Renae Wetterling v. Mark Southard, MD ( 2023 )

2023 WI APP 51
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2021AP1694
Complete Title of Case:
RENAE WETTERLING,
PLAINTIFF-APPELLANT,
V.
MARK SOUTHARD, MD, SACRED HEART HOSPITAL FOUNDATION,
INC.,
C/O GREGG ALBERT AND PROASSURANCE WISCONSIN INSURANCE
COMPANY,
DEFENDANTS,
PREFERRED PROFESSIONAL INSURANCE COMPANY AND SACRED
HEART HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER
OF ST. FRANCIS, WISCONSIN INJURED PATIENTS AND FAMILIES
COMPENSATION FUND,
DEFENDANTS-RESPONDENTS,
WELLS FARGO & COMPANY, ALLIANCE COLLECTION AGENCIES, INC.
AND UNITED HEALTHCARE SERVICES, INC.,
SUBROGATED DEFENDANTS.
Opinion Filed: September 12, 2023
Submitted on Briefs: August 16, 2022
Oral Argument: August 15, 2023
JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Dana J. Wachs, Beverly Wickstrom and Kimberly Sweatt of
Gingras, Thomsen & Wachs, Eau Claire. There was oral argument by
Dana J. Wachs.
Respondent
ATTORNEYS: On behalf of the defendants-respondents, Preferred Professional
Insurance Company and Sacred Heart Hospital of the Hospital Sisters of
the Third Order of St. Francis, the cause was submitted on the brief of
John F. Mayer and Justin F. Wallace of Mayer, Graff & Wallace LLP,
Manitowoc. There was oral argument by John F. Mayer.
On behalf of the defendant-respondent, Wisconsin Injured Patients and
Families Compensation Fund, the cause was submitted on the brief of
Guy DuBeau of Axley Brynelson, LLP, Madison. There was oral
argument by Guy DuBeau.
2
2023 WI App 51COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2021AP1694 Cir. Ct. No. 2018CV67
STATE OF WISCONSIN IN COURT OF APPEALS
RENAE WETTERLING,
PLAINTIFF-APPELLANT,
V.
MARK SOUTHARD, MD, SACRED HEART HOSPITAL FOUNDATION, INC.,
C/O GREGG ALBERT AND PROASSURANCE WISCONSIN INSURANCE
COMPANY,
DEFENDANTS,
PREFERRED PROFESSIONAL INSURANCE COMPANY AND SACRED HEART
HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS,
WISCONSIN INJURED PATIENTS AND FAMILIES COMPENSATION FUND,
DEFENDANTS-RESPONDENTS,
WELLS FARGO & COMPANY, ALLIANCE COLLECTION AGENCIES, INC.
AND UNITED HEALTHCARE SERVICES, INC.,
SUBROGATED DEFENDANTS.
No. 2021AP1694
APPEAL from a judgment of the circuit court for Rusk County:
STEVEN P. ANDERSON, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 HRUZ, J. Renae Wetterling appeals from a summary judgment
dismissing all of her claims against Sacred Heart Hospital of the Hospital Sisters of
the Third Order of St. Francis and its insurer Preferred Professional Insurance
Company.1 Wetterling argues that the circuit court erred by granting summary
judgment on her negligence claim because a Sacred Heart nurse had a duty of
ordinary care and he breached that duty by: (1) administering analgesic medication
to her before the treating physician had an informed consent discussion with her;
and (2) failing to notify the physician that the medication had been administered
before the informed consent discussion occurred. Wetterling suggests that she was
incapable of providing informed consent after receiving the medication, and that she
would not have consented to the procedure that ultimately led to her serious injuries
if she had not been medicated before the doctor sought her consent.
