As a general rule, patients have a duty to exercise ordinary care for their own health and well-being, and contributory negligence may, under certain circumstances, be a defense in an informed consent action. The very patient-doctor relation assumes trust and confidence on the part of the patient, and it would require an unusual set of facts to render a patient guilty of contributory negligence when the patient relies on the doctor.A patient's duty to exercise ordinary care in an informed consent action includes a patient's duty to tell the truth and give complete and accurate information about personal, family, and medical histories to a doctor to the extent possible in response to the doctor's requests for information when the requested information is material to the doctor's duty prescribed in Wis. Stat. § 448.30.
After plaintiff wife experienced problems following her prophylactic bilateral mastectomies, she and her husband filed an action under an informed consent statute claiming that defendant doctor failed to inform her about less radical treatment. According to defendant, he advised plaintiff that a lump was part of an implant, but plaintiff rejected recommendations of periodic follow-ups and insisted on more radical treatment due to *** cancer suffered by her twin sister, mother, and other relatives. Plaintiffs husband and wife, and defendants doctor, clinic, and insurer cross appealed a reversal by the Court of Appeals (Wisconsin) of a judgment upon a jury verdict that defendant doctor violated the informed consent statute while plaintiff wife's negligence contributed to her injury.
Did conduct by the patient constitute contributory negligence in an informed consent action?
A patient is usually the primary source of information about the patient's material personal, family and medical histories. If a doctor is to provide a patient with the information required by Wis. Stat. § 448.30, it is imperative that in response to a doctor's material questions a patient provide information that is as complete and accurate as possible under the circumstances. We therefore conclude that for patients to exercise ordinary care, they must tell the truth and give complete and accurate information about personal, family and medical histories to a doctor to the extent possible in response to the doctor's requests for information when the requested information is material to a doctor's duty as prescribed by § 448.30 and that a patient's breach of that duty might, under certain circumstances, constitute contributory negligence. The rationale underlying the doctrine of informed consent and a doctor's duty to inform a patient is that a patient has a right to decide whether to consent to or refuse a proposed course of treatment. A patient cannot make an informed decision unless a doctor discloses information material to the patient's decision. Generally, in an informed consent action, a patient's duty to exercise ordinary care does not impose on the patient an affirmative duty to ascertain the truth or completeness of the information presented by the doctor; nor does a patient have an affirmative duty to ask questions or independently seek information. The informed consent statute recognizes that a patient is not in a position to know treatment options and risks and, if unaided, is unable to make an informed decision.