Physician Not Negligent for Failure to Diagnose Stroke But Negligent for Failure to Offer Ultrasound That Would Have Prevented Faulty Diagnosis

A physician found not negligent for misdiagnosing a patient was nevertheless negligent for failing to inform the patient of treatment options that would have prevented the misdiagnosis. The plaintiff presented with symptoms that the defendant diagnosed as Bell’s palsy, even though the plaintiff’s symptoms were not typical. There is no test for Bell’s palsy; rather, a diagnosis is reached by ruling out all other causes of the symptoms. The plaintiff’s symptoms were typical of an ischemic stroke. An ischemic stroke can be a warning sign that a major life-threatening stroke is imminent. The best way to detect an ischemic stroke is with ultrasound. The defendant did not inform the plaintiff of this option, instead making the Bell’s palsy diagnosis using an admittedly less-reliable diagnostic method to rule out ischemic stroke. Eleven days later the plaintiff suffered a massive stroke that may have been prevented with proper treatment of the ischemic stroke.


The plaintiff sued for negligent diagnosis and failure to disclose treatment options. A jury found the diagnosis was not negligent but the failure to disclose treatment options was. On appeal, the defendant argued that once a physician makes a non-negligent final diagnosis, there is no duty to inform the patient about diagnostic tests for conditions unrelated to the condition that was included in the final diagnosis.


Under the facts of this case, the trial court could not conclude that, as a matter of law, the physician had no duty to inform the patient of the possibility that the cause of his symptoms might be a blocked artery, which posed imminent, life-threatening risks, and of the availability of alternative, non-invasive means of ruling out or confirming the source of his symptoms.


The Wisconsin Supreme Court affirmed the appellate court and found there is no bright-line rule for determining the scope of informed consent. Rather, under the “reasonable patient standard” a physician must disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis, even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis. The Court held the physician had a duty to inform the patient of the availability of a carotid ultrasound, an alternative, non-invasive, viable means of determining whether he had suffered an ischemic stroke, rather than an attack of Bell's palsy.


See: Jandre v. Wisconsin Injured Patients and Families Compensation Fund, 2012 WL 1292777 (Wis.  Apr 17, 2012) (not designated for publication).