “objective test.” Scaria, 68 Wis. 2d at 12-15.

The objective test focuses on what the attitudes and actions

of the reasonable person in the position of the patient would

have been rather than on what the attitudes and actions of

the particular patient of the litigation actually were. It

asks two questions. First, did the physician fail to give

information that a reasonable patient would want to know?

Kokemoor, 199 Wis. 2d at 632. Second, given the additional

information, would the reasonable patient have acted

differently than they did without the information? Martin,

192 Wis. 2d at 182. A

18a

Appendix A

4 36. We adopted this objective test because it is more

amenable to the adverse nature of litigation. Litigation rarely

occurs in the absence of injury. With this in mind, we have

concluded that the objective test is more “workable and

more fair” than asking the fact finder to determine the

question of liability in large part on the credibility of a

plaintiff whose testimony is tempered by the occasion of

an undesirable event. Scaria, 68 Wis. 2d at 15; Canterbury

v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972) (“[The

subjective test] calls for a subjective determination solely

on testimony of a patient-witness shadowed by the

occurrence of the undisclosed risk.”’).

437. We reaffirm our commitment to the objective test

when faced with a traditional informed consent case. The

rationale for the objective test set forth in Scaria has worn

well in the decades that have passed since its announcement

and remains a durable fabric for the future. In traditional

informed consent cases, an injured patient alleges that the

physician failed to reveal some pertinent information, and

that the patient would not have consented to the course of

treatment if the pertinent information was disclosed. See,

e.g., Kokemoor, 199 Wis. 2d at 641-47 (physician failed to

adequately explain morbidity rates and the physician’s lack

of experience performing the particular procedure); Martin,

192 Wis. 2d at 167-69 (the informed consent discussion

did not reveal the availability of a CT scanner and the

unavailability of a neurosurgeon at the particular hospital);

Scaria, 68 Wis. 2d at 3-9 (physician failed to inform patient

that dye used for x-rays could cause paralysis or death).

Thus, our law has framed the cause question essentially as,

“Would a reasonable patient have acted differently if the

19a

Appendix A

informed consent discussion had occurred?” See Martin,

192 Wis. 2d at 182.

| 38. However, in this type of case the underlying

rationale for the objective test, as noted above, is not

implicated. The traditional informed consent case

necessarily requires a fact finder to do more than find facts;

it requires the fact finder to be prophetic. The fact finder is

not only asked to determine what actually did happen but

is also asked to determine what would have happened if the

informed consent discussion had occurred. The fact finder

is asked to construct a puzzle with pieces missing and, where

missing, to create them so that the puzzle is complete.

| 39. Yet, in this case, the fact finder is asked only to

determine what did occur and to put the existing pieces of

the puzzle together. Janice does not contend that she did

not have adequate information about her delivery options

so that, if she had more information, she would have chosen

the cesarean delivery. Her claim is based on Figge’s failure

to conduct an informed consent discussion which deprived

her of the opportunity for her choice of treatment after she

clearly expressed her withdrawal of consent for the VBAC.

| 40. In this type of informed consent case where the

issue is not whether she was given the pertinent information

so that her choice was informed, but rather whether she was

given an opportunity to make a choice after having all of

the pertinent information, the cause question is transformed

into, ““What did the patient himself or herself want?” In these

cases, the objective test is not needed and may lead to absurd

results. It is not needed because the danger it alleviates —

—

20a

Appendix A

relying on an injured plaintiff's testimony to determine what

would have occurred — does not exist because the fact

finder is not asked to determine what would have occurred

but only what did occur. It can lead to absurd results when

the known and concrete choice of the actual person may

well be ignored if it does not comport to what the

hypothetical reasonable person would have chosen.

441. Having determined above that Janice did

withdraw her consent and that her withdrawal triggered

Figge’s duty to have another informed consent discussion,

by applying the subjective test we further conclude that had

Janice been given the opportunity for a choice in treatment

she would have chosen the cesarean delivery. Our

conclusion is based not on speculation but on the record

and factual findings of the circuit court. There can be no

serious disagreement that Janice stated that she wanted the

cesarean delivery. Figge’s testimony indicates that he knew

Janice wanted the cesarean delivery. Further, the circuit

court found that she already had all of the necessary

information and that “if the choice had been put to her

squarely she would have opted for a [cesarean] section.”

Applying the objective test to a case such as this would

result in the evisceration of Janice’s actually expressed and

understood choice of treatment in favor of what the

hypothetical reasonable person would have chosen. When

we actually know what was chosen based on the disclosure

of all of the pertinent information, we need not engage in

the hypothetical exercise of what the reasonable person

would have chosen.

4] 42. In summary, we determine that Janice withdrew

her consent to a vaginal delivery. Because alternative viable

A _..iisiieee

2la

Appendix A

modes of medical treatment existed at that time,

her withdrawal constituted a substantial change in

circumstances obligating Figge under Wis. Stat. § 448.30

to conduct a new informed consent discussion and affording

Janice the opportunity for a choice of treatment. Figge’s

failure to conduct such a discussion deprived Janice of the

opportunity to proceed with her actual and clearly expressed

choice, a cesarean delivery. In applying the subjective test

to causation, we conclude that the plaintiffs’ damages

flowed from Figge’s failure to conduct the informed consent

discussion. Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is

affirmed and the cause remanded to the circuit court to

determine damages.

22a

APPENDIX B — OPINION OF THE WISCONSIN

COURT OF APPEALS DATED AND

DECIDED FEBRUARY 17, 1998

Kimberly ScurEIBER, a minor by her Guardian ad

Litem, John Krueger; Gerald Schreiber and Janice

Schreiber, Plaintiffs-Appellants,

Vv.

PHYSICIANS INSURANCE COMPANY OF WISCONSIN; Paul

K.H. Figge, Jr., M.D.; Wisconsin Patients Compensation

Fund, Defendants-Respondents,’

StaTE of Wisconsin and Employers Health Insurance

Company, Defendants.

Court of Appeals

No. 96-3676. Oral argument October 16,1997. — Decided

February 17, 1998.

(Also reported in 579 N.W.2d 730.)

* e *

Before Cane, P.J., Myse and Hoover, JJ.

CANE, P. J. Kimberly Schreiber and her parents, Janice

and Gerald Schreiber, appeal from a judgment dismissing

their claim that Dr. Paul K. H. Figge, Jr., violated Janice’s

right to informed consent. The Schreibers contend the trial

+ Petition to review granted.

23a

Appendix B

court erred by concluding that Janice was not entitled to

choose a cesarean section in the midst of childbirth, and by

holding that Figge had no duty to either inform Janice of

changes that occurred during labor or to obtain her consent

to vaginal delivery after those changes occurred. We

conclude that under the specific facts of this case Figge

violated his duty under the informed consent statute by

refusing to comply with Janice’s request for a cesarean. We

therefore reverse the judgment and remand the matter to

the trial court for a determination of damages.

It is helpful to state at the outset what this case is and is

not about. This is not a case establishing a right to treatment

on demand. This is also not a case in which the doctor is

ethically opposed to a requested treatment, nor is it a case

in which the requested treatment falls outside the doctor’s

practice and experience. Rather, this case involves a doctor

who ignores a patient’s choice between two medically viable

treatment options.

The trial court’s findings of fact are substantially

undisputed.' Prior to the labor that lies at the heart of this

case, Janice had two children by cesarean. The first cesarean

was performed because of insufficient progress seventeen

hours after Janice went into labor. The second cesarean was

performed because it was then standard medical procedure

to do elective repeat cesarean births. Figge performed both

of these procedures.

When Janice became pregnant with Kimberly it was

becoming more medically acceptable to attempt a vaginal

1. This case was tried to the court without a jury.

24a

Appendix B

birth after cesarean (VBAC). Janice met with Figge to

discuss the alternatives and, after being given a choice

between a cesarean and a VBAC, elected the VBAC. Figge

testified at trial that he told Janice that her vaginal delivery

would be treated like any other labor, and that a cesarean

would be performed if medically indicated.

