I normally wouldn’t do this but you need to see excerpts from an article in the Wisconsin State Journal to understand the nature of this case. I have abridged as much as possible.

Thomas Jandre was driving to a job site when the left side of his face started drooping. He began drooling, his speech became slurred and he felt dizzy and weak in his legs.

He went to the emergency room at St. Joseph’s Hospital in West Bend. Dr. Therese Bullis did a physical exam to rule out a stroke. She ordered a CT scan to rule out a hemorrhagic stroke. To check for an ischemic stroke, from a clot, she used a stethoscope to listen for unusual blood flow in his carotid artery. She diagnosed Jandre with Bell’s palsy, inflammation of a nerve that controls facial movement.

Eleven days later, Jandre had a massive stroke that caused permanent damage to the left side of his body. An ultrasound showed the carotid artery along his neck was 95 percent blocked.

Bullis was negligent in not telling Jandre he could have had a carotid ultrasound when she saw him, the Wisconsin Supreme Court ruled in April. The test might have led to treatments to prevent the stroke.

The supreme court affirmed an appeals court decision that upheld a $2 million jury award in 2008 to Jandre, now 57, whose stroke occurred in 2003. The jury said Bullis wasn’t negligent in her diagnosis of Bell’s palsy but found her negligent in her duty of informed consent because she failed to discuss the carotid ultrasound.

The decision “leaves physicians in the difficult position of not knowing how much information a physician should provide to a patient about tests for diagnoses already ruled out by the physician,” said a statement by three Wisconsin MD organizations.

The groups said the decision could drive up healthcare costs by requiring unnecessary tests. They’re calling for state legislation to clarify informed consent.

But Dr. Sheldon Wasserman, chairman of the state Medical Examining Board, said he agrees with the ruling. “You should give patients all the information they need and more,” he said.

Jim Weis, the Wausau attorney who represented Jandre, said if Bullis had conducted a “one-minute conversation” with Jandre about the ultrasound, “the stroke would have been avoided.”

A second article noted that the doctor was reprimanded by the state medical board and fined $300. It also says that the state legislature may introduce a bill to clarify the informed consent law.

Wow! I agree that the ED physician was not negligent in arriving at the wrong diagnosis. That can happen. It’s not negligence if you do everything right and come up with the wrong answer. According to the courts, her “negligence” was in not telling the patient that a carotid ultrasound could have been done.

Just how would a “one-minute conversation” with the patient have avoided the stroke? Would the patient then have had the option to demand the test? If that is so, why not skip the history and physical examination by the doctor altogether and let the patient choose from an a la carte menu of diagnostic tests when he comes through the door?

This case opens up a huge can of worms. Should all patients who are determined by an ED MD to not have appendicitis be told that they could have a CT scan and if that is negative, an ultrasound? Might as well throw in an MRI too, even though it has never been proven to be useful for that illness.

Will the state legislature solve the problem of informed consent brought up by this case? Maybe. The Wisconsin Assembly has passed a bill that would modify the informed consent law by saying that a reasonable physician does not have to tell a patient about other tests for conditions that have been ruled out.

However, the State Senate has not acted upon the bill yet.

Meanwhile, doctors in Wisconsin just might be ordering a few extra tests these days.

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last three years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 6400 followers on Twitter.

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