informed consent doctrine in Wisconsin

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2009Prosser, Handbook of the Law of Torts § 32 at 165 (4th ed. 1971) (internal footnotes omitted). 14 See also Hannemann, 282 Wis. 2d 664, ¶ 35 ("In Trogun , this court determined that it was no longer appropriate to treat the failure to obtain informed consent as an assault and battery and instead 'recognized a legal duty, bottomed upon a negligence theory of liability....'" (quoting Trogun, 58 Wis. 2d at 600 )); Johnson v. Kokemoor, 199 Wis. 2d 615, 629 , 545 N.W.2d 495 (1996) ("The court further developed the doctrine of informed consent in TrogunU, stating for the first time that a plaintiff-p

2009Id. at 12 , 227 N.W.2d 647 . ¶ 54 The court also made clear that, because the informed consent standard adopted in Trogun was an objective standard based on negligence principles such as reasonableness, the physician's duty to inform is not boundless.

2009Id. at 12 , 227 N.W.2d 647 . ¶ 54 The court also made clear that, because the informed consent standard adopted in Trogun was an objective standard based on negligence principles such as reasonableness, the physician's duty to inform is not boundless.

2004This principle of self-determination has been extended to the doctrine of informed consent: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." Id. (quoting Scholendorff v. Society of New York Hosp., 105 N.E. 92 -93 (1914)).

1998The 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)).

1998The premise behind the informed consent doctrine is that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body ...." Canterbury v. Spence, 464 F.2d 772, 780 (D.C.

1996Finally, the Canterbury court's decision-which, as the Martin court underscored last term, provides the basis for Wisconsin's doctrine of informed consent, Martin, 192 Wis. 2d at 173 -states explicitly that under the doctrine of informed consent, "[t]here is no bright line separating the significant from the insignificant." Canterbury, 464 F.2d at 788 .

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2009Prosser, Handbook of the Law of Torts § 32 at 165 (4th ed. 1971) (internal footnotes omitted). 14 See also Hannemann, 282 Wis. 2d 664, ¶ 35 ("In Trogun , this court determined that it was no longer appropriate to treat the failure to obtain informed consent as an assault and battery and instead 'recognized a legal duty, bottomed upon a negligence theory of liability....'" (quoting Trogun, 58 Wis. 2d at 600 )); Johnson v. Kokemoor, 199 Wis. 2d 615, 629 , 545 N.W.2d 495 (1996) ("The court further developed the doctrine of informed consent in TrogunU, stating for the first time that a plaintiff-p

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2009Prosser, Handbook of the Law of Torts § 32 at 165 (4th ed. 1971) (internal footnotes omitted). 14 See also Hannemann, 282 Wis. 2d 664, ¶ 35 ("In Trogun , this court determined that it was no longer appropriate to treat the failure to obtain informed consent as an assault and battery and instead 'recognized a legal duty, bottomed upon a negligence theory of liability....'" (quoting Trogun, 58 Wis. 2d at 600 )); Johnson v. Kokemoor, 199 Wis. 2d 615, 629 , 545 N.W.2d 495 (1996) ("The court further developed the doctrine of informed consent in TrogunU, stating for the first time that a plaintiff-p

2009Although there was no motion submitted in this case, we treat the circuit court's dismissal of the informed consent claim against Dr. Brusky as if a motion had been made under Wis. Stat. § 805.14 (4). ¶ 31 To determine whether the circuit court erred when it decided, as a *912 matter of law, that the Bubbs did not present a claim against Dr. Brusky under Wis. Stat. § 448.30 , we review the court's decision to resolve whether there was any credible evidence in the record for the jury to determine that Dr. Brusky was negligent in failing to adequately inform the Bubbs regarding "alternate, viabl

2009Although there was no motion submitted in this case, we treat the circuit court's dismissal of the informed consent claim against Dr. Brusky as if a motion had been made under Wis. Stat. § 805.14 (4). ¶ 31 To determine whether the circuit court erred when it decided, as a *912 matter of law, that the Bubbs did not present a claim against Dr. Brusky under Wis. Stat. § 448.30 , we review the court's decision to resolve whether there was any credible evidence in the record for the jury to determine that Dr. Brusky was negligent in failing to adequately inform the Bubbs regarding "alternate, viabl

2024Co. of Wis., 223 Wis. 2d 417, 434 , 588 N.W.2d 26 (1999) (an informed consent claim requires a showing of a “breach of a duty that caused an injury”).

2024Co. of Wis., 223 Wis. 2d 417, 434 , 588 N.W.2d 26 (1999) (an informed consent claim requires a showing of a “breach of a duty that caused an injury”).

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2024Bubb v. Brusky (Bubb II), 2009 WI 91, ¶47 , 321 Wis. 2d 1 , 768 N.W.2d 903 (citation omitted).

2012See Trogun, 58 Wis. 2d at 599 (explaining that "a failure to disclose the ramifications of a pending course of treatment, therapy, or surgery" was the issue in an informed consent claim); Martin, 192 Wis. 2d at 176 (concluding that "[a] physician who proposes to treat a patient or [to] attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed"); Johnson, 199 Wis. 2d at 630 (concluding that the "concept of informed consent i

2004Our supreme court has recognized that the right to liberty under the state constitution "includes an individual's choice of whether or not to accept medical treatment." L.W., 167 Wis. 2d at 69 .

1998See 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).

2019Id., ¶13. ¶115 I part ways with the majority, however, in its treatment of the Paynters' informed consent claim.2 In my view, the majority's proffered test is unworkable. ¶116 Instead of applying Wisconsin's statute of limitations to an informed consent claim when the injury is "felt" in Wisconsin, I would turn to the familiar International Shoe test.3 Applying that test, I determine that the Paynters' informed 1 The borrowing statute, Wis. Stat. § 893.07 , provides: (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has ex

2010We cited with approval the informed consent standard from Martin that "Wisconsin law 'requires that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis,'" see Kuklinski, 203 Wis. 2d at 329 (citation omitted). ¶ 33.

1998See Martin, 192 Wis. 2d at 169 , 531 N.W.2d 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).

1986As our supreme court explained in Throne v. Wandell, 176 Wis. 97, 101 , 186 N.W. 146, 147 (1922) (citations omitted): Where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and where no emergency exists making it impracticable to confer with him, his consent is a prerequisite to a surgical operation by his physician.

1986As our supreme court explained in Throne v. Wandell, 176 Wis. 97, 101 , 186 N.W. 146, 147 (1922) (citations omitted): Where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and where no emergency exists making it impracticable to confer with him, his consent is a prerequisite to a surgical operation by his physician.