Janice began labor and was admitted to the hospital

shortly after 4 a.m. Figge first saw her at about 8 a.m., and

at that time Janice told him that she had changed her mind

and wanted a cesarean. Figge did not grant her request. At

about 8:30 a.m., Figge concluded that Janice’s VBAC

delivery was not progressing as fast as he would like and

he therefore performed an amniotomy, the breaking of the

mother’s amniotic fluid sac. Janice thereafter began to

experience severe upper abdominal pain unlike any she had

felt in her prior deliveries, and that she did not associate

with her contractions. She was given pain medication

throughout the remainder of her labor with limited success.

At | p.m. Figge returned to Janice’s room to examine

her. He concluded that she was making insufficient progress

in labor, and tried but failed to discern the cause of her

pain. Although Figge felt he could not completely rule out

two potentially harmful causes of the pain, uterine rupture

or placental separation,’ he concluded from his examination

that the pain did not indicate any impending danger to the

mother or child. In arriving at this assessment, Figge also

relied on the fact that in his experience at least one or two

2. This occurs when the placenta detaches from the uterine

wall.

AE Ng Tain end Be

25a

Appendix B

patients a year similarly suffered from undiagnosed pain,

and that such pain always resolved itself on the baby’s birth.

At about this time Janice made her second request for

a cesarean, and Figge responded that he wanted to give the

labor some additional time. Janice complained to Figge

about her pain, and again requested a cesarean. Figge

responded something to the effect that if he “gave every

woman who was in labor who asked for one a section, they’d

all do it.” Janice felt intimidated by Figge’s abrupt attitude,

and further that they were not “on the same team.” In her

weakened condition Janice did not pursue the matter further.

Figge testified that while he knew that Janice

was experiencing abdominal discomfort and irregular

contractions, and while he felt that Janice would have

chosen a cesarean if given the choice,’ he did not grant her

3. The trial transcript reads:

Q. And you encouraged her to continue on with the

trial of labor at that point?

A. I explained to her what I thought the situation was

and what we could do to further ascertain information

regarding that, and | did not think that it was unsafe to

proceed.

Q. You fully recognized at the time that you had that

conversation with her from what you could tell of her

demeanor and where she was at in this process that

had she — had you given her the choice of going to a

cesarean or to continue on with a vaginal delivery that

she would have opted for the cesarean, correct?

(Cont'd)

26a

Appendix B

request because he felt that a cesarean was not medically

indicated at the time. Figge also testified, however, that he

would have performed the procedure if Janice had persisted

in requesting it.

About 2 p.m. it became clear to Figge that Janice was

in a “hypotonic” pattern, which meant that she was not going

to make progress with labor. Figge testified that there were

two alternatives at this time: to correct the problem with

Pitocin, a labor-inducing drug, or perform a cesarean.

Although the Schreibers had recently requested a cesarean,

Figge encouraged them to hang on, and testified that he

believed they acquiesced in his decision because they

stopped resisting his recommendation to wait.

Janice was then given Pitocin to stimulate the labor

process. Pitocin was administered in increasing amounts

until 3:40 p.m., when the fetal heart beat dropped. Shortly

after 4 p.m. an emergency cesarean was performed, and

Kimberly was born a spastic quadriplegic. It is stipulated

that had Kimberly been born by cesarean prior to 3:29 p.m.

she would have been born healthy and normal.

The Schreibers’ initial claim against Figge alleged both

medical malpractice and a violation of the informed consent

(Cont'd)

A. Being in labor, being uncomfortable, she would

have done it just simply because of discomfort.

Q. In any event, it was apparent to you that she would

have done so?

A. That’s correct.

27a

Appendix B

statute. Prior to trial, however, the Schreibers dropped their

medical malpractice claim. Our inquiry on appeal therefore

does not concern whether Figge’s treatment was appropriate,

but only whether the Schreibers have a successful claim

under the informed consent statute.

The trial court found that Janice had given her informed

consent to the VBAC prior to labor, a finding not challenged

on appeal. The court also concluded that Figge had no duty

to obtain a new informed consent during labor. The court

determined that such a duty would only arise if the medical

situation changed in such a way as to increase the risks

involved. While acknowledging that a cesarean was

medically viable at the time Janice requested one, the court

determined that there was no change in the situation

sufficient to trigger a new duty to obtain Janice’s informed

consent.

For purposes of appeal, the trial court addressed

additional questions that its judgment otherwise made

unnecessary. First, the trial court found that Janice was

denied a choice among treatments that afternoon. The court

noted that Janice’s “consent was not solicited and it was

not obtained.” Further, the court found that Janice would

have opted for a cesarean that afternoon if Figge had given

her a choice. The court believed that Janice’s failure to

pursue it because of her stress, discomfort, and perception

that Figge’s attitude was brusque was entirely credible.

Second, the court found that the Schreibers had not

established any causation between an assumed informed

consent violation and subsequent damages. The trial court

then dismissed the Schreibers’ claims. The Schreibers

appeal.

28a

Appendix B

The Schreibers contend that they were denied the right

to informed consent when Janice’s requests for a cesarean

were refused. They claim that under the informed consent

statute Figge was not permitted to ignore Janice’s clear

request for a change in medically viable treatments.‘ Figge

responds that he met his informed consent obligations

because Janice initially chose the VBAC procedure and

never actually withdrew her consent to that procedure, and

further argues that a cesarean was not a medically viable

alternative when Janice requested it.

Our standard of review in this case is straightforward:

the trial court's factual findings are reviewed under a clearly

erroneous standard, and we will give due regard to that

court's ability to assess witness credibility. Section

805.17(2), Stats. Such factual findings will be upheld as

long as they are supported by any credible evidence or

reasonable inferences that can be drawn therefrom. Estate

of Cavanaugh v. Andrade, 202 Wis. 2d 290, 306, 550

N.W.2d 103, 110 (1996). The trial court’s conclusions of.

law, however, are entitled to no deference, and are reviewed

by this court under a de novo standard. Ball v. District No.

4 Area Bd., 117 Wis. 2d 529, 537, 345 N.W.2d 389, 394

(1984).

The Wisconsin informed consent law states:

Any physician who treats a patient shall inform

the patient about the availability of all alternate,

4. In the alternative, the Schreibers argue that Figge at least

had a duty to either provide additional information or to clearly

offer her a choice. Our conclusion that Figge could not refuse

Janice’s request makes resolution of these issues unnecessary.

29a

Appendix B

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: cogiilanii

(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.

Section 448.30, Stats. This statute imposes on physicians,

before they subject their patients to medical treatment, the

duty to explain all alternate, viable procedures to the patients

and to warn them of any material risks or dangers inherent

in or collateral to the proposed treatment. This is required

to enable the patient to make an intelligent and informed

choice about whether to follow the physician’s

recommendation or to select some other medically

acceptable treatment alternative. Martin v. Richards, 192

Wis. 2d 156, 173-74, 531 N.W.2d 70, 78 (1995) (citing

30a

Appendix B

Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1,

12-13, 227 N.W.2d 647, 653-54 (1975)).°

Where there are two or more medically acceptable

treatment approaches to a particular medical problem, the

informed consent doctrine, medical ethics, and the standard

of care all provide that a competent patient has the absolute

right to select from among these treatment options after

being informed of the relative risks and benefits of each

approach. Basic to the informed consent doctrine is that a

physician has a legal, ethical and moral duty to respect

patient autonomy and to provide only authorized medical

treatment. See Martin, 192 Wis. 2d at 169, 531 N.W.2d at

76: see also In re Guardianship of L.W., 167 Wis. 2d 53,

68, 482 N.W.2d 60, 65 (1992) (recognizing right to

self-determination). The corollary to this principle is that it

is inappropriate for physicians to pursue a treatment

alternative other than the one to which their patient has given

consent. This means that unless the patient consents to the

physician’s recommended treatment approach, the physician

may not proceed with that approach even if the physician

personally believes the recommended approach to be in the

patient’s best interests.* See Bankert v. United States, 937

F.Supp. 1169, 1173 (D. Md. 1996).

