Welcome to The John Marshall Law Review

Author Archives: Law Review

Comment Symposium

By Law Review on Tuesday, September 26th, 2017

You can now register for the symposium here: https://101217lr.eventbrite.com

The John Marshall Law Review is pleased to announce the speakers for the upcoming Fall Comment Symposium. Bobby Greene, Alexandra Verven, Laura Wibberly, John Baglia, Anthony Morelli, Tess Godhardt, and Kerby Kniss will all provide insight on their comments. Be sure not to miss this insight into legal scholarship and sneak peek at the upcoming publications for the Law Review. The event is scheduled for Thursday, October 12th from 4:00 pm until 6:10 pm, and will take place in 3 East of the John Marshall Law School’s State Street building. Further details are provided in the link below.


2016 Braun Symposium on Restorative Justice

By Law Review on Sunday, October 16th, 2016

The John Marshall Law Review is proud to be hosting, with The John Marshall Law School, the 2016 Braun Symposium on Restorative Justice.

The criminal justice system is constantly adapting to the ideologies and public policies of the society it serves. In the age of mass incarceration, our judicial system has become too focused on achieving retribution against offenders, rather than seeking better outcomes for offender and victim alike. Alternatively, restorative justice is a rapidly developing area of reform focused on reducing recidivism rates and mass incarceration by not only addressing, but rebuilding, the relationship between victim and offender.

The 23rd Annual Braun Symposium will focus on the practical applications of restorative justice in correctional facilities, the judicial system, and the communities most affected by criminal behavior. Attendees will hear presentations from numerous speakers, including the democratic candidate for Cook County State’s Attorney and a member of the Italian Parliament who has been fighting for reform in Rome, as we review the implementation and practical effects of restorative justice.
Attendance is free.  Attendees may register at the following location:

Freedom of Information, Government Secrets and the Challenge of New Technology

By Law Review on Friday, February 28th, 2014

By:  Michael P. Seng[i], Professor, The John Marshall Law School

I.  Introduction

The United States government’s actions against Sgt. Chelsea Manning and Edward Snowden and other whistleblowers raise serious questions about freedom of information, government secrets, and new technology.  The Obama administration has prosecuted more persons for leaking government secrets than the number previously prosecuted during the entire history of the United States.  An effective and vibrant democracy depends upon an informed citizenry.  Citizens cannot participate in their government without knowing what the government is about. Freedom of information and transparency are thus essential attributes of any democracy.

Yet, every government prefers to operate in secret.  Often secrecy is imposed in the name of efficiency or to protect the privacy of persons, but more often it is imposed to avoid embarrassment and accountability.  Legitimate law enforcement concerns require some secrecy, but law enforcement must be transparent or the public will not be protected against unlawful or invasive law enforcement methods.  Secrecy in international relations is necessary when the government is conducting delicate negotiations with a foreign power or when it is involved in national defense or espionage.  But the public has an important stake in how the government conducts international relations, and too much secrecy in the international arena can undermine democratic institutions at home.

Efficiency can be achieved without impairing the public’s right to know.  Personal privacy can be protected by narrow restraints on the release of information. Embarrassment and accountability can never justify governmental secrecy.  Indeed, we need information to hold public officials accountable.  I will address from an American perspective the tension between freedom of information and the government’s legitimate concerns for secrecy.  However, the tension is present in democracies everywhere.  A democracy must protect freedom of speech and press or it is not truly a democracy.  The language of the United States Constitution sets no limits to freedom of speech and press.  But courts have not read this language so strictly and, therefore, the tension present in the United States between freedom of information and government secrecy are similar to those tensions that exist in all other democracies.

II.  Background

Secrecy has been at war with transparency in the United States since the very beginning.  The American Constitution itself was drafted behind closed doors.  The Bill of Rights in the American Constitution lists speech and press as protected freedoms, but it does not explicitly mention freedom of information.  Throughout American history there has been debate about freedom of information and governmental secrecy.  The debate has become particularly heated today.  The Government is doggedly pursuing Edward Snowden for leaking national security information.  It has prosecuted Chelsea Manning and other whistleblowers for the same reason.  The stakes are stated to be so high because of the so-called “War on Terrorism” and the fears that were inspired by the 9/11 attack on the World Trade Center in New York.

The stakes are also high because of the emergence of new technologies that have revolutionized communications and made it possible for persons all over the world to access information instantaneously.  The communications revolution also makes it easier for the government to spy on individuals and track down perceived law-breakers and enemies.  Technology thus presents opportunities for the spread of information, but it presents opportunities for a more invasive government.  Also, technology allows hostile governments and individuals to access information that they can use to destroy democracy and civil society.  The stakes are high, and the solutions are not clear.   Technology has changed the way we receive and transmit information.  The “press” today is quite different from the press of even twenty-five years ago.  Who is the “press” and what do we mean by “freedom of the press?”  We must answer these questions before we can articulate the right to information and the limits that the government can impose to insure secrecy in the name of national security.

  1. The Constitutional Right to Know

The First Amendment to the United States Constitution speaks in absolute language: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people . . . to petition the Government for a redress of grievances.”  The First Amendment protects all persons, and specifically refers to “the press.”  The word “press” is not defined and the question has arisen whether “the press” has special privileges under the First Amendment, and if so, who is “the press?”  We know the establishment press.  It includes the New York Times and the Washington Post.  The press probably also includes the National Inquirer and Penthouse Magazine. But today, does everyone who establishes a “blog” become “the press?”

While individual Justices on the Supreme Court have argued for a privileged position for the press,[1] the Court itself has been reluctant to adopt such an approach.[2]  Justice Burger stated in First National Bank of Boston v. Bellotti,[3] that the Press Clause does not confer special and extraordinary privileges on the institutional press.  Thus, the approach of the Court has generally been to collapse freedom of speech with freedom of press and accord the same rights to everyone. Under this approach the Court has allowed press access to criminal trials, because trials are open to the public.[4]  But the press is denied special access to deportation proceedings, prisons and jails, and other facilities not generally open to the public.[5]

Yet, the freedom of the press is meaningless if the press has no access to governmental information.  The Supreme Court recognized in Grosjean v. American Press,[6] that an “informed public opinion is the most potent of all restraints upon misgovernment.” Nor can the ideal expressed in New York Times v. Sullivan,[7] “that debate on public issues should be uninhibited, robust, and wide-open,” be realized without access to government information.

Similarly, the First Amendment talks about the right to speak, but the Court has held that the right to speak implies the right to receive information.[8]  In Houchins v. KQED,[9] the Supreme Court rejected the broad principle that freedom of governmental information is implicit in First Amendment guarantees.   In a plurality opinion, Justice Burger held that there was “[n]o First Amendment guarantee of a right of access to all sources of information within government control.”  He stated that the government was not compelled to provide information it did not want to give up.