¶2 Even if we assume that the nurse had a duty of ordinary care and that
he breached that duty, we conclude that Sacred Heart cannot be held liable for
Wetterling’s claimed lack of informed consent. Neither WIS. STAT. § 448.30 (2021-
22),2 nor any other law of which we are aware creates a duty or liability on the part
of individuals other than a patient’s treating physician to ascertain whether a patient
is capable of providing his or her informed consent. Only the physician performing
1
Sacred Heart and Preferred are represented by the same counsel. For simplicity, we will
refer to only Sacred Heart when discussing both Preferred and Sacred Heart’s arguments.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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No. 2021AP1694
Wetterling’s procedure had the obligation to determine whether Wetterling had the
mental capacity to provide her informed consent for the procedure. Thus, any
negligence that might have occurred before the informed consent discussion is too
remote, in a legal sense, from Wetterling’s injuries and is therefore barred by public
policy, as reflected in § 448.30. Accordingly, we affirm the circuit court’s grant of
summary judgment.
BACKGROUND
¶3 In the summer of 2016, Wetterling’s primary care physician
discovered a cavitary lesion on Wetterling’s left lung. The physician subsequently
referred Wetterling to Dr. Fadi Sabbagh for a pulmonary examination. Sabbagh
confirmed that Wetterling had a small cavitary lesion and, given its location,
recommended that Wetterling undergo a CT-guided biopsy to further evaluate it.
Sabbagh informed Wetterling that the procedure “was very safe” but might result in
some localized bleeding. After discussing the procedure with Sabbagh, Wetterling
agreed to go forward with the biopsy, which was later scheduled to be performed
by Dr. Mark Southard at Sacred Heart.
¶4 On the day of the biopsy, Wetterling arrived at Sacred Heart with her
mother, Sharon Wetterling,3 at approximately 8:00 a.m. Hospital staff subsequently
directed Wetterling to a lab for her to provide a blood sample. Shortly thereafter,
Nurse Michael LuCore, who was an employee of Sacred Heart, led Wetterling and
Sharon to a room where Wetterling changed into a hospital gown. At approximately
3
Because Sharon shares the same last name as Wetterling, we will refer to her by her first
name throughout the duration of this opinion.
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No. 2021AP1694
8:53 a.m., LuCore administered Valium and Hydrocodone to Wetterling in
preparation for the biopsy.
¶5 At some point, Dr. Southard entered the room and had a conversation
with Wetterling, Sharon, and LuCore—the timing and content of this conversation,
however, are highly disputed. According to Southard, he came into the room and
had an informed consent conversation with Wetterling before “authorizing” her to
receive Valium or any analgesic medication. Sharon and LuCore agreed, however,
that Southard did not come into the room until after Wetterling had received that
medication. LuCore did not specifically recall whether he told Southard that
Wetterling had already received the medication, but he noted that he typically would
do so.
¶6 Consistent with Dr. Southard’s recollection, LuCore recalled that
Southard discussed the procedure’s risks with Wetterling sometime before 9:10 a.m.
LuCore also believed that Wetterling was “very alert” during her conversation with
Southard. Sharon, on the other hand, recalled that Wetterling “was a little dopey in
her speech and her relaxation” within five to ten minutes of receiving the
medication. Sharon also stated that Southard never discussed the risks of the
procedure with Wetterling. Wetterling could not recall whether she received
medication before speaking to Southard, nor could she recall whether Southard
informed her of the procedure’s risks, although she believed that he did not.
¶7 Eventually, Sharon signed an informed consent form, in lieu of
Wetterling’s signature. Doctor Southard and LuCore also signed the form, and all
of the signatures listed a time of 9:10 a.m. LuCore later acknowledged that he had
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No. 2021AP1694
asked Sharon to sign the informed consent form because Wetterling, who was not a
minor, could have been under the influence of her medication.4
¶8 After Sharon signed the informed consent form, Wetterling was taken
to the procedure room for the CT-guided biopsy. During the procedure,
Dr. Southard collected several tissue samples, sent those samples to the pathology
department, and evaluated Wetterling for complications. When Southard finished,
Wetterling was taken back to a recovery room. Thereafter, Wetterling reported
chest pain, but she was later discharged and left the hospital.
¶9 Wetterling’s condition worsened during her drive home. Sharon
subsequently called an ambulance, and Wetterling was transported to a local
emergency room before being transferred back to Sacred Heart. Once there,
Dr. Richard Daniels performed a splenectomy during a general abdominal
exploration surgery. According to Sharon, Daniels reported that Wetterling had
“punctures in her spleen.”