5. In 1981, the Wisconsin legislature codified the Scaria

standard, Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1,

227 N.W.2d 647 (1975), in § 448.30, Stats. See Laws of 1981, ch.

375, § 2 (effective May 7, 1982).

6. The dissent suggests this opinion compels a doctor to

undertake a course treatment the doctor believes is medically

(Cont'd)

31a

Appendix B

The doctrine of informed consent “stems from the

fundamental notion of the right to bodily integrity: ‘[e]very

human being of adult years and sound mind has a right to

determine what shall be done with his [or her] own body.’ ”

Martin, 192 Wis. 2d at 156, 531 N.W.2d at 76 (quoting

Schloendorff v. Society of New York Hosp., 105 N.E. 92,

93 (N.Y. 1914), overruled on other grounds by Bing v.

Thunig, 143 N.E.2d 3 (N.Y. 1957)). The Wisconsin

informed consent statute seeks to achieve this goal of patient

autonomy by insuring the patient has sufficient information

to allow for a meaningful choice among medically viable

treatments. /d. at 174-75, 531 N.W.2d at 78 (the doctor must

provide information “reasonably necessary for a patient to

intelligently exercise his or her choice regarding medical

treatment.’’) (Emphasis added.)

The deference Martin pays to the patient’s right to

choose her or his treatment is important because it

demonstrates that the informed consent statute protects more

than merely the patient’s right to obtain information. It

(Cont'd)

inadvisable. We are reluctant to enter into a debate as to whether

Figge believed it was medically inadvisable to perform a cesarean.

It is our opinion that under the informed consent doctrine, a doctor's

personal belief as to the best approach cannot outweigh the patient's

right to select a medically viable treatment. In any event, our

reading of his testimony is that Figge was willing to perform a

cesarean only if he felt it would be safer than continuing with labor.

He felt it was his “obligation to try and deliver her safely vaginally”

unless something occurred to indicate that it would be safer to

perform a cesarean. However, at no time did he state that it would

have been medically inadvisable to perform the cesarean.

32a

Appendix B

would be an absurd result indeed if we were to hold that a

doctor could meet his or her obligations under the informed

consent statute simply by providing information to the

patient while ignoring the patient’s ultimate choice.’

Therefore, in addition to protecting the patient’s mght to

obtain information, the informed consent statute must

protect the patient’s right to choose a medically viable

treatment and have that choice respected by her or his

doctor.

We further believe that this right to determine one’s

own treatment and have that choice respected applies

regardless of when the choice is made. A competent

patient's right to select from among medically acceptable

treatment alternatives also encompasses the right to change

one’s mind about the treatment approach selected. “A

competent patient who has had two prior cesarean sections

has the right to consent or withhold consent to a trial of

labor.” See generally Bankert, 937 F.Supp. at 1174. There

is nothing about pregnancy or the onset of the labor process

that automatically renders a woman incapable of rational

thought or unable to participate in competent decision-

making with respect to which medically viable treatment

will be followed.

The facts of this case reveal that Figge failed to respect

Janice’s right to choose her treatment. The trial court found

that Janice at least three times requested a change in

7. “[I}t is a fundamental rule of statutory construction that

any result that is absurd or unreasonable must be avoided.” State

ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d

604, 571 N.W.2d 385, 391 (1997).

33a

Appendix B

treatment; that the treatment sought was medically viable;

that Janice’s explanation for ceasing in her efforts to

exercise her choice was “entirely credible”; and that Janice

would have chosen a cesarean if Figge had offered her a

choice. Under these circumstances Figge could not ignore

Janice and substitute his own choice for hers.

The more difficult question for us is whether Janice’s

right to choose and control her treatment prevented Figge

from refusing to perform the cesarean when she requested

it. Keeping in mind that a cesarean remained a medically

viable alternative, we conclude that under the specific facts

of this case Figge could not refuse the request.* Figge had a

duty to either perform the cesarean or to obtain Janice’s

consent to continue with the vaginal delivery when she

requested the medically viable alternative treatment.

We do not believe our decision today will lead us, as

Figge and the dissent suggest, toward the perceived dangers

of a treatment on demand system. Nor does our decision

raise any additional complexities in a doctor-patient

relationship. To show this, it is helpful to again state what

this case is not. First, this is not a case in which a doctor is

ethically opposed to performing a certain medical treatment.

Figge routinely performed cesareans as a part of his medical

practice, including two specifically with Schreiber prior to

this pregnancy. Further, Figge had initially given Janice

8. We do not address whether Figge could have also met his

informed consent duty under these circumstances by finding a

doctor willing to perform the cesarean, because that argument was

not raised.

34a

Appendix B

the opportunity to elect a cesarean prior to labor, and

testified that he would have performed one during labor if

Janice had persisted in demanding one. Second, for the same

reasons, this is not a case in which the requested medical

treatment falls outside the doctor's practice and experience.

Instead, this is a case involving a patient who has been

given a free choice by her doctor between two medically

viable treatment options prior to labor, initially chooses one,

but then changes her mind in the face of an unexpected

change of circumstances that is inconsistent with or outside

the patient's previous experience in similar circumstances.

The doctor, although perfectly able and willing to follow

the patient’s wishes, and although the patient chose a

medically viable alternative that had been offered to her by

this doctor earlier, nonetheless ignored his patient and

substituted his own choice for hers.

We also believe that another critical fact involved in

this case sufficiently limits our holding: Janice was in labor

_ at the time she made her request. As Figge points out in his

brief, this is a “unique” case because labor involves a

lengthy and painful process that the patient undergoes

without a general anesthetic. Because of this critical fact,

we must affirm Janice’s right to choose a cesarean. First,

Janice’s labor obviously limited her ability to search for

and find a doctor willing to perform the requested

treatment.’ Second, Janice’s labor and painful condition

9. The record indicates that Janice’s upper abdominal pain

during labor was so severe at times that she could not get out of

bed without assistance.

35a

Appendix B

limited her ability to continually demand a change in

treatment, as Figge expected her to do. Third, Janice could

not be expected to expressly withdraw her consent to the

VBAC until she could find a doctor willing to perform a

cesarean. Therefore, we cannot conclude, as Figge suggests,

that there was no informed consent violation in light of

Janice’s failure to clearly withdraw her consent to the

VBAC. She practically could not do so until it became clear

that Figge or another doctor would honor her request for a

cesarean.

Figge offers three reasons why we should not hold that

his refusal to abide by Janice’s request violated her right to

informed consent. First, he disputes the trial court’s factual

finding that a cesarean was a medically viable form of

treatment when Janice requested it. We see little merit to

this argument. Most importantly, Figge’s view on appeal

would directly contradict the parties’ Stipulation that

Kimberly would have been born healthy and normal if the

cesarean had been performed before 3:29 p.m. Furthermore,

Figge’s own testimony that he would have performed a

cesarean if Janice had continued to demand the procedure

indicates that the procedure remained a medically viable

treatment option. Finally, because a cesarean was obviously

viable at both ends of the timeline, at the beginning during

the prenatal conference and again at the-end when it was

actually performed, it could reasonably be inferred that this

treatment was also viable throughout the timeline. We

therefore uphold the trial court's finding because it is

supported by credible evidence.

36a

Appendix B

Figge next argues that he was within his rights to make

recommendations to Janice,'® and that Janice appeared to

acquiesce because she stopped making demands for a

cesarean. We affirm the trial court’s implicit finding that

Janice did not acquiesce. The trial court found that Janice

was not given a choice and, further, that if she had been

given a choice she would have elected a cesarean. This

finding is supported by credible evidence. As the trial court

noted, Janice’s failure to pursue the matter after making

three requests was entirely credible in light of Figge’s

brusque demeanor and her considerable pain.

While we agree that a doctor can, and indeed should,

make treatment recommendations, this responsibility cannot

be substituted for providing the patient with a meaningful

choice. A doctor should not be permitted to wear down a

patient by continually advancing the doctor's position,

nor should a doctor be permitted to stand behind an

incapacitated patient’s inability to surmount a brusque,

dismissive demeanor. It is also important to recall that Figge

avoided offering Janice a choice that afternoon even though

it was apparent to him that she would have continued to

ask for a cesarean.'' On these facts we conclude that the

trial court’s implicit finding of no acquiescence is supported

by credible evidence.