Even if there is no broad right to government information, the Supreme Court held in New York Times v. United States (The Pentagon Papers Case),[10] that the government could not restrain the publication of secret government information unlawfully obtained by the press.  The Court relied very heavily on precedent that the government could not issue a prior restraint against publication except possibly in the most extraordinary circumstances.  The Supreme Court left open the question whether the government employee who stole the information or the newspaper or its reporters could be criminally prosecuted for their misconduct.  Many of the justices individually supported the criminal option as a means of deterring the theft and publication of national security information.

2.  A History of the Government’s Interest in National Secrets

The tension between national security and freedom of information has been with us from the beginning.  President Washington denied Congress access to information regarding the negotiations leading up to the Jay Treaty with England.  President Jefferson raised executive privilege when he was summoned to produce information during the Aaron Burr treason trial.  During World War I, Congress passed the Espionage Act that made it a crime to divulge classified information to the enemy.[11]

The Declaration of Independence proclaims that governments are instituted to insure equal rights and to protect life, liberty, and the pursuit of happiness.  National security was not stated as an end of government in the Declaration of Independence.  At most, national security was a means to help the government protect life, liberty, and the pursuit of happiness. The American Constitution, drafted some ten years later, is more pragmatic; it substitutes property for the pursuit of happiness and specifically states that the Constitution was established, for among other ends, to insure domestic Tranquility and to provide for the common defense.  The First Amendment to the Constitution protects freedom of speech and of the press, but it is silent about any limitations or whether this freedom includes that person have access to information.

Generally, the common law protects the public’s right to access government records.[12]  However, the common law right extends only to public information and is of little help to those who are seeking access to classified information.  In 1966, Congress passed the Freedom of Information Act (FOIA) to facilitate the public’s access to governmental information.[13]  Congress intended that the Act be broadly construed to effectuate its purpose, but the courts have not been so generous.[14]  The Act contains nine exemptions.[15]  Not surprisingly, the first exemption is documents classified by executive order in the interest of national defense or foreign policy.  When this exception is raised, the courts have been extremely deferential.[16]

Further, the CIA Information Act of 1984[17] exempts operational files of the Central Intelligence Agency from FOIA, but the Act does require the government to produce files on United States citizens and permanent residents who have requested information on themselves or when the files are needed for investigations by Congress or other government agencies into improprieties or violations of law, executive orders, or presidential directives in the conduct of intelligence.  Nonetheless, it has been held that requests for information on CIA rendition of detainees suspected of terrorist links need not be produced in response to a private lawsuit.[18]

While Congress has enacted a Whistleblowers Protection Act[19] and an Intelligence Community Whistleblowers Protection Act[20] that on their face make it difficult for government to retaliate against whistleblowers, judges have been reluctant to apply these statutes broadly.  As shown by the prosecution of Sgt. Chelsea Manning and others by the Obama Administration, these statutes provide little protection for those accused of whistleblowing.  Furthermore, the law is not evenly applied.  It is widely recognized that every administration leaks selective classified information when it determines that it is expedient to do so.  Prominent leakers that have the support of powerful persons in the administration are pardoned as evidenced by the treatment of Gordon Libby during the George W. Bush administration.  Mr. Libby allegedly violated a federal statute that punished the disclosure of the names of CIA agents.[21]

In United States v. Curtiss-Wright,[22] the United States Supreme Court affirmed broad powers of the Executive branch, and stated:

“It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.  Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war.  He has his confidential sources of information.  He has his agents in the form of diplomatic, consular and other officials.  Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

Further, in United States v. Nixon,[23] the United States Supreme Court recognized that the President has a constitutionally centered privilege to withhold information.  However, it held that this executive privilege was not absolute and must yield to a valid request by a court when the information is needed by a defendant in a criminal trial.  But the Court specifically stated that the President had not asserted a national security defense against the subpoenas that ordered the President to produce tape recorded conversations he had with his subordinates relevant to the defense.  Once the President asserts a claim of national security, the courts will generally not inquire further.  This was established in United States v. Reynolds,[24] where in a wrongful death suit against a defense contractor, the government refused to produce documents relating to the design of the plane on the ground that the documents would compromise national security.  The judge ordered that the documents be produced for in camera inspection; however, the Supreme Court held that once the government asserts the privilege, courts may not inquire further.  Fear that evidence will compromise national security continues to result in the dismissal of cases,[25] and on occasion the government has dismissed prosecutions because it does not want to disclose classified evidence.[26]

Thus, the courts have proclaimed that judges are not in a position to judge the merits of a national security debate and therefore must defer to Congress or the executive.[27]  While this deference may be questioned, one needs only read the debate among the judges in United States v. Dennis[28]  to sense the complexity of the argument.  Are questions of national security questions of law to be decided by the judge or questions of fact to go to a jury?  On what record is the determination made?  Can the government produce evidence in such a case without itself compromising national security?  And can a defendant accused of breaching national security ever secure an impartial fact finder?  These are only a few of the questions that arise when a national security case is litigated.  Reading court decisions does not inspire confidence, but at least judges are sworn to impartiality and are required to follow established procedures in reaching a decision.  Their decisions and the justification for their decisions are stated publicly for everyone to peruse, at least so long as trials remain open.

The federal government relies very heavily on contract law to prevent leaks of information from federal employees in sensitive positions.  Employees in the CIA and other security agencies sign agreements and take an oath not to divulge information and agree to pre-clear any writings or similar communications with agency personnel.  These agreements impose clear prior restraints on the speech of public employees, but they have generally been upheld by the courts.  In United States v. Marchetti,[29] a federal court of appeals upheld prepublication review and bans on a former CIA employee’s disclosure of classified information.  The United States Supreme Court went further in Snepp v. United States.[30]  The Court imposed a constructive trust on the earnings of a former CIA officer who had published a book without preclearance.  There was no allegation that the book contained any classified information or otherwise jeopardized national security.  Rather his contract said that he would not publish any  information without prepublication clearance.

More recently in Weaver v. U.S. Information Agency,[31]  a federal court of appeals upheld regulations of the State Department, the United States Information Agency, and the Agency for International Development that required employees to submit all speaking, writing, and teaching material on matters of “official concern” to their employers for review prior to publication.   A matter of “official concern” was defined as any matter that “reasonably may be expected to affect the foreign relations of the United States” and was not limited to classified information.  The court found that the requirement did not pose an unreasonable delay or impediment to publication and was necessary to protect the “efficiency of the public service.”  The court stated:

“Finally, there is nothing unreasonable in the application of 628.2 to all agency employees – even ones without direct access to classified information or sensitive foreign policy developments – because of the risk of unintended leakage of classified or other sensitive information.  Indeed the review process may be particularly important in precisely such cases, as unintended recipients of information are especially likely to have no idea that their material may harbor damaging disclosures.  We do not say that the government’s interests absolutely necessitate the precise contours of the review process in the case of each and every employee . . . , but merely that the review scheme restricts no more speech than is ‘reasonably necessary’ to achieve the government’s interests . . . ”  In her dissenting opinion, Judge Wald noted that the government had offered “no more than a few vague statements about speculative damage to the foreign relations of the United States to justify a formidable restriction on its employee’s speech.”[32]

3. The Challenge Posed by Technology

The stakes are higher today than ever, because the internet has posed special challenges.  Matters can be posted on the internet by almost anyone and almost anyone can access the internet, including children.  The internet was initially proclaimed as a free highway for the movement of information; it was proclaimed to be democracy friendly.  Yet in its evolution, it has revolutionized how we gather information and even how we think about information.