¶10 Nearly two years after Wetterling’s splenectomy, Wetterling
commenced this medical malpractice action, asserting several causes of action
including negligence claims against both Dr. Southard and Sacred Heart.
Specifically, Wetterling alleged that Southard had negligently perforated her spleen
while performing the CT-guided biopsy. She also alleged that Sacred Heart was
liable under the doctrine of respondeat superior for the negligence of Southard and
Sacred Heart employees. In a later amended complaint, Wetterling added a claim
4
The parties do not dispute, for purposes of this appeal, that Sharon lacked the legal
authority to provide informed consent on behalf of Wetterling.
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No. 2021AP1694
against Southard and Sacred Heart for failing to obtain Wetterling’s informed
consent before the biopsy.
¶11 Sacred Heart later moved for summary judgment on all of
Wetterling’s claims against it. Sacred Heart argued that the duty to obtain informed
consent rests entirely on the treating physician and that hospitals and their
employees cannot be held liable for any deficiencies in obtaining informed consent.
It also argued that it could not be held liable under the doctrine of respondeat
superior for Dr. Southard’s negligence because he is not a Sacred Heart employee.
¶12 In response, Wetterling conceded that Dr. Southard is not Sacred
Heart’s employee. Nonetheless, Wetterling argued that her informed consent claim
against Sacred Heart could not be dismissed because LuCore had a duty under
Sacred Heart’s internal policies to ensure that Wetterling gave informed consent.
Wetterling also argued that her respondeat superior claim against Sacred Heart
could not be dismissed because there was a genuine issue of material fact about
whether LuCore negligently failed to satisfy his responsibilities under Sacred
Heart’s policies.
¶13 Following Wetterling’s response, the Wisconsin Injured Patients and
Families Compensation Fund (“the Fund”) filed a brief joining Sacred Heart’s
motion for summary judgment. In addition to the arguments already made by
Sacred Heart, the Fund argued that Sacred Heart’s policies cannot “establish the
standard of care duty in a medical negligence claim.”
¶14 The circuit court held oral argument and later granted summary
judgment in favor of Sacred Heart, dismissing all claims and causes of action against
it. In doing so, the court concluded that a hospital’s policies regarding informed
consent do not create a legal duty or allow patients to sue based on any standard of
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No. 2021AP1694
care derived from those policies. The court further concluded that the duty of
obtaining informed consent rests solely with the doctor and has not been extended,
under Wisconsin law, to hospitals or hospital staff.
¶15 Wetterling now appeals. Additional facts will be provided as
necessary below.
DISCUSSION
¶16 We review the circuit court’s grant of summary judgment de novo,
applying the same methodology as the circuit court. DSG Evergreen Fam. Ltd.
P’ship v. Town of Perry, 2020 WI 23, ¶15, 390 Wis. 2d 533, 939 N.W.2d 564.
Summary judgment must be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” WIS. STAT. § 802.08(2). In determining whether
there are any genuine issues of material fact, “we draw all reasonable inferences
from the evidence in the light most favorable to the non-moving party.” Burbank
Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274, 717
N.W.2d 781. We can affirm a grant of summary judgment on different grounds
from those relied on by the circuit court. International Flavors & Fragrances, Inc.
v. Valley Forge Ins. Co., 2007 WI App 187, ¶23, 304 Wis. 2d 732, 738 N.W.2d
159.
¶17 Well-established Wisconsin law provides that the treating
physician—not the hospital—bears the duty of advising a patient of a treatment’s
risks and ensuring that the patient provides his or her informed consent. Mathias v.
St. Catherine’s Hosp., 212 Wis. 2d 540, 548, 569 N.W.2d 330 (Ct. App. 1997).
That duty is codified in WIS. STAT. § 448.30, which provides in pertinent part:
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No. 2021AP1694
Any physician who treats a patient shall inform the patient
about the availability of reasonable alternate 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:
(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.
(7) Information about alternate medical modes of treatment
for any condition the physician has not included in his or her
diagnosis at the time the physician informs the patient.