Figge’s final argument is that even if he violated

Janice’s right to informed consent, there are no damages.

10. See Martin v. Richards, 192 Wis. 2d 156, 181-82, 531

N.W.2d 70, 81 (1995).

11. See note 3, supra.

fat aa

z 37a

Appendix B

In support of his argument, Figge refers us to both

Wisconsin case law establishing an objective standard of

causation in informed consent cases and the trial court’s

finding that a reasonable patient in Janice’s position would

not have elected a cesarean. We are not persuaded.

We begin by acknowledging that all Wisconsin

informed consent cases addressing the causation issue have

followed an objective test. See, e.g., Scaria, 68 Wis. 2d at

12, 227 N.W.2d at 654-55. We do not believe, however,

that these cases control the outcome in this case because

they addressed a question different from the one before us.

Notably, all these prior informed consent cases focused on

whether the information given to the patient was sufficient.

When those cases concluded that the information given was

insufficient, the court was required to determine whether

that violation actually caused the damages complained of.

In other words, as the Martin court explained, the question

was then whether it “would have made a difference” if the

patient was given the correct information. /d. at 182, 531

N.W.2d at 81.'? We do not believe that such an inquiry is

necessary in this case.

As we have noted, Wisconsin adheres to the

“fundamental notion of the right to bodily integrity.” Jd. at

169, 531 N.W.2d at 76. We are unwilling to apply an

objective standard in a case such as this where the patient

clearly expressed her treatment choice, and where that

12. This causation question is generally answered by a finding

that a reasonable person would not have consented to the doctor’s

proposed treatment had the patient been fully informed of all

available treatments. See Wis J 1 — Civi 1023.3.

38a

Appendix B

choice was simply ignored. We are unwilling to allow a

doctor to hide behind the question of what a “reasonable”

patient would have done where the doctor fails to respect a

patient’s choice among medically viable treatment

alternatives, and where that failure causes damages. Because

the parties stipulated that Kimberly would have been born

healthy and normal if Figge had not refused Janice’s request

that afternoon, we conclude that damages resulted from this

breach of the informed consent statute.

We therefore conclude, on the specific facts before us,

that Figge could not refuse Janice’s request for a cesarean.

His refusal to abide by Janice’s fundamental right to choose

her own method of treatment constitutes a violation of the

Wisconsin informed consent statute, and damages flowed

from that violation without regard to the “objective”

standard of causation.

By the Court. — Judgment reversed and cause

remanded for a hearing on damages.

MYSE, J. (dissenting). I enthusiastically endorse the

majority’s discussion of the patient’s right to determine her

or his course of treatment. However, I respectfully dissent

from the majority’s holding that under certain circumstances

a doctor can be compelled to undertake a course of treatment

the doctor believes is medically inadvisable. This is not,

and cannot be, the law. It is neither supported by the

informed consent statute nor sensibly grounded in public

policy.

39a

Appendix B

The informed consent statute is as follows:

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.

Section 448.30, Stats. This statute codified the standard

set forth in Scaria v. St. Paul Fire & Marine Ins. Co., 68

Wis. 2d 1, 227 N.W.2d 647 (1975). See Martin v. Richards,

192 Wis. 2d 156, 173-74, 531 N.W.2d 70, 78 (1995).

ee ee

40a

Appendix B

The Wisconsin informed consent statute cannot be fairly

read to compel either Figge or any other doctor to perform

a treatment the doctor does not believe is medically

indicated. In interpreting a statute our goal is to ascertain

the intent of the legislature. UFE, Inc. v. LIRC, 201 Wis.

2d 274, 281, 548 N.W.2d 57, 60 (1996). The first step of

this process is to look at the language of the statute. Id. If

the plain meaning of the statute is clear, we should simply

apply that meaning to the facts before it. /d. at 281-82, 548

N.W.2d at 60.

The plain language of the informed consent statute

merely requires the doctor to provide the patient with

information sufficient to allow the patient to either consent

or withhold consent to the doctor’s proposed medical

treatment. This much was said in Scaria. There the court

stated:

The right to be recognized and protected is the

right of the patient to consent or not to consent

to a proposed medical treatment or procedure.

In short, the duty of the doctor is to make such

disclosures as appear reasonably necessary

under circumstances then existing to enable a

reasonable person under the same or similar

circumstances confronting the patient at the time

of disclosure to intelligently exercise his right

to consent or to refuse the treatment or procedure

proposed.

;

4la

Appendix B

Id. at 12-13, 227 N.W.2d at 653-54. The plain language of

the informed consent statute and Scaria demonstrate that

there was no intent to require a doctor to perform medical

treatment on demand. Figge should not be held liable for

failing to do so here.

The majority attempts to create a right to treatment on

demand in this case by relying on the fundamental notion

of the right to bodily integrity. Quoting from Martin, the

majority adopts the position that “[e]very human being of

adult years and sound mind has a right to determine what

shall be done with his [or her] own body.” This is rather

ironic because the majority proceeds to compel a doctor to

perform a treatment the doctor does not believe is medically

indicated and does not want to do. In the instant case, Figge

determined that “there was no real danger” as a result of

Janice’s upper abdominal pain, and therefore believed “that

there was no real indication to proceed to a cesarean” when

Janice requested it. Figge’s refusal to perform the cesarean

was based on his belief that it was bad medical practice to

perform a cesarean based on complaints of pain alone. If

his medical judgment concerning the appropriateness of a

cesarean was incorrect, Figge may be liable in a medical

malpractice claim. But Figge’s refusal to carry out a

treatment that he believes is contraindicated does not

implicate the informed consent statute.

The informed consent statute requires the doctor to

explain all viable, medical modes of treatment. This

recognizes that there may be a number of feasible

approaches to a specific medical problem. But simply

because a medical procedure is feasible does not make

TSS tek ee

42a

Appendix B

such a procedure preferable or even desirable. We have

recognized this in several cases by reaffirming the doctor’s

right to make recommendations and even persuade the

patient to follow the doctor's superior medical judgment.

See, e.g., Martin, 192 Wis. 2d at 181, 531 N.W.2d at 81

(“The doctor might decide against the alternate treatments

or care, [she or] he might try to persuade the patient against

utilizing them, but [she or] he must inform them when a

reasonable person would want to know.”). Of course, the

patient is entitled to know about and even to elect other

medical procedures that are available but not recommended.

| do not believe, however, that this right encompasses the

right to compel a given doctor to perform a specific

treatment. The doctor should retain the right to refuse to

follow a course of treatment that contravenes the doctor's

opinion as to proper medical practice and procedure.

Contrary to the Schreibers’ argument, affirming this

right of the doctor does not correspondingly render

meaningless the right of the patient to direct her or his

treatment. If a doctor refuses to follow the patient’s choice

of treatment the patient remains able to seek another doctor

willing to accept the choice of treatment. While |

acknowledge that under certain circumstances a patient may

not be able to effectively choose among all treatment

options, there is nothing in the informed consent statute to

suggest that a doctor must follow the patient's request in

those cases. By refusing to include such a provision in the

statute I believe the legislature intended to balance the

doctor’s right to control one’s own medical practice with

the patient's right to control one’s own treatment.

43a

Appendix B

I further believe that the majority decision is bad public

policy. Such a decision can only work to raise additional

complexities in an already complex system of legal

entanglements with the patient-doctor relationship. By

limiting its result to the facts, the majority gives little

guidance to doctors with respect to this new duty. It is

unclear when a doctor will have to follow a patient's

demands for treatment, and the majority opinion establishes

no criteria that will assist the doctor in making this

determination. For all these reasons, I would hold that F igge

violated no duty by refusing to perform the cesarean at the

time it was requested.