Nonetheless, the Court has resisted proposals to change traditional First Amendment analysis to allow greater government regulation of the internet.[33]  The government developed and encouraged the internet; yet, it soon saw that the internet was a threat to government.  The internet facilitated the easy release of information to the entire world and thus could play havoc with our foreign relations and national security concerns.  Consequently, we have the standoff today between those who favor free movement on the highway of information and those who favor restraint and protection for classified information.

The courts have also recognized that new communication methods pose difficult problems and may require different approaches when applying free speech and press analysis. The courts have tolerated almost no restraints on the traditional press – newspapers, journals, magazines and other forms of printed materials.[34] However, citing the shortage of airwaves, the courts have allowed greater restrictions on radio and television.[35]  Because cable television is not restricted by the airwaves, the court has allowed more freedom to cable communicators.[36] The Court has stated that it recognizes that computers can pose serious threats to privacy, but it has cautioned that the Court should proceed slowly in putting limits on new technology so as not to stunt its growth.[37]

This threat is particularly illustrated by the counter arguments to the Snowden disclosures.  The government has argued that Snowden’s downloading of classified information is illegal.  The government is especially concerned because it recognizes that technology today allows for the rapid disclosure of unprecedented amounts of information that can be easily acquired by our enemies and used to our detriment.  On the other hand, Snowden’s primary disclosure was of a government spying on its own citizens and how this eavesdropping was made possible by new technology. [38]

Thus, both arguments hinge on technology.  Snowden’s disclosures have effectively shown that no one’s communications are safe from a government intent on acquiring even the most innocuous information about its citizens. The government is arguing, without concrete evidence, that if government employees can download and communicate vast files of classified information, our national security is in jeopardy.  The debate is an old one, but the context is unprecedented and neither side can claim that it comes to the table without sin.

III.  Where does the Balance Lie? 

The debate is thus set, and there are no easy solutions in sight.  Many argue for more internal controls in the executive.  These controls would be welcome.  But the executive has a direct conflict of interest.  It wants to protect national security, but no president or agency official wants to be politically embarrassed.  Having the executive check on itself does not inspire public confidence.

  1. More legislative oversight would also be welcome, but the legislature is dependent upon the executive for its information.  Also, politics plays an overwhelming role in the way legislatures operate or, at least, are perceived to operate.  Legislation on freedom of information is difficult to draft as demonstrated by existing laws.  These laws are inevitably either overbroad or under-inclusive.
  2. The courts can play a greater role in protecting information.  But most judges are reluctant to challenge the political branches of government when it comes to national security issues.  Fact-finding by the courts in national security cases is often limited.  Existing cases do not inspire much confidence that the courts can or will be major players in this debate.[39]  Nonetheless, advocates of civil liberties should continue to press the courts for more secure recognition of the right to information.
  3. Some critics argue that an independent board should be constituted to oversee classification decisions.  But again, the same problems will plague review by an outside panel.  Nonetheless, outside review has the advantage of forcing agencies to document their decisions, and this is always helpful.  The decisions of the FICA court illustrate that it is hard not to give deference to the government in its national security concerns, but no advocate of civil liberties would seriously argue that the FICA court should be abolished.
  4. Reliance on a contractual analysis to hold government employees responsible should be abandoned.  Public employees should not be required to contract away their First Amendment rights.  If public employees are to be held accountable, it should be because they have violated clear statutory or regulatory standards, not because they violated their contract of employment.  Public employees may take an oath, but their oath is to uphold the law.  It is hard to see how the government is injured by disclosures that government officials have violated the law.  Similarly, it is hard to find an injury if the employee has disclosed information that should not have been classified.
  5. Transparency should be the norm with narrow exceptions.  This is required by democratic principles and by the First Amendment.  There are no easy answers to how the balance should be struck between national security concerns and freedom of information.  But more breathing room should be given to democratic principles and the First Amendment, and the burden should be on the government when it classifies and withholds information from the public.  Legislative oversight, internal and external review, and a vigilant judiciary all play a role in policing this balance.

Reliance on leaks and whistleblowers will probably always be with us.  In many cases, leaks are the only way the public is going to find out about a breach of the law.  Whistleblowers thus play a powerful role.  They operate as a check on officials who think they can keep the public in the dark.  What to do with whistleblowers is always a concern. Some employees like Gordon Libby are protected by their superiors.  This raises the implication that their superiors were also involved in the leaks.  Other employees are prosecuted vigorously even if they have disclosed important information related to government wrongdoing.

Many whistleblowers are true heroes.  True whistleblowers act out of an idealism that often is not appreciated.  Theirs is an act of civil disobedience.  Persons who commit civil disobedience expect to be punished.  But often executive officials want to make an example of them to deter other leaks.  Therefore, prosecutors seek excessive penalties, and often courts oblige them as in the case of Sgt. Chelsea Manning.  Maybe a later president will pardon the offender, as President Clinton did with Samuel Loring Morison, the Navy intelligence analyst who passed classified photographs to Jane’s Defense Weekly and was sentenced to an extremely long term in prison for his violation of the Espionage Act, without any proof of any real resulting harm.  A sympathetic president also shielded Gordon Libby, although the public value of his disclosure was less apparent.

We will no doubt always have to rely on whistleblowers to uncover serious government abuses.  We should recognize their value, and reserve serious sanctions only to those who act out of corrupt motives or who purposefully endanger our national security. We must recognize that this is not a conceptually easy area, and we will be required to rely on a combination of measures to ensure that government operates lawfully and effectively.


[i] Michael Seng is the co-executive director of The John Marshall Law School Fair Housing Legal Support Center and Fair Housing Legal Clinic. He lectures nationally and publishes extensively on fair housing law. Professor Seng also is the coordinator of The John Marshall Law School’s Czech law program. He travels annually to the Czech Republic to teach and publishes articles, in English and Czech, in Czech law journals.

[1]Stewart, “Or of the Press,” 26 Hastings L.J. 631 (1975).

[2]The Defense Department’s rulings on allowing access of the press to the battlefield have been mixed.  Prior to the Reagan Administration, especially during World War II and the Viet Nam War, the press was given wide access in covering battles.  However, many in the Pentagon blamed the press for the public’s negative reaction to the Vietnam War, and more stringent rules have been adopted that establish pools of reporters and restrict their access to and publication of information from the battlefield.  MacArthur, Second Front: Censorship and Propaganda in the Gulf War (1992).  The Nation v. Dept. of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991) (challenge to restrictions in the Gulf War); Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004), cert denied, 543 U.S. 925 (2004) (challenge to restrictions in the Afghanistan War and upholding restrictions on their face and as applied).

[3] First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 797- 802 (1978) (challenge to state law that prohibited business corporations from making contributions to influence referenda on public issues).

[4]Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

[5] North Jersey Media v. Ashcroft, 308 F.3d 198, cert. denied, 538 U.S. 1056 (2003) (deportation proceedings); Pell v. Procunier, 417 U.S. 817 (1974) (prisons); Houchins v. KQED, 438 U.S. 1 (1978) (county jails).  Reporters have no constitutionally-protected privilege not to disclose their sources.  Branzburg v. Hayes, 408 U.S. 665 (1972).  Likewise, newsrooms enjoy no special protection against searches and seizures under the Fourth Amendment.  Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

[6]Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (invalidating a state license tax on newspapers).

[7]New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a newspaper cannot be punished for defamation published without actual malice).

[8] Va. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 753 (1972) (commercial speech).

[9]Houchins v. KQED, Inc., 438 U.S. 1 (1978) (upholding a restriction on the press from taking photographs in a county jail).

[10] New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). As the aftermath of the Pentagon Papers Case illustrated, it would have been very difficult for the government to undertake the prosecution of some of the most powerful newspapers in the United States.  However, the political outrage might not have been so great if the newspaper had been small, politically powerless, or unpopular entities.  And as we are now experiencing, the government is prosecuting at least some leakers.

[11]18 U.S. C. §§ 792-794. That law is still on the books and has been used to prosecute both government and non-government employees who divulge classified national security information even when there is no war.  U.S. v. Morison, 604 F. Supp. 655 (D. Md. 1985) (prosecution of government employee for disclosing national defense information to Jane’s Defence Weekly Magazine in Britain.  He was later pardoned by President Clinton); U.S. v. Rosen, 445 F.Supp.2d 602 (2006) (prosecution of non-government employees who were employed by an organization that did lobbying in the United States for “picking up” secret intelligence on terrorist activities and transmitting it to foreign officials.  The court rejected the argument that the statute as applied to them violated the First Amendment).

[12]Schwartz v. Dept. of Justice, 435 F.Supp. 1203, aff’d, 595 F2d 888 (D.C. Cir. 1979) (Congressional records); Nixon v. Warner Communications, 435 U.S. 589 (1978) (court records).

[13] 5 U.S.C. § 552.

[14] E.P.A. v. Ming, 410 U.S. 73 (1973).  However, in a recent decision of the United States Supreme Court, the Court stated that courts should not create exceptions that are not justified by the words of the statute.  Milner v. Dept. of Navy, 131 S.Ct. 1259 (2011).  The government had specifically not asserted the national security exception.

[15]5 U.S.C. § 552 (b).

[16]Center for National Security Studies v. Dept. of Justice, 331 F.3d 918 (D.C. 2003) (rejecting request of public interest groups for information about post-September 11 detainees).

[17]50 U.S.C. § 431-32.

[18] ACLU v. Dept. of Defense, 628 F.3d 612 (D.C. Cir. 2011).

[19] Whistleblowers Protection Act of 1989, as amended, 5 U.S.C. §2302(b)(8) and (9).

[20] Intelligence Community Whistleblowers Protection Act of 1998, 5 U.S.C. App. §8h.

[21] 50 U.S.C. §§421-426.

[22] 299 U.S. 304, 320 (1936).

[23] 418 U.S. 683 (1974).

[24] 345 U.S. 1 (1953).  Years later after the documents had been declassified, Reynolds daughter requested the documents and discovered that they contained no information that compromised  national security.  The government had resisted producing them simply to escape liability and to avoid embarrassment.

[25] El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (Court dismissed civil action against the director of the CIA and others.  The plaintiff claimed that he had been detained and interrogated in violation of the Constitution and international law.  The Court held that the action posed an unreasonable risk that state secrets would be disclosed.)  The precedents go back to the Nineteenth Century when a suit by a civil war spy for compensation was dismissed because it would involve the release of classified information.  Totten v. United States, 92 U.S. 105 (1876).

[26] See United States v. Rosen, 487 F. Supp. 703 (E.D.Va. 2007) (Court denied government’s motion to utilize a trial procedure whereby substantial quantities of classified information would be disclosed to the Court, the jury and counsel, but withheld from the public); United States v. Moussaoui, 365 F.3d 292, amended, 382 F.3d 453, cert. denied, 544 U.S. 931 (2005) (court denied government’s proposal to substitute a material witness who might support the defendant’s claims).

[27] Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2727-28 (2010).

[28] 341 U.S. 494 (1951) (prosecution of Communist Party members for conspiracy to overthrow the government of the United States).

[29] 466 F.2d 1309, cert. denied, 409 U.S. 1063 (1972).

[30] 444 U.S. 507 (1980).

[31] 87 F.2d 1429, 1443 (D.C. Cir. 1996).

[32] 87 F.3d at 1444.

[33] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (holding that Congress’s regulation of the transmission of indecent speech over the internet was overbroad); Ashcroft v. the Free Speech Coalition, 535 U.S. 234 (2002) (invalidating the Child Pornography Act of 1996 that prohibited sexually explicit images that did not use real children).

[34] Miami Herald v. Tornillo, 418 U.S. 241 (1974) (newspapers).

[35] Red Lion Broadcasting v. FCC, 395 U.S., 367 (1969) (upholding the Federal Communication Commission’s fairness doctrine in broadcasting); FCC v. Pacifica Foundation, 428 U.S. 726 (1978) (upholding restrictions on radio broadcasts that can be heard by minors).

[36] Turner Broadcasting v. FCC, 512 U.S. 622 (1994).

[37] Whalen v. Roe, 429 U.S. 589 (1977) (upholding a New York law that allowed the state to collect computer data on users of prescription drugs because it contained sufficient protections against unwarranted disclosure).

[38] Changes in technology were duly noted by Judge Richard Leon in the first case that arose to challenge the wholesale government intelligence-gathering disclosed by Snowden.  Judge Leon contrasted “the Government’s ability to collect, store, and analyze phone data” now in comparison to 1979, when the Supreme Court approved the government’s use of simple pen registers without obtaining a search warrant.  Judge Leon recognized the extent of modern surveillance schemes, the “almost-Orwellian technology” that exists today, and the different nature and quantity of information contained in people’s telephony metadata as compared to thirty years ago.  Kayman v. Obama, 2013 WL 6571796 (D.D.C.  Dec. 16, 2013).

[39] It is refreshing to read Judge Leon’s opinion in Klayman v. Obama, 2013 WL 6571596 (D.D.C. December 16, 2013).  Judge Leon looks with skepticism on the government’s defense of its wholesale surveillance of the phone record metadata of all U.S. citizens disclosed by whistleblower Edward Snowden:

The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.”  Govt.’s Opp’n at 51 – an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” . . . . A closer examination of the record, however, reveals that the Government’s interest is a bit more nuanced – it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. . . .

Yet, turning to the efficacy prong the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually topped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.



Information Overload: How the Wisconsin Supreme Court Expanded the Doctrine of Informed Consent

By Michael Rohde on Sunday, December 1st, 2013

Written by: Michael Rohde*

To be published in Volume 46, No. 4

I.  Introduction

A.    The Jandre Case

On the night of June 13, 2003, Thomas Jandre was drinking coffee at work when he suddenly began experiencing strange and uncomfortable symptoms.[1] His coffee sprayed out of his nose, his speech was slurred, he felt dizzy, his face drooped, and he had trouble maintaining balance.[2] His co-workers rushed him to the hospital.[3]

At the emergency room, Dr. Therese Bullis believed Jandre was suffering from either Bell’s palsy or a transient ischemic attack (known as TIA or “mini-stroke”).[4] Bullis conducted various diagnostic tests including a CT scan and listening for bruits, a technique to detect an ischemic stroke event.[5] As a result of these tests, Bullis believed a stroke was a remote possibility,[6] so she chose not to order additional testing.[7] Because the preliminary test results led Bullis to rule out a stroke, she diagnosed Jandre with Bell’s palsy.[8] After informing Jandre of her diagnosis, Bullis sent him home with instructions to see a neurologist.[9] Eleven days later, Jandre suffered a significant stroke, resulting in impairments to both his cognitive and physical abilities.[10]

The Jandres sued Dr. Bullis under two theories: (1) she negligently diagnosed Bell’s palsy instead of a transient ischemic attack; and (2) she breached her duty to inform when she failed to tell Jandre about an additional diagnostic test (a carotid ultrasound) to definitively rule out the possibility of a stroke.[11] At trial, the jury concluded that Dr. Bullis was not negligent in her diagnosis of Bell’s palsy under the first theory,[12] but found that Bullis breached her duty to inform when she failed to tell Jandre about the possibility of using the additional test to detect a TIA.[13]  After the court of appeals affirmed the decision,[14] the Wisconsin Supreme Court also affirmed, holding that each patient’s particular circumstances dictate the duty to inform.[15]

This Comment discusses how the Wisconsin Supreme Court misapplied the informed consent doctrine, effectively expanding the scope of a physician’s duties to inform. Section II will discuss the history and evolution of informed consent, and Section III will address the potential legal and practical ramifications of the Jandre decision. Section IV will propose a statutory amendment as a solution to this issue.

II. Background of Informed Consent

The doctrine of informed consent aims to protect patients from unauthorized bodily invasions[16] and promotes patients as the ultimate decision makers regarding their medical care.[17] While the goals and purposes of the informed consent doctrine are simple,[18] its legal application and evolution are quite complex.[19]

In its simplest form, the doctrine requires physicians to disclose the risks, benefits, and alternatives to the proposed treatment.[20] “Treatment” encompasses a broad array of prospective courses of action, often including diagnostic procedures.[21] Wisconsin courts, like many other jurisdictions,[22] have long held physicians must inform patients about recommended diagnostic procedures[23] as well as the risks and benefits of alternative diagnostic procedures.[24]

A.    Historical Background of Informed Consent

Courts in this country have historically recognized two theories of liability under the informed consent doctrine: battery and negligence.[25] While the doctrine traces back to English common law,[26] informed consent in the United States dates back to 1904 and the landmark case of Mohr v. Williams.[27]

The battery theory outlined in Mohr is premised on unwanted or unauthorized touching.[28] The classic battery scenario occurs when a physician performs different or additional treatment beyond the patient’s original consent.[29] In the Mohr case, the patient consented to surgery on her right ear, but the physician also performed surgery on her left ear.[30] Although the left-ear surgery was successful, the plaintiff brought an action for unwanted touching under a theory of assault and battery.[31] The award for the patient emphasized the protection of bodily integrity despite the results of successful surgery.[32]

For several years, courts relied on Mohr’s battery theory for lack of consent to medical treatment.[33] In 1957, the California Appellate Court introduced the negligence theory in Salgo v. Leland Stanford Jr. University Board of Trustees.[34] The Salgo court recognized that physicians violate their duty if a patient is not properly informed of all sufficient information regarding the proposed treatment.[35] Holding that a physician has a duty to inform patients, subsequent jurisdictions began to determine liability based on negligence principles.[36] Under the negligence theory, a plaintiff must prove that the physician’s failure to disclose material information was the proximate cause of the patient’s injury.[37] In addition, a plaintiff must prove that consent to treatment would not have occurred had he been informed of all the relevant information.[38]

Jurisdictions differ in determining when a physician has disclosed enough information to satisfy this duty.[39]  Some jurisdictions utilize a physician-based standard,[40] while others utilize a patient-based standard.[41] The physician-based standard requires a physician to disclose what a reasonable physician would disclose in a similar situation,[42] while the patient-based standard requires a physician to disclose information that a reasonable patient would want to know.[43]

Recent cases and statutes have assisted in defining disclosure parameters[44] and exceptions,[45] but the debate still exists today.[46] Generally, decisions involving a physician’s failure to inform the patient about the availability and existence of diagnostic tests that are unrelated to the diagnosis have been consistently held as outside of the scope of informed consent.[47]

B.    Informed Consent in Wisconsin

In 1975, the Wisconsin Supreme Court decided the influential case of Scaria v. St. Paul Fire & Marine Ins. Co.[48] The Scaria opinion became the state’s benchmark decision for informed consent, establishing the legal standard and also listing exceptions that limit a physician’s duty.[49]

The court held the reasonable patient standard as the more favorable standard, emphasizing the notion that unique circumstances are inherent in every case.[50] Scaria held that a physician’s duty is to make such disclosures that would allow a reasonable patient faced with similar circumstances to intelligently exercise his right to consent.[51] The exceptions limiting a physician’s duty listed in the Scaria opinion[52] became the basis for Wisconsin’s informed consent statute,[53] Wis. Stat. §  448.30,[54] enacted in 1982.[55]

In 1995, Martin v. Richards[56] addressed the issue of whether information regarding diagnostic procedures must be disclosed.[57] In Martin, the physician originally believed the patient suffered a concussion, but it was later discovered the head injury was intracranial bleeding, and a much more serious diagnosis.[58] The physician failed to tell the patient about the availability of a CT scan that would have detected the intracranial bleeding.[59]

The court in Martin held that a reasonable patient faced with concussion symptoms would want to know if further testing was available to detect more serious neurological injuries.[60] The physician’s duty to inform the patient about the additional diagnostic test existed because a patient’s condition, not the diagnosis, dictates the duty to inform.[61] The court found the plain language of both Scaria and Wis. Stat. §  448.30 required physicians to disclose the existence of any alternative methods of diagnosis.[62]

C.    The Jandre Decision

Seventeen years after Martin, the Jandre court decided that a physician can be liable for failing to inform a patient about a diagnostic procedure unrelated to the patient’s diagnosed condition and relating only to a condition already ruled out by the physician.[63] Stated differently, the court held that procedures aimed at diagnosing ailments already ruled out by the physician are within the scope of a physician’s duty to inform.[64]

Dr. Bullis diagnosed Mr. Jandre with Bell’s palsy, yet the Court held she still had a duty to inform Mr. Jandre about a test that would have definitively ruled out a stroke, which Dr. Bullis had already excluded.[65]  Further, fact that the jury found Bullis not negligent with respect to her diagnosis of Bell’s palsy.[66]

Staying consistent with Scaria’s reasonable patient standard, the court justified its decision by finding that a reasonable patient faced with Mr. Jandre’s circumstances would have wanted to know about the ultrasound, which looking back, would have properly diagnosed the potential for stroke.[67] The court first decided that Scaria and the informed consent statute imposes a duty on physicians to inform patients about the existence of alternative diagnostic procedures.[68] The court then followed Martin in finding that despite being unrelated to the final diagnosis of Bell’s palsy, a physician’s duty depends on each patient’s unique situation.[69] Physicians are under a duty to inform patients of alternative procedures “even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis.”[70]

When faced with similar cases, other jurisdictions have consistently found a physician’s disclosure duties do not extend to conditions outside the diagnosis.[71] For example, in Hall v. Frankel,[72] the Colorado Appellate Court affirmed the dismissal of an informed consent claim and concluded that a physician did not have a duty to disclose the availability of an ultrasound[73] that he did not believe was medically indicated.[74]  In that case, the ultrasound would have discovered a blood clot,[75] but according to Hall, such errors are covered by claims of negligence.[76]

Writing in dissent of the Jandre decision, Justice Patience Roggensack argued that the decision expanded the scope of a physician’s duty to explain procedures not recommended by the physician[77] and that are only relevant to the accuracy of the final diagnosis.[78] Justice Roggensack, along with Justice Fine,[79] argued that the Jandre decision imposed strict liability on physicians for misdiagnoses.[80]

III. Analyzing the Effects of Jandre

People visit physicians because physicians are health care experts.[81] Patients seek advice and direction because they are unequipped with necessary medical knowledge.[82] Until rather recently, patients were privy to very little information regarding their physician’s proposed course of treatment.[83] Physicians were trained to deliberately withhold negative medical information from their patients,[84] and it was an acceptable practice for a physician to desert a patient who questioned a doctor’s authority.[85]

Balancing a physician’s knowledge with a patient’s self-autonomy has been the backbone of the legal doctrine of informed consent.[86]

The doctrine’s purpose is to protect patients from unwanted procedures while also allowing them to make informed choices regarding their care.[87] Yet,the Jandre decision expands a physician’s duties under current informed consent law and threatens the underlying autonomous purpose of the doctrine.[88]  By requiring physicians to disclose all diagnostic approaches to patients before a condition has been discovered, the decision diverts the emphasis set forth by both early and modern informed consent jurisprudence and enters into an all-encompassing “duty to inform” realm of medical negligence.[89]

In addition, Jandre’s holding will have adverse effects on the physician-patient relationship[90] by inadvertently placing patients on the same diagnostic authority level as physicians.[91] As a result of the changed law and threat to the autonomous nature of informed consent, costs of medical care may increase.[92]  This Section will show: (a) how the Jandre decision expands a physician’s duty to disclose; and (b) what adverse effects this decision will have on the practice of medicine.

A.    Jandre Changes the Law: Expanding the Duty to Inform

Prior to Jandre, informed consent required a physician to disclose “information reasonably necessary” that will assist a patient in making a decision to consent in Wisconsin.[93] This broad patient-friendly standard only requires physicians to disclose alternatives to diagnostic procedures[94] if the information is relevant to a patient’s decision-making on whether to consent to the procedure.[95] However, if Jandre is followed, physicians will be required to disclose all possible thought processes and potential diagnostic procedures with patients before any diagnosis is made.[96] Such a requirement reaches beyond informed consent and enters into a general duty to inform the patient about everything and anything that could be the source of his symptoms.[97]  Instead, a physician must first determine the source causing the symptoms before she can determine the severity of the injury. It is the difference between asking, “What is it?” as opposed to asking, “How bad is it?”[98]

Jandre’s plurality argues the decision was based on precedent,[99] but Mr. Jandre’s situation was distinguishable from prior Wisconsin cases.[100] In both Martin and Bubb v. Brusky,[101] the charged physicians knew the source of their patient’s injuries but were unsure of the respective severity of those injuries.[102] There is a difference between diagnosing the source of symptoms and diagnosing the severity of a known ailment or injury. By comparison, in Jandre, Dr. Bullis did not know the source or severity of Jandre’s ambiguous symptoms[103] when the alleged failure to inform occurred.[104]

In Martin, the plaintiff suffered a head injury from a bicycle accident, and the physician diagnosed a concussion.[105]  The physician failed to disclose the availability of a CT scan that would have discovered intracranial bleeding, a more severe but similar injury.[106] In Bubb, the plaintiff’s symptoms were diagnosed as a mini-stroke,[107] but the physician failed to inform the plaintiff about a Doppler ultrasound that would have determined the relative severity of the diagnosed TIA.[108]

Bubb, at first glance, is analogous to Jandre[109] because both plaintiffs suffered a stroke event and their symptoms were similar.[110] The distinguishing aspect becomes evident when considering that in Jandre Dr. Bullis ruled out TIA, an unrelated injury to Bell’s palsy, while still attempting to determine the source of Jandre’s symptoms.[111] In distinction, the physician in Bubb had previously determined the plaintiff’s symptoms were caused by a mini-stroke, and the should-have-been-disclosed ultrasound would have been relevant for measuring the possible imminence of a full-blown stroke.[112]

Because Dr. Bullis did not know the source of Jandre’s symptoms, she was in the process of ruling out non-threatening and irrelevant diseases when she tested for TIA by listening for bruits.[113] At the time Jandre alleges Bullis should have disclosed the alternative test, the circumstances were such that Bullis either did not know the source of the symptoms or she had already diagnosed Bell’s palsy.[114] If the source was undetermined, neither Jandre nor Bullis could possibly be in a position to decide whether the undisclosed diagnostic test (carotid ultrasound) was relevant or useful to Jandre’s care.[115] Because Bullis diagnosed Bell’s palsy[116] and did not believe Jandre had suffered a TIA, it would be impossible for Jandre to make an informed decision about treatments relating to a TIA.

In her dissent, Justice Roggensack stated the lead opinion misconstrued negligent diagnosis with informed consent because an informed consent claim would not have been brought if Jandre was actually suffering from Bell’s palsy.[117] This argument emphasizes how the decision’s reasoning is not supported by the purposes of the informed consent doctrine.[118]

Now, if Jandre is followed, physicians will face liability for not disclosing all possible tests that could potentially diagnose the source of every symptom facing a patient when he walked in the door.[119] Similar potential physician liability has been consistently held to fall within general negligence principles and not within the scope of informed consent.[120]

The Jandre Court should have followed the Seventh Circuit, which was confronted with this issue in McGeshick v. Choucair[121] in 1993. In McGeshick, the plaintiff patient claimed the defendant physician failed to inform him about the existence of a diagnostic measure[122] that would have discovered an arterial venous malformation (AVM) as the source of his debilitating back pain.[123] Judge Ripple, applying Wisconsin law, affirmed the trial court’s refusal to give an informed consent jury instruction,[124] stating that informed consent limits a physician’s duty to inform to situations in where the physician has proposed a recommended course of treatment.[125]

B.    Jandre Will Have Adverse Effects on the Practice of Medicine

Before a source of ambiguous symptoms is identified, an argument can be made that physicians are in the same relative position as patients. In Jandre, Dr. Bullis was unclear as to what caused Mr. Jandre’s symptoms until she diagnosed Bell’s palsy as the underlying source.[126] Until her diagnosis, Bullis had little to offer Jandre in terms of risks and benefits of any treatment and especially alternative treatments.[127] Because Mr. Jandre could not receive any relevant information from Bullis, she had no influence over his decision-making.[128]

It is true that the doctrine of informed consent succeeded in transforming a once paternal relationship[129] into a more balanced, patient-friendly approach to medical care.[130] Physicians must be cognizant of a patient’s right to make decisions about his body,[131] and patients are encouraged to participate in decision-making.[132]

But, if Jandre is followed, the once-beneficial nature of informed consent will be replaced with information overload, which may result in harmful consequences.[133] Physicians, now required to disclose each potential diagnostic test that might be relevant, must also inform patients about illnesses that the physician does not believe to be present. For example, Bullis did not believe Jandre suffered a stroke event, and she also ruled out tumors, syndromes like Guillain-Barre, multiple sclerosis, and multiple other ailments.[134] Following the court’s “circumstances-dictate-disclosure” reasoning,[135] a physician in Bullis’ shoes would be required to disclose any possible tests relating to the diagnoses of illnesses contained in Bullis’ initial list of potential illnesses.[136] If a patient faced with similar ambiguous symptoms is informed about the diagnostic tests for any and all previously ruled out illnesses, the result will be unnecessary patient confusion, fear,[137] and a potential waste of medical resources.

Even though Jandre’s lead opinion argues that each individual patient’s circumstances dictate disclosure,[138] communications between a physician and patient should not involve physicians informing patients about tests related to illnesses that are not believed to be medically indicated.[139] This outcome has never been an intention of the informed consent doctrine.[140]

In addition to creating unnecessary patient confusion, Jandre’s holding could hypothetically result in patients inadvertently taking the role of physicians. Training patients to be physicians is not the purpose of informed consent.[141] The doctrine has always invited patients to participate in decisions,[142] but the Jandre outcome essentially allows patients to operate a car without a driver’s license.

Interpreting the lead opinion’s reasoning, Dr. Bullis should have told Mr. Jandre her opinion that he had Bell’s palsy and Bullis should have invited him to speculate as to whether he believed he was suffering from a TIA, stroke, or any other illness Bullis had previously ruled out.[143] Bullis should have said something to the effect of, “I do not believe you have suffered from a TIA, but in the event you believe that you suffered a TIA, here is a potential test that would diagnose the existence of a TIA.”[144]

Although speculative, a presumption can be made that Bullis’ diagnosis of Bell’s palsy and treatment recommendations would not have changed if she had told Jandre about the ultrasound.[145] The onus would have been on Jandre to demand the administration of a test that his physician was not recommending and did not believe was medically indicated.[146] Such a situation is in direct contrast with the principles of informed consent. Informed consent developed as a basis for liability because physicians were taking too many liberties on their patients without first properly disclosing relevant information.[147]

The Jandre result potentially moves the communication spectrum governing the physician-patient relationship far beyond the level the original cases proposed,[148] requiring that physicians include patients in deciding whether the diagnosis is correct before proceeding with treatment.[149] As expressed in Justice Roggensack’s dissent, physicians could potentially be strictly liable for bad results stemming from a misdiagnosis.[150] Even if a physician follows the standard of care in making a diagnosis, just as Bullis did,[151] he or she could still be charged with failing to disclose a potentially relevant test that would have properly diagnosed the patient’s illness or injury.[152]

Based on the legal implications of Jandre, physicians will be required to disclose a multitude of non-recommended alternative procedures.[153] Included in this list will be procedures that the physician believes are not medically indicated or relevant. Such a requirement will needlessly deplete a physician’s availability by extending the average time spent consulting and diagnosing the patient’s illness.[154] Upon hearing about the multitude of potentially relevant tests, a patient will likely become confused and request to undergo costly and irrelevant procedures to definitively rule out illnesses despite the physician having already ruled them out.[155] These tests will exponentially drive up overall healthcare costs.[156]

IV.  Proposal

This Section proposes a workable amendment to the current informed consent statute that will maintain the ideals and purposes of the doctrine[157] while addressing the practical problems[158] likely to result from the Jandre decision.

As it stands, Jandre will present problems for physicians in knowing when their disclosure duties have been satisfied.[159] Because Wisconsin’s patient-based standard for determining liability[160] declares that unique circumstances determine the extent of disclosure duties,[161] physicians will likely disclose unnecessary tests and procedures notwithstanding their diagnosis or recommendations.[162]

A proper solution to the potential legal and practical implications of the Jandre decision must remain consistent with the goals and purposes of informed consent, while also keeping in mind the everyday interactions between patients and physicians.[163] The expansion of informed consent to a general ‘duty to inform’[164] outlined in Jandre should not be followed.

Instead, Wisconsin should legislatively amend its statute, Wis. Stat. § 448.30, in order to follow the rule outlined in many other jurisdictions,[165] including the Seventh Circuit who applied Wisconsin law in McGeshick.[166] Requiring physicians to disclose tests that are relevant only to definitively ruling out the physician’s diagnosis is unworkable and contrary to the doctrine’s principles and detrimental to health care.[167]

This Comment proposes the following line should be added to the list of exceptions stated in Wisconsin’s current informed consent statute, Wis. Stat. §  448.30: “Information regarding treatments relating to diagnoses that have been previously ruled out by the physician.”[168] The amended statute would follow the proposition that if a physician has already ruled out a potential source of an illness at the time of the alleged non-disclosure, then liability for the failure to diagnose should fall under the umbrella of negligent misdiagnosis,[169] not lack of obtaining informed consent.

Articulated in simpler terms, if a physician diagnoses an ailment or disease as the source of the patient’s symptoms, he should not have a duty to disclose to the patient alternative ways of diagnosing a different source of symptoms that he has already ruled out.[170] If the source of the injuries is not identified properly and the faulty identification causes an injury, an injured patient can bring a claim for negligent misdiagnosis.[171]

Applying this proposition to Jandre, the facts showed that Dr. Bullis, unaware of the source of Jandre’s symptoms, diagnosed Bell’s palsy.[172] Based on the Bell’s palsy diagnosis, Dr. Bullis would not have a duty to disclose alternative tests for diagnosing a stroke or any other ailment already ruled out. The failure to pursue the carotid ultrasound that would have diagnosed a stroke is adequately covered by a claim of negligent misdiagnosis.

A.    Purposes of Informed Consent

The proposed amended statute still conforms to the long-standing principles of the doctrine of informed consent.[173] The rule comports with Scaria’s holding regarding diagnostic procedures in that physicians are required to disclose the risks and benefits of such procedures before obtaining a patient’s consent.[174]

Another recognized purpose of informed consent liability that will remain unaffected is a patient’s involvement in the medical treatment decision-making process.[175] Although physicians will not be required to disclose alternative ways of diagnosing a previously ruled out source of illness, physicians will still be required to disclose the risks, benefits, and alternatives to proposed diagnostic tests.[176]

Applying this proposal to the Bubb and Martin cases, both physicians would likely still have been required to disclose the existence of alternative tests aimed at the severity of their patient’s symptoms given the source of the injury was known at the time of the alleged nondisclosure.[177]

B.    The Reasonable Patient Standard

The new statute still conforms to Wisconsin’s reasonable patient standard because physicians will still be required to provide patients with all of the relevant information needed to make a decision in regards to the proposed treatment.[178] In Jandre, Dr. Bullis identified the source of Mr. Jandre’s symptoms as Bell’s palsy,[179] therefore Dr. Bullis would be required to disclose all treatment options and alternatives relating to Bell’s palsy.[180]

In Bubb, the physician’s diagnosis was a stroke.[181] Therefore, in order to conform to the statute, the physician would be required to disclose to the patient any relevant information, including alternative treatments, to make an informed decision regarding the proposed stroke treatment.[182] Likewise in Martin, the source of the symptoms was a head injury.[183] Therefore, the physician would still be liable under the new statute for not disclosing the existence of a CT scan,[184] an alternative procedure aimed at determining the severity of the patient’s injuries.

C.    Physician-Patient Relationship

Unlike the holding in Jandre, the proposed statute will help avoid the problem where patients are inundated with useless information and the practice of defensive medicine.[185] If Jandre is followed, patients will potentially learn about numerous diagnostic tests that are only relevant to ailments that are not medically indicated or statistically unlikely. The result will be longer doctor office visits, unnecessary tests, busier physicians, and fear.[186] Instead of the duty to inform about the implications of a course of action, physicians will potentially be strapped with an all-encompassing duty to inform about everything involved with the patient’s condition and physician’s thought process.

In all practicality, a physician has little to offer a patient by disclosing an alternative procedure when the source of the ailment, illness, or injury is still unknown. The identification of the source of the symptoms will trigger the duty to disclose alternative diagnostic methods.  When the source of the symptoms is identified, the duty to disclose information will trigger as well.

V.    Conclusion

Effective and thorough communication is the backbone of a successful patient-physician relationship.[187] Patients want honesty, not a string of disclaimers. In the midst of expanding informed consent disclosure duties, a physician’s honest assessment could be lost in the excessive jumble of unnecessary disclosures.

The goals of informed consent have been working to expand the rights of patients in American law for over one hundred years.[188] Informed consent was introduced to protect patients’ rights to make decisions, but the Jandre case and overall fear of liability has pushed the envelope toward requiring physicians to disclose the kitchen sink. Instead, further solidifying the scope of a physician’s duty to inform, as the proposed amendment aims to accomplish, will further promote patient autonomy while improving health care.
































* J.D. Candidate, The John Marshall Law School, 2014; B.A. University of Illinois Fighting Illini. Sincere thank you to parents Dorothy and Mark, sisters Beth and Emily, Patrick Salvi, Professor Marc Ginsburg, and most importantly Kiki Massaro for your endless support, encouragement and guidance.

      [1].   Jandre v. Wis. Injured Patients & Families Comp. Fund, 813 N.W.2d 627, 640 (Wis. 2012).

      [2].   Id.

      [3].   Id.

      [4].   Id. Dr. Bullis testified her differential diagnosis included Bell’s Palsy, ischemic and hemmoraghic stroke, tumors, Guillain-Barre, multiple sclerosis, and multiple other ailments. Id. She noted that Jandre’s differential diagnosis included “some of the more obscure disease processes.” Id. After conducting a CT scan, Dr. Bullis ruled out hemorraghic stroke and brain tumors. Id.

      [5].   Id. at 640-41. Dr. Bullis admitted at trial that listening for bruits is a “very, very poor screening test for determining what shape the arteries are in.” Id. at 641. “Her testimony established that a bruit will not be heard if an artery is severely blocked.” Id.

      [6].   Id. Dr. Bullis testified that she considered a stroke very unlikely. Id.

      [7].   Id. Dr. Bullis could have ordered a carotid ultrasound, which is a non-invasive diagnostic technique that is more reliable for diagnosing a stroke than listening for bruits. Id.

      [8].   Id. Bell’s palsy is a viral inflammation of the seventh cranial nerve, and a classic case only involves facial paralysis. Id. In addition, Bell’s palsy is a diagnosis of exclusion, meaning the diagnosis is affirmed after ruling out all other potential conditions. Id.

      [9].   Id. Jandre saw a family medicine physician three days later who noted that Jandre “exhibited signs of resolving Bell’s palsy.” Id.

    [10].   Id. 

    [11].   Id. at 634. Dr. Bullis did not order the ultrasound, nor did she inform Jandre about the procedure. Id. at 641.

    [12].   Id. at 634.

    [13].   Id.; See id. at 643 (stating how the jury awarded the Jandres approximately $2,000,000).

    [14].   Jandre v. Physicians Ins. Co., 792 N.W.2d 558, 560 (Wis. Ct. App. 2010).

    [15].   Jandre, 813 N.W.2d at 665-66.

    [16].   See Bryan J. Warren, Comment, Pennsylvania Medical Informed Consent Law: A Call to Protect Patient Autonomy Rights by Abandoning the Battery Approach, 38 Duq. L. Rev. 917, 928 (2000) (stating, “[t]he battery approach to informed consent seeks to protect the patient’s physical integrity and personal dignity from harmful and unwanted contact”).

    [17].   See Marc D. Ginsberg, Informed Consent: No Longer Just What the Doctor Ordered? The “Contributions” of Medical Associations and Courts to a More Patient-Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17, 19 (2010) (describing how the informed consent doctrine works to level an unequal “playing field” where patients are always in a position of vulnerability).

    [18].   See Pratt v. Davis, 79 N.E. 562, 564 (Ill. 1906) (stating that when a patient is in “full possession of all his mental faculties and in such physical health as to be able to consult about his condition . . . and when no emergency exists making it impracticable to confer with [the patient], it is manifest that [the patient’s] consent should be a prerequisite to a surgical operation”).

    [19].   See R. Jason Richards, How We Got Where We Are: A Look at Informed Consent in Colorado – Past, Present, and Future, 26 N. Ill. U. L. Rev. 69, 70-71 (2005) (explaining how evolution of informed consent has made the doctrine difficult to gauge because of the progression of medicine, physician training, and societal attitudes about health care).

    [20].   See Canterbury v. Spence, 464 F.2d 772, 779, 781 (D.C. Cir. 1972) (explaining how lawsