MADISON, Wis. (CN) - The Wisconsin Supreme Court found on Friday that an obstetrician-gynecologist must face consent claims after she recommended a surgeon remove a woman's ovaries during another procedure, without the patient's consent.

In 2018, Melissa Hubbard was being treated by Dr. Carol Neuman at MercyHealth North in Janesville for pelvic endometriosis. Neuman referred Hubbard to a surgeon, Dr. Michael McGauley, for a robotically assisted laparoscopic colon resection to assess Hubbard's condition.   

What Hubbard says she didn't know was that Neuman had recommended that McGauley also remove her ovaries during that procedure. She says neither physician consulted her about this plan that she never would have gotten on the table if she had known.

Hubbard sued Neuman over claims of medical malpractice in 2021, saying that the doctor had a duty to inform her of the recommendation. Neuman moved to dismiss the case, arguing that she had no such obligation because she did not perform the surgery. Two lower courts agreed with Hubbard, and Neuman appealed.

On Friday, the Wisconsin Supreme Court upheld circuit court and appeals court decisions, ruling that Neuman could be considered a treating physician in this case because of her involvement in the procedure's planning stage. Though the opinion does not entitle Hubbard to relief, it does open the door for a ruling on the merits of her claim.

Neuman argues in her briefings that she wasn't required by state law to inform Hubbard because she didn't perform the surgery and therefore wasn't a "treating physician." She asserts that the treating physician under the law is the surgeon who removed Hubbard's ovaries.

In a nine-page opinion, Chief Justice Ann Walsh Bradley disagreed and suggested that Neuman may misunderstand the meaning of the word "treats" in the state's informed consent statute. Neuman could be a treating physician because she was Hubbard's OB-GYN before and after the surgery and had intimate involvement in the pre-surgery planning stage, Bradley said.

Friday's written opinion, the first opinion of Walsh Bradley's brief tenure as chief justice before her retirement in June, did not focus on the merits of the case. The circuit court will now have to determine whether the OB-GYN had a legal obligation to present Hubbard with all of her treatment options before making recommendations to the surgeon.

Hubbard argues in a brief to the court that Neuman went beyond casually recommending a treatment option, and should have given Hubbard the chance to choose whether to have her ovaries removed.

"It was not conveyed during a brief encounter in an elevator," Hubbard said in the brief. "It was not brought out during a coffee break in the cafeteria. The Court of Appeals correctly noted that Neuman 'engaged in pre-surgery discussions and planning with Dr. McGauley.'"

Walsh Bradley seemed to agree that Neuman went beyond a simple recommendation but stopped short of saying the physician had a clear obligation to inform Hubbard of the new surgical plan. The chief justice only addressed whether Hubbard's complaint states a sufficient claim to survive Neuman's motion to dismiss.

The OB-GYN argues that a ruling in favor of Hubbard would run the risk of discouraging all physicians from free and open communication for fear of legal liability, whether they are performing a procedure or not.

Walsh Bradley addressed this point at length, saying informed consent cases are "fact driven and context specific." The court doesn't embrace a broad interpretation of the informed consent statute to include "any" physician who treats a patient, as the Court of Appeals suggested.

Justice Anette Ziegler, who was recently replaced as chief justice by Walsh Bradley, says the majority didn't go far enough in this case, with a 13-page dissent joined by Justice Rebecca Bradley.

In Ziegler's view, the majority failed to sufficiently engage with the informed consent statute or with the opinion's boundaries.

"No physician will know how much involvement is sufficient under the statute," Ziegler said. "The majority provides no guidelines for establishing when a physician has crossed the line."

Rather than engage directly with drawing any kind of line, Walsh Bradley suggested the court could "save for another day" an examination of the boundaries of the informed consent statute.

Hubbard and her attorney could not be reached for comment.

Source: Courthouse News Service