44a

APPENDIX C — AMENDED ORDER FOR

JUDGMENT AND JUDGMENT OF THE CIRCUIT

COURT FOR THE STATE OF WISCONSIN, ONEIDA

COUNTY DATED NOVEMBER 20, 1996 AND

FILED NOVEMBER 22, 1996

STATE OF WISCONSIN

CIRCUIT COURT

ONEIDA COUNTY

Case No. 92-CV-298

KIMBERLY SCHREIBER, a minor by her Guardian ad

Litem, John W. Krueger; GERALD SCHREIBER; and

JANICE SCHREIBER,

Plaintiffs,

Vv.

PHYSICIANS INSURANCE COMPANY OF

WISCONSIN, INC., a Wisconsin corporation; PAUL

K. H. FIGGE, JR., M.D.; WISCONSIN PATIENTS

COMPENSATION FUND, a Wisconsin corporation;

EMPLOYERS HEALTH INSURANCE COMPANY, a

Wisconsin corporation, STATE OF WISCONSIN, a

sovereign body,

Defendants.

AMENDED ORDER FOR JUDGMENT

AND JUDGMENT

The above-captioned action having been tried to the

Court by stipulation after selection of a jury but before

———

ee ne

——————~reeeee

45a

Appendix C

testimony, with all parties waiving their right to a Jury trial

as to all issues, and the parties further stipulating to a

bifurcation of the trial with the liability determination only

to be made by the Honorable James W. Karch, and the Court

having heard and considered all of the evidence presented

during said trial which began on April 26, 1996 and ended

on May 6, 1996, and the parties providing post trial briefs

and other submissions with the final submissions from the

parties having been received by the Court on July 26, 1996;

and the Court thereafter having considered the evidence

received during the course of the trial and upon due

consideration, pursuant to the provisions of Section 805.17,

Wisconsin Statutes, rendered and entered its DECISION,

FINDINGS OF FACTS, CONCLUSIONS OF LAW AND

JUDGMENT dated September 24, 1996, and the Court

having previously ordered that the Plaintiffs’ Complaint be

dismissed on its merits and with costs, and the Clerk of

Court having approved costs in the sum of $7,734.04, and

based upon the above and foregoing, and on the Motion of

Randall J. Sandfort, Attorney for Defendants, Dr. Paul

K. H. Figge, Jr., Physicians Insurance Company of

Wisconsin, Inc., and Wisconsin Patients Compensation

Fund;

IT IS HEREBY ADJUDGED, ORDERED AND

DECREED that the Complaint of the Plaintiffs, and all

causes of action stated therein, be and the same hereby is

dismissed on its merits, with prejudice, and that the

Defendant, Physicians Insurance Company of Wisconsin,

Inc., have and receive judgment against the Plaintiffs,

~ Gerald Schreiber and Janice Schreiber, for its costs and

disbursements as permitted by law in the sum of $7,734.04.

46a

Appendix C

Dated at Baraboo, Wisconsin this 20th day of

November, 1996.

BY THE COURT:

s/ James W. Karch

Honorable James W. Karch

Reserve Judge

47a

APPENDIX D — DECISION, FINDINGS OF FACT,

CONCLUSIONS OF LAW AND JUDGMENT OF

THE CIRCUIT COURT FOR THE STATE OF

WISCONSIN, ONEIDA COUNTY

DATED SEPTEMBER 24, 1996

STATE OF WISCONSIN

CIRCUIT COURT

ONEIDA COUNTY

Case No. 92 CV 298

KIMBERLY SCHREIBER, a minor, by her Guardian ad

Litem, John W. Krueger, GERALD SCHREIBER, and

JANICE SCHREIBER,

VS.

PHYSICIANS INSURANCE COMPANY OF

WISCONSIN, INC., a Wisconsin corporation, PAUL K. H.

FIGGE, JR., M.D., WISCONSIN PATIENTS

COMPENSATION FUND, a Wisconsin corporation,

EMPLOYERS HEALTH INSURANCE COMPANY, a

Wisconsin corporation, and STATE OF WISCONSIN, a

sovereign body,

Defendants.

DECISION,

FINDINGS of FACT,

CONCLUSIONS of LAW

and

JUDGMENT

48a

Appendix D

I. POSTURE OF CASE

This medical malpractice case was tried to the court by

stipulation after the selection of a jury but before any

testimony. The parties agreed to waive their right to a jury

trial as to all issues, with the liability determination only to

be made by the undersigned judge and any necessary

damage findings to be made in the manner recited in detail

into the record. Testimony was then taken on six days,

beginning April 26, 1996, and ending May 6, 1996.

Following the close of testimony briefs and proposed

Findings and Conclusions have been provided, with the final

submissions received on July 26, 1996.

Il. SUMMARY OF FACTS

Prior to the incident forming the basis for the suit, the

plaintiff Janice Schreiber had had two children, each

delivered by cesarean section, on November 9, 1981, and

February 13, 1984. The first section was due to insufficient

progress in labor and the second by advance election in

accordance with the general practice at the time.-

In early 1988, when the plaintiff was again expecting,

vaginal deliveries following sections were commonly being

attempted, and during the prenatal consultation the decision

was made to do so here, that is, to attempt a VBAC, a vaginal

birth after cesarean.

The defendant Dr. Paul Figge provided care to the

plaintiff throughout all three pregnancies.

49a

Appendix D

Mrs. Schreiber began experiencing labor pains in the

evening of June 24, 1988, and was admitted to the hospital

at 4:10 A.M. on June 25, 1988. Dr. Figge first saw her at

the hospital in a corridor at about 8:00 A.M. and she told

him that she had changed her mind and would like to go

with a section. His response was that they’d go to her room

and he would check her out, which was done, and there

was no further discussion at that point regarding the matter.

The progress in her dilation was limited, and Dr. Figge

then performed an amniotomy, a breaking of the amniotic

fluid sac, an aid to the progress of labor. Shortly thereafter

the plaintiff began experiencing severe upper epigastric pain

that she had not had in her prior deliveries and that she did

not associate with her contractions. Pain medication was

first administrated at 9:30 A.M., with limited relief

provided. In dispute is whether Dr. Figge again saw her

shortly after this time.

At 1:00 P.M. Dr. Figge returned to her room,

determined that she had made insufficient progress, and

attempted to ascertain the source of the pain. He conducted

an examination and concluded that the pain was not related

to a factor that would suggest impending danger, although

he could not determine the precise cause. He then directed

the administration of Pitocin in an attempt to stimulate her

labor.

At that point the plaintiff was asking for a section, but

the defendant told her and her husband, the plaintiff Gerald

Schreiber, that she should continue to attempt to achieve

her goal of vaginal delivery.

50a

Appendix D

At 3:40 P.M. the fetal heart beat dropped and a section

Was performed at 4:03 P.M., but a catastrophic injury had

already occurred, depriving the fetus of oxygen and resulting

in the child, the plaintiff Kimberly Schreiber, being a spastic

quadriplegic.

The parties have stipulated that if a cesarean section

had been performed prior to 3:29 P.M., Kimberly would be

a healthy and normal child.

III. ISSUES

When this action was commenced on September 25,

1992, the complaint made general allegations regarding

negligence on the part of Dr. Figge. However, by

correspondence of January 4, 1996, and March 21, 1996,

confirmed subsequently on the record, plaintiffs’ counsel

advised that they were no longer pursuing any medical

mismanagement claim and that the only theory of

negligence was directed to informed consent.

The parties are in agreement that in connection with

the prenatal election for a VBAC, the initial inquiry is

whether Dr. Figge was negligent in failing to make such

disclosures to Janice Schreiber as would enable a reasonable

person under the circumstances confronting her to exercise

the right to elect between an attempt at vaginal birth and an

elective repeat cesarean section.

An affirmative answer to this question is followed by a

query as to whether a reasonable person, placed in the

position of Janice Schreiber and receiving adequate

Sla ;

Appendix D

disclosures, would not have consented to the attempt at a

vaginal birth.

As to the 1:00 P.M. consultation, the plaintiffs present

the same two questions relating now to continuing with the

attempt at vaginal delivery or trial of labor as opposed to

proceeding immediately to a section.

The defendants’ position is that Dr. Figge was under

no duty to have an informed consent discussion with the

plaintiff at this time period so that no other inquiries need

to be answered.

As stated, the parties have stipulated as to medical

Cause.

IV. RESOLUTION

In summary, I find that the prenatal disclosures were

not inadequate and that the defendant had no duty to conduct

an informed consent discussion with the plaintiff during

labor.

Accordingly I determine that the complaint be

dismissed.

V. AUTHORITIES

Wisconsin cases on informed consent are:

Trogun v Fruchtman, 58 Wis.2d 156, 207 N.W.2d 297

(1973)

52a

Appendix D

Scaria v St. Paul Fire & Marine Insurance Co., 68

Wis.2d 1, 227 N.W.2d 647 (1975)

Martin v Richards, 192 Wis.2d 156, 531 N.W.2d 70

(1995)

Johnson v Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495

(1996)

Finley v Culligan, 201 Wis.2d 611, 548 N.W.2d 854

(Ct App 1996) —

Kuklinski v Rodriguez, (Ct App 7/2/96, publication

ordered 8/27/96)

Section 448.30, Wis. stats. (Codifying Scaria)

VI. DECISION

This has been an unusually difficult case, primarily

because of the blurring of the lines between diagnosis or

medical management on the one hand and informed consent

on the other. The submissions and statements on the record

throughout demonstrate this conflict, with the plaintiffs

maintaining that their evidence was directed to informed

consent, the defendants frustrated from their belief

otherwise and my struggling with attempting to properly

analyze it. ;

An example of the difficulty in examining the case

efficiently is the plaintiffs’ position expressed at page 3 of

their post-trial brief and page 1 of their reply post-trial brief

53a

Appendix D

that the true issue in this case is whether or not proceeding

to a cesarean section at 1:00 P.M. was a viable medical

alternative. Would that the resolution could be that easy.

Of course it was; it was beginning at 4:10 that morning. I

do not understand the defendants to suggest otherwise.

Another area of concern is in evaluating the credibility

of the Schreibers and Dr. Figge. Parties always have a

self-interest in their testimony. But here for the Schreibers

at least their interest is especially compelling from the

devastating loss they have suffered, of a healthy child, and

the overwhelming burden they now have in caring for

Kimberly.

But, in accord with the principal rationale for the

‘Objective nature of the cause test, I am not to permit the

plaintiffs’ hindsight after a bad result to drive the resolution

of the case.

At the same time Dr. Figge’s testimony also would be

expected to be exculpatory, but I do not view it in the same

light.

Plaintiffs suggest a falsus in uno approach to Dr. Fi gge’s

testimony based on three separate instances: the claimed

10:30 A.M examination, the cause of the damage to

Kimberly and the etiology of the epigastric pain.

I viewed Dr. Figge on the stand and found him to be a

credible witness. While I think it more likely than not that

the examination did not take place, I accept that Dr. Figge

believed that it did when he testified. Likewise I am not

54a

Appendix D

persuaded by the other challenges. | reject the invitation to

discount other areas of his testimony.

The initial question for a jury, and likewise for me, as

stated at III above, addresses the prenatal information given

by Dr. Figge to Mrs. Schreiber. Specifically, the plaintiffs

complain that the information conveyed should have

included (Plaintiffs’ post trial brief, pages 13, 14 and 18):

1. A reference to the possibility of uterine rupture.

2. Advice that once a VBAC was elected, she could

not change her mind.

3. The lack of experience of Dr. Figge with multiple

VBACs.

4. The 1988 ACOG (American College of

Obstetricians and Gynecologists) guidelines not

allowing a doctor to encourage a multiple VBAC.

5. The risk for a section after a trial of labor being

greater than that for an elective repeat section.

6. A lack of sufficient experience in the literature to

support the efficacy of multiple VBACs.

] agree that on the record here the possibility of uterine

rupture is a topic to be mentioned. There was no particular

disagreement with this, even though the risk was extremely

slight and no expert professed to have had any any

significant personal experience with it happening.

55a

Appendix D

I consider that this was done here. I appreciate that there

was a direct conflict in the testimony on this. However, I

believe the defendant’s account more credible. He testified

that he did mention it and in fact that it would be very

difficult to talk with a patient about electing a vaginal birth

without talking about the reasons for the change in practice

in allowing them to attempt a vaginal birth without

mentioning uterine rupture.

On the other hand, Mrs. Schreiber, while firm in her

position that uterine rupture was never mentioned,

nonetheless testified that she did not remember everything

said to her about VBACs, and I can well imagine that prior

to this episode the topic of a uterine rupture could well be

one that would not stay with her.

Plaintiffs assert that the defendant’s testimony on this

is contradicted by his discovery deposition testimony. I do

not agree. Contrary to the assertion on page 8 of plaintiffs’

reply brief, he was not asked what he told Mrs. Schreiber.

He may have included a reference to her in his answer, but

it is not limited to her and there was no follow-up by

plaintiffs’ counsel.

As to the second point above, I consider that the

defendant did not adopt this position. I believe that he did

not comply with the plaintiff's 1:00 P.M. request, not

because he never permitted a change of mind during labor,

but because he believed that she should continue to deliver

vaginally, in accordance with the procedure she had initially

determined upon.

56a

Appendix D

As to number three, I do not accept that the defendant

had to inform her of his lack of experience with multiple

VBACs. I consider that this case is readily distinguishable

from Johnson where the doctor’s lack of experience in the

particular surgery involved was held to be included within

the information to be given the patient. But underlying that

conclusion, besides the extreme fact situation involved, was

compelling testimony about the necessity for such

experience and the significantly increased risks in being

operated upon by one with his limited background.

Here there was no such testimony suggesting the risks

were greater because of Dr. Figge’s lack of specific

experience with multiple VBACs. Rather the credible

testimony was that this was more a question of the general

competence and experience of the doctor in his obstetric

practice, and no one has suggested criticism of Dr. Figge in

this regard.

Mrs. Schreiber testified otherwise, of course, but I doubt

that a reasonable person would expect to have this

information volunteered to them, in view of the absence of

any increased risk therefrom.

As to number four, this information would not have

been required because it is not accurate. It repeats a position

expressed on several occasions in plaintiffs’ post-trial

submissions that is premised on the ACOG guidelines being

mandatory. They are not, of course, as I thought was clearly

established during the trial.

Granted, the guidelines recommended that doctors not

encourage multiple VBACs, but I am not persuaded that a

57a

Appendix D

patient needs to be advised of that. I do not recall any witness

so testifying, nor do plaintiffs point to any.

Items five and six are more nebulous. There was

considerable contradictory evidence regarding the relative

risks of vaginal versus section after trial of labor versus

elective repeat section deliveries. Any expectation that I

can resolve this conflict is unrealistic, particularly since |

do not find it necessary to do so.

Suffice it to say that I consider that Dr. Figge’s

discussions with plaintiff regarding the pros and cons on a

number of occasions, as she testified to, her testimony that

he informed her that one risk was a repeat section, her further

testimony that she was aware that there was more of a risk

with surgery, and his testimony at pages 21 to 31 of the

trial transcript, which I accept, all are sufficient to satisfy

his obligation in this regard. As I understood the testimony

of the two defense experts at trial, Dr. Cruikshank and Dr.

Meier, neither would have provided the information of

concern here.

While not necessarily controlling on the point, |

particularly note Exhibit 61, an ACOG bulletin of February,

1987, entitled “Vaginal Birth After Cesarean Deli®ery”, a

patient information pamphlet for providing to one

contemplating a VBAC. No risk of the type under

consideration at items five and six appears.

In reference to the overall issue regarding the

information conveyed, I conclude that I may consider that

Dr. Giles, one of plaintiffs’ experts, testified in a discovery

58a

Appendix D

deposition at a point in time where the focus of the plaintiffs’

case remained on medical management that he had reviewed

the defendant’s discovery deposition testimony regarding

prenatal informed consent and had no criticism regarding

the same. In his trial testimony there is the suggestion that

if defendant’s version is adopted it would comply, with the

rupture risk being the main point of concern. And both Dr.

Cruikshank and Dr. Meier suggested approval of the

disclosures.