Id.; see also Mathias, 212 Wis. 2d at 548. “The doctrine of informed consent is
grounded in the doctor’s duty to inform the patient of ‘significant potential
risks … so that [the patient can] make a rational and informed decision of whether
[to] … undergo the proposed procedures.’” Hageny v. Bodensteiner, 2009 WI App
10, ¶16, 316 Wis. 2d 240, 762 N.W.2d 452 (2008) (alterations in original; quoting
Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 11, 227 N.W.2d 647(1975)).
¶18 Wetterling does not dispute that LuCore, as a nurse, did not have a
duty to obtain her informed consent prior to the CT-guided biopsy. Rather, she
argues that LuCore had a duty of ordinary care and that he breached that duty by
administering analgesic medication before Dr. Southard obtained her consent and
by failing to inform Southard that those medications had been administered before
the informed consent discussion occurred. According to Wetterling, LuCore created
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No. 2021AP1694
a situation in which she “was incapable of giving informed consent for the biopsy.”
Thus, in this appeal, we must determine whether a hospital can be held liable for an
employee’s actions that affected a patient’s mental capacity to provide informed
consent for a medical procedure.5
¶19 The parties’ briefing focuses largely on whether LuCore had a duty of
care, whether Sacred Heart’s internal policies could establish a duty or could
evidence the relevant standard of care, and whether LuCore breached his alleged
duty. Ultimately, we need not reach these issues because even if we assume that
LuCore had a duty and that he breached the relevant standard of care, we conclude
that Sacred Heart cannot be held liable under the circumstances of this case.
¶20 At oral argument, Sacred Heart and the Fund repeatedly emphasized
that WIS. STAT. § 448.30 applies to only physicians. They further noted that a
physician has both the obligation and the opportunity to determine whether the
patient is capable of providing informed consent, regardless of what might have
occurred before the informed consent discussion. The Fund and Sacred Heart
likened the physician’s assessment of a patient’s capacity to a type of “superseding
cause” or an event that would cut off any possible liability on the part of a nurse.
¶21 As Sacred Heart and the Fund stressed at oral argument, our
legislature has not extended the scope of the informed consent duty—or the scope
of liability—beyond the treating physician. See WIS. STAT. § 448.30.
Section 448.30 speaks in terms of only a physician’s duty to inform the patient; it
does not address circumstances, such as here, where an individual’s actions affect
5
Although the facts are disputed as to whether the medication actually impaired
Wetterling’s mental capacity, we assume for purposes of summary judgment that the medication
did affect Wetterling’s capacity to provide informed consent.
9
No. 2021AP1694
the patient’s mental capacity before the physician’s informed consent discussion.
Although our legislature has created informed consent statutes for other medical
professionals, such as podiatrists, physician assistants and chiropractors, see WIS.
STAT. §§ 448.697, 448.9785, 446.08, it—again—has not created a duty or possible
liability for other individuals who interact with patients prior to their informed
consent discussions.
¶22 The absence of an express duty or standard of care for an individual
who interacts with a patient prior to the physician is consistent with a physician’s
obligations in WIS. STAT. § 448.30 and the nature of an informed consent
discussion. Section 448.30 requires that a physician “inform the patient about the
availability of reasonable alternate medical modes of treatment and about the
benefits and risks of these treatments.” See id. (emphasis added). “Inform” means
“to communicate knowledge to [a person]” or to “make [a person] acquainted.”
Inform, WEBSTER’S THIRD NEW INT’L DICTIONARY (unabr. 1993). Thus, when
considered in the context of § 448.30,6 the word “inform” means more than a
physician merely reciting the relevant information; rather, the physician must
actually convey the information in a manner such that the patient can understand it
and use it to make an informed decision.7
“[T]he context of a statutory scheme is important to the plain meaning of the text.”
6
Townsend v. ChartSwap, LLC, 2021 WI 86, ¶16, 399 Wis. 2d 599, 967 N.W.2d 21.
7
“For example, a physician can mouth words to an infant, or to a comatose person, or to
a person who does not speak his or her language but, unless and until such patients are capable of
understanding the physician’s point, the physician cannot be said to have” informed the patient of
anything. See Macy v. Blatchford, 8 P.3d 204, 210 (Or. 2000).
10
No. 2021AP1694
¶23 It therefore follows that a physician has an inherent responsibility
under WIS. STAT. § 448.30 to assess whether the patient understands the provided
information and whether the patient is capable of using that information to
intelligently exercise his or her right to consent to a treatment.8 This responsibility
also comports with the general purpose of an informed consent discussion, which is
to ensure that patients receive information that enables them “to intelligently
exercise [their] right to consent or to refuse the treatment or procedure proposed.”9
See Scaria, 68 Wis. 2d at 13; see also Hageny, 316 Wis. 2d 240, ¶8.
¶24 Importantly, a physician also has the opportunity to assess the
patient’s mental capacity to give informed consent. When a physician discusses the
necessary information with a patient, the physician has a chance to converse with
the patient, ask questions about how the patient is feeling, and observe the patient’s
overall demeanor. Regardless of what might have occurred before this
conversation, the physician can—and must—determine for him- or herself whether
the patient understands the physician’s communications and whether the patient is
capable of providing informed consent for a treatment. Notably, as the Fund
discussed at oral argument, physicians are routinely confronted with patients who
might be impaired by alcohol, pain, illicit or prescribed drugs, or some other
8
WISCONSIN STAT. § 448.30 excuses a physician from providing “[d]etailed technical
information that in all probability a patient would not understand” and “[i]nformation in cases
where the patient is incapable of consenting.” Sec. 448.30(2), (6) (emphasis added). Although
these provisions do not expressly require a physician to evaluate a patient’s understanding or ability
to consent, they are nonetheless consistent with that principle. Here, there is no issue with the fact
that, prior to the administration of medication, as a general matter, Wetterling would be capable of
providing informed consent.
9
In 2013, the legislature amended the standard under which a physician’s disclosures are
judged from the “prudent patient standard,” see Brown v. Dibbell, 227 Wis. 2d 28, 43, 595 N.W.2d
358 (1999), to “[t]he reasonable physician standard.” See 2013 Wis. Act 111; see also WIS. STAT.
§ 448.30. However, that amendment does not appear to have changed the ultimate purpose of
§ 448.30.
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No. 2021AP1694
impediment. Therefore, even if LuCore did not inform Dr. Southard that Wetterling
had received analgesic medication, such an omission did not prevent or inhibit
Southard’s ability to determine whether Wetterling had the mental capacity to
provide her informed consent.
¶25 Wetterling argues that LuCore’s action of administering analgesic
medication before the informed consent discussion is analogous to a motor vehicle
passenger abruptly grabbing the steering wheel and causing a crash. We disagree.
This is not a circumstance in which LuCore “prevented” Dr. Southard from
obtaining Wetterling’s informed consent. As the undisputed facts show, LuCore
administered the analgesic medication roughly seventeen minutes before the
informed consent form was signed. And, as discussed, Southard had both the
obligation and opportunity to assess whether Wetterling had the mental capacity to
provide informed consent. Furthermore, this is not a situation in which Southard
could not have corrected any mistake that LuCore might have made. Southard had
the opportunity to ask LuCore or Wetterling whether Wetterling had taken any
medication. He also had the opportunity to independently evaluate Wetterling for
any signs of impairment. For those reasons, this case is not analogous to a situation
in which a motor vehicle driver is unable to correct a passenger’s abrupt yank on
the steering wheel.
¶26 Likewise, Wetterling’s reliance on Peeples v. Sargent, 77 Wis. 2d
612, 253 N.W.2d 459 (1977), is misplaced. In Peeples, our supreme court
concluded that there was sufficient evidence at trial for the jury to find several nurses
and a hospital negligent for a patient’s injuries. Id. at 629-30. Unlike the
circumstances in this case, however, the alleged negligence did not involve the
informed consent process. See id. Furthermore, and importantly, the treating doctor
was not exclusively responsible under a particular statute for the care at issue, nor
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No. 2021AP1694
does it appear that the doctor had the same clear obligation and opportunity—as
Dr. Southard had in this case—to address any preceding negligence that might have
occurred on the part of the nurses. See id. at 628-30.
¶27 Although Sacred Heart and the Fund referred to Dr. Southard’s
obligation and opportunity to assess Wetterling’s mental capacity as a type of
“superseding cause,” the intervening or superseding cause doctrine has been
supplanted in Wisconsin by a public policy ground that precludes liability where
“the injury is too remote from the negligence.”10 Cefalu v. Continental W. Ins. Co.,
2005 WI App 187, ¶¶20-21, 285 Wis. 2d 766, 703 N.W.2d 743 (citation omitted);
see also Fandrey v. American Fam. Mut. Ins. Co., 2004 WI 62, ¶15 n.12, 272
Wis. 2d 46, 680 N.W.2d 345. This sole public policy ground provides a sufficient
basis to deny liability in this case. See Hornback v. Archdiocese of Milwaukee,
2008 WI 98, ¶49, 313 Wis. 2d 294, 752 N.W.2d 862. It also, along with the other
public policy grounds, reflects the principle that “we trace the consequences of one’s
negligent acts, not indefinitely, but to a certain point.” Cefalu, 285 Wis. 2d 766,
¶24 (citation omitted).
¶28 Whether a public policy consideration precludes liability is a question
of law that we review de novo. Smaxwell v. Bayard, 2004 WI 101, ¶40, 274 Wis. 2d
278, 682 N.W.2d 923. Generally, we will refrain from considering whether public
policy grounds preclude liability until after a trial on the negligence claim, but we
may consider the public policy issue “where the facts presented are simple to
10
Courts may also deny liability on public policy grounds where: (1) “the recovery is
‘wholly out of proportion to the culpability of the negligent tort-feasor’”; (2) “the harm caused is
highly extraordinary given the negligent act”; (3) “recovery ‘would place too unreasonable a
burden’ on the negligent tort-feasor”; (4) “recovery would be ‘too likely to open the way to
fraudulent claims’”; or (5) “recovery would enter into ‘a field that has no sensible or just stopping
point.’” Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶49, 313 Wis. 2d 294, 752 N.W.2d
862 (citation omitted).
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No. 2021AP1694
ascertain and the public policy questions have been fully presented.” Hornback,
313 Wis. 2d 294, ¶51.
¶29 Here, the facts—viewed in the light most favorable to Wetterling—
are simple, and the public policy questions have been fully developed through
briefing and oral argument. When considering that WIS. STAT. § 448.30 makes the
treating physician exclusively responsible for obtaining a patient’s informed
consent, that the legislature has not expressly created a duty for—or extended
liability to—other individuals interacting with the patient before the informed
consent discussion, and that a physician has the obligation and, as here, the
opportunity to assess the patient’s mental capacity before the patient provides his or
her informed consent, we agree that any negligent actions on the part of LuCore
before the informed consent discussion are “too remote” from Wetterling’s ultimate
injuries. See Hornback, 313 Wis. 2d 294, ¶49 (citation omitted). The remoteness
is largely in a legal sense, tied to the statutory policy reflected in § 448.30, rather
than in a strict temporal sense. Doctor Southard had an obligation and opportunity
to assess Wetterling’s ability to provide informed consent for the procedure.
Furthermore, Wetterling does not contend that LuCore’s administration of the
analgesic medication was somehow negligent on its own or caused her injury
beyond the potential impact on her ability to provide informed consent.
¶30 Accordingly, we conclude—under the specific facts of this case—that
Sacred Heart cannot be held liable under the doctrine of respondeat superior for any
negligent actions that LuCore might have committed prior to Dr. Southard’s
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No. 2021AP1694
informed consent discussion with Wetterling.11 Thus, the circuit court properly
granted summary judgment and dismissed Wetterling’s claims against Sacred Heart.
By the Court.—Judgment affirmed.
11
Of course, the facts are disputed as to whether Dr. Southard actually informed
Wetterling about “the availability of reasonable alternate medical modes of treatment and about the
benefits and risks of these treatments.” See WIS. STAT. § 448.30. This factual dispute, however,
does not prevent us from concluding that Sacred Heart cannot be held liable for LuCore’s allegedly
negligent actions.
2