Also from Exhibit 61, the ACOG bulletin, is the advice

that the main risk of a VBAC is rupture of the uterine scar,

which is more likely if the scar is a classical vertical incision

(not the situation here), and that although very uncommon

this still may of itself be reason to avoid a VBAC. Further,

that a rupture is still possible with a low transverse incision

(our situation) but minimizes the risk from it.

I am, of course, to consider this from the point of view

of what a reasonable person in similar circumstances to

those of Mrs. Schreiber would want to know. However, in

view of the expert testimony, I consider appropriate the

following from Scaria, page 12:

The disclosures which would be made by doctors

of good standing, under the same or similar

circumstances, are certainly relevant and material

and we surmise would be adequate to fulfill the

doctor’s duty of disclosure in most instances.

| understand that in retrospect the plaintiff believes that

she should have had more information. But in view of her

59a

Appendix D

comfort level with Dr. Figge, as referred to in the next

section dealing with cause, I find it unlikely that either she

or any other reasonable person would really have considered

and weighed all of these matters now complained of.

The burden of proof is on the plaintiffs to satisfy me to

a reasonable certainty by the greater weight of the credible

evidence, and I cannot determine that the information given

by Dr. Figge in the prenatal period was not adequate.

If, however, the answer to this first question should be

affirmative, then I consider the resolution of the second

question, the legal cause.

I rely here on several aspects of the testimony:

1. Mrs. Schreiber testified that one of the reasons that

she decided to choose VBAC was “because I felt really

comfortable with what Dr. Figge was telling me” (TT p49),

you do have a tendency to believe and follow the advice of

your physician (TT p171), and “He had no problem with it

at all, and because he had no problem with it at all, I was

comfortable with it” (TT p176).

2. Dr. Giles responded to a question as to whether it

would have been all right to manage Mrs. Schreiber as a

VBAC patient with “Absolutely” (TT p59).

3. Dr. Giles continues to offer patients VBACs

“enthusiastically” (TT p13), he strongly recommends them

(TT p167), and 70% to 80% of his patients try it (TT p168).

60a

Appendix D

4. Dr. Klaven, plaintiffs’ other expert, testified that he

would have accepted plaintiff as an appropriate patient

(Video Transcript p101), and that in 70% of his cases a

repeat section is not even an option, although it is not clear

whether this was limited to one prior section mothers

(VT p 93). In any event, a VBAC is his standard of delivery

for two prior cesareans (VT p102).

I recognize that Mrs. Schreiber testified that she would

not have elected VBAC if she had been aware of any of the

risks. I would hardly have expected her to say otherwise.

But as the case law points out, while her testimony on this

is admissible, it may not threaten to dominate the findings.

Scaria.

With the overwhelming support for VBACs and with

her own statements regarding accepting her doctor’s advice

along with my own perceptions of the general tendency of

reasonable people to look to their doctors for guidance and

decision-making, as confirmed by the experiences of all of

the medical witnesses, I am not persuadd that a reasonable

person in her position with adequate information would not

have consented to the attempt at vaginal birth.

Turning now to the 1:00 P.M. time period, the critical

issue in view of the posture of the case is whether the

defendant was bound to conduct an informed consent

discussion with the plaintiff at this point.

The plaintiffs claim yes, because of her request for a

section and because her changed condition had increased

the risks.

6la

Appendix D

As to the first, this aspect has come up regularly

throughout the various conferences and hearings we have

had in this case, with plaintiffs’ counsel maintaining that

the request triggers the application of sec. 448.30.

In plaintiffs’ post-trial brief the following appears at

page 1:

Since it is clear that this alternative (a section

delivery) was not made available to her at 1:00

p.m., the issue regarding the 1:00 p.m.

conference is merely a legal one, did the

informed consent duty apply at that time? If it

did, then Janice Schreiber had the right to choose.

It seems inconceivable that when the patient is

requesting the alternative procedure that the

informed consent duty would not apply at that

time.

But how do I determine if the duty existed at that time

as invoked by her request? No expert testimony was

presented and neither side has provided any authority

specifically on point. I have made an exhaustive search and

cannot find any anywhere that addresses this concept of a

proper response to a request as made here, either by way of

initiating an informed consent discussion or otherwise. And

this despite the comment appearing in 61 Am. Jur. 2d,

Physicians, Surgeons, etc., section 187:

The doctrine of informed consent has achieved

a status in the law of medical malpractice

unmatched in speed of growth and commentary.

62a

Appendix D

Returning to the last sentence of the post-trial brief

quote above, I observe that Mrs. Schreiber also made a

request for a section at 8:00 A.M. that day which was not

observed. It would seem that the same result should obtain

in either case, but plaintiffs have not so argued.

I am satisfied to determine that once the procedure

elected has been initiated, as here, a request for a change

does not thereby require an informed consent discussion.

At this point the election has been made and the procedure

in progress. As defendant testified, his duty was to manage

her labor and to help her achieve her goal as long as it was

safe.

The other question presented then is whether in this

ongoing procedure the presence of changed circumstances

resulting in a change in the risk situation requires a renewed

informed consent discussion regarding alternative modes

of treatment.

The statute, sec. 448.30, does not provide a clear

answer. The cases recited earlier all deal with either

proposed surgery or alternative diagnostic or treatment

methods. And again, no authority has been submitted, and

I have not found any of assistance.

The conclusion I derive from the medical testimony

presented is that a substantial change in the circumstances

surrounding the patient ought to require a renewed informed

consent discussion if there are alternative, viable medical

modes of treatment.

63a

Appendix D

The plaintiffs’ two experts testified that these changed

conditions and thus increased risks were present here.

The defendants’ experts, the two already referred to plus

Dr. Phelan as well as Dr. Figge, all took the position that

the situation had not changed so that a consent discussion

was not necessary. The obvious inference is that changed

circumstances are in fact significant, which leads to the same

position as the plaintiffs’. And this seems to me to be an

appropriate conclusion.

Accordingly, I determine that following an informed

consent to a specific treatment procedure, once the

procedure has commenced, the duty of the doctor is to seek

to achieve its goal, but if the situation changes to increase

the risks presented to the patient and there are alternative,

viable medical modes of treatment available, then a renewed

discussion under sec. 448.30 needs to take place.

To consider this for our situation, a more detailed

statement of the underlying facts is required.

Mrs. Schreiber began having light contractions at 10:00

P.M. the evening before delivery. She was admitted to the

hospital at 4:10 A.M. At 8:50 A.M. Dr. Figge performed

the amniotomy. At 9:10 A.M. pain started and at 9:30 A.M.

pain medication administered with pain reported at 10:05

A.M. as slightly less. At noted earlier, the pain was reported

as severe.

At 12:17 P.M. a different pain medication was

administrated with a 12:40 P.M. report of more comfortable

64a

Appendix D

and a 1:05 report of fairly comfortable. Pitocin was started

at 1:48 P.M. Subsequently fetal distress was noted and

at 4:03 P.M. an emergency cesarean was performed.

(Exhibit 1, a time-line presentation from the nursing notes,

exhibit 4.)

The plaintiff testified that at the examination by Dr.

Figge at 1:00 P.M. she told him she wanted a section and

his response was that he wanted to give it more time. She

complained about the pain and he replied sharply, “I hear

you, Jan.” Shortly after that she again asked for a section

and he responded, “If 1 gave every woman who was in labor

who asked for one a section, they’d all do it”. She felt that

he was abrupt on these two exchanges, her feelings were

hurt and she “kinda withdrew”, not pursuing the matter any

further.

Mr. Schreiber described the responses as snapping at

her. He further related that on the second request, defendant

said that things were ok and they should continue to give it

more time.

Both Schreibers made it clear that relief from the pain

was the motivation for requesting the section.

Dr. Figge’s testimony was substantially in accord. He

testified that at 1:00 P.M. she asked for a section and he

responded that he’d do an examination and then they would

discuss it.

After the exam he told her that there were no indications

to proceed with a section at that point and that she should

65a

Appendix D

give it the best chance. He also considered it appropriate to

attempt to stimulate labor with Pitocin, which was done.

Dr. Figge testified that while he could net determine

the cause of her upper abdominal pain, he was convinced

from his examination that it was not related to either

placental separation or uterine scar dehiscence, a weakening

or partial tear of the scar from a prior section incision,

although he could not rule out either with 100% certainty.

It should be noted that in plaintiff's first delivery in

1981 she was experiencing contractions at home for a

extensive period of time, as I understood her testimony.

She was admitted at 2:00 A.M., had a day of considerable

contraction pain, received Pitosin for three hours and at 7:00

P.M. a section was elected.

Plaintiffs claim that there were two changed

circumstances: the failure to progress in labor and the

inability to ascertain the source of the pain.

None of the defendants’ experts considered that either

of these constituted such a change as to require a renewed

discussion with the plaintiff. In general, they approved the

examination made by defendant, agreed with his

conclusions and considered that there were no increased

risks and that there was no need to advise Mrs. Schreiber

that the source of the pain was unknown.

Both of the plaintiffs’ experts believed otherwise, that

in fact that the circumstances had changed as to both points,

and indeed that a section was mandated at that time.

66a

Appendix D

In this connection I observe that each testified to this

effect even with the knowledge that medical management

was no longer in the case and presumably with the

knowledge also that the court had entered an order in limine

precluding any reference to the appropriateness of Dr.

Figge’s conduct in the management of the medical care

provided to the plaintiff. (Giles trial transcript p210; Klavan

video deposition transcript pp49, 70 and 72; transcript of

motion hearing of April 12, 1996, p3.)

In evaluating the messages I certainly may evaluate the

messengers, and in viewing their testimony I may consider

their underlying point of view, the belief that defendant was

wrong in not performing a section at 1:00 P.M.

As to the lack of progress in labor, I observe that here

the plaintiff was in labor at the hospital for nine hours before

the section delivery while in her first pregnancy she was in

labor at the hospital for 17 hours before delivery by section

for failure to progress.

It does not seem unreasonable to me to accept the

testimony on behalf of Dr. Figge that the lack of progress

was not a changed condition requiring a review of options.

As to the source of the pain, Dr. Figge was convinced

it was not a threat to the fetus. He had had previous

experience with unexplained pain during labor, and it had

gone away after delivery. There was credible testimony from

his experts in support of this determination and his

conclusion that the risks were not increased.

67a

Appendix D

Plaintiffs assert that in fact the cause of the pain was a

dehiscence which confirms the increase of the risk at 1:00

P.M. But this is entirely conjecture; the cause of the pain

was not established by the record at all, in my view.

I am satisfied to find that the circumstances had not

changed so that the defendant was not required to obtain

renewed consent to the choice of treatment. There was

nothing to communicate; the risks had remained the same,

as he viewed them.

However, if Dr. Giles and Dr. Klavan are correct, where

does that leave us? With a faulty diagnosis, in my opinion,

considering the precise nature of the plaintiffs’ criticism in

this regard.

Dr. Klavan articulates it as:

... his failure to recognize that the trial — that

the labor was not progressing was a medical

problem, and that he had to rule out a separation

of the scar because of the upper abdominal pain

and the informed consent, otherwise I had no

problem with the care he provided. I thought it

was good. (Video transcript p123.)

The plaintiffs’ reply post-trial brief at page 38

complains that “He was simply unable to determine the

source of the pain”, and at page 39 that “The doctor didn’t

have a clue as to what was causing the pain”.

This, it seems to me, is diagnosis, which, of course, is

care and treatment and is not in the case.

68a

Appendix D

As discussed recently in Finley at page 628:

A failure to diagnose is a form of medical

malpractice. Citing. A failure to obtain informed

consent is another discrete form of malpractice,

requiring a consideration of additional and

different factors.”

I note with interest a statement in Treatise on Health

Care Law, published by Matthew Bender, sec. 17.02(2)(a):

Some claimants have attempted to convert

instances of missed or erroneous diagnosis,

which properly should be regarded as possible

cases of medical negligence, into informed

consent claims.

I am satisfied that this is the situation here.

While this concludes the discussion underlying my

determinations, it seems appropriate to proceed to consider

other factual matters here, in the event an appellate court

disagrees with my conclusion that there was no informed

consent duty at 1:00 P.M.

I conclude that the consent portion of this dialogue was

missing. Plaintiff's consent was not solicited and it was not

obtained. Defendants’ post-trial brief at page 91 concedes

as much, that there was no discussion in the context of a

wholly elective choice.

I am also satisfied, as presumably the defendants would

agree, that if the choice had been put to her squarely she

69a

Appen..x D

would have opted for a section. Her explanation for why

she did not pursue it at the time in the stress of her physical

discomfort and her perception of the brusque attitude of

the defendant is entirely credible.

Thus any inquiry as to the adequacy of the information

conveyed to her becomes irrelevant, in my opinion.

However, there may be concern with the next step, if a

reasonable person placed in her position and receiving

adequate disclosures would not have consented to continue

in the attempt at vaginal birth.

From the point of view of Dr. Giles and Dr. Klavan,

the obvious answer is yes. But I suggest that neither doctor

would have disclosed any information to the patient except

to announce that they were headed for surgery.

From the point of view of the defendant and his

witnesses, however, the additional risks were minimal and

the patient would be encouraged to continue. Taking into

account the considerable testimony that without exception

demonstrated the overwhelming willingness of patients to

accept the recommendations of continuing, the answer here

is negative.

VII FINDINGS OF FACT

1. I adopt as findings of fact the recitations of facts

within Sections II and VI above.

2. The defendant Paul K. H. Figge was not negligent

in failing to make such disclosures to the plaintiff Janice

70a

Appendix D

Schreiber before the onset of labor was would enable a

reasonable person to exercise the right to elect between an

attempt at vaginal birth and an elective cesarean section.

VIII CONCLUSIONS OF LAW

1. I adopt as conclusions of law the legal

determinations contained within Section VI above.

2. The defendant Paul K. H. Figge was under no duty

under the circumstances to secure the informed consent of

the plaintiff Janice Schreiber to a continuation of the trial

of labor after its onset.

IX JUDGMENT

Upon the record and proceedings herein and upon the

foregoing Decision, Findings of Fact and Conclusions of

Law,

IT IS ORDERED AND ADJUDGED, That the

complaint of the plaintiffs herein be dismissed on its merits,

with costs.

Dated: September 24, 1996.

BY THE COURT,

s/James W. Karch

James W. Karch, Judge

Tila

APPENDIX E — ORDER OF THE WISCONSIN

SUPREME COURT DENYING MOTION FOR

RECONSIDERATION DATED APRIL 7, 1999

SUPREME COURT

OF WISCONSIN

OFFICE OF THE CLERK

110 East Main Street, Suite 215

P.O. BOX 1688

MADISON, WISCONSIN 53701-1688

TELEPHONE: (608) 266-1880

TTY USERS: Call WI TRS at 1-800-947-3529;

request (608) 266-1880

FACSIMILE: (608) 267-0640

Web Site: www.courts.state.wi.us

MARILYN L. GRAVES

CLERK

Date: April 07, 1999

To:

Paul J. Keily

Schellinger & Doyle, S.C.

P.O. Box 464

Brookfield, WI 53008-0464

Richard A. Victor

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

72a 1

Appendix E

Lynn R. Laufenberg

Cannon & Dunphy, S.C.

P.O. Box 1750

Brookfield, WI 53008

Susan R. Tyndall

Hinshaw & Culbertson

100 E. Wisconsin Ave., #2600

Milwaukee, WI 53202-4115

Dana J. Weis

Habush, Habush, Davis & Rottier

26 S. Brown St.

Rhinelander, WI 54501

Nancy M. Rottier

WI Academy of Trial Lawyers

44 East Mifflin Street, #103

Madison, WI 53703

The court has entered the following order:

Case No. 96-3676

Kimberly Schreiber v. Physicians Ins. Co. of WI

Trial Court Case No. 92 CV 298

The court having considered the Motion for Reconsideration

filed in the above matter,

IT IS ORDERED that the Motion for Reconsideration is

denied, with $50.00 costs.

Marilyn L. Graves

Clerk of Supreme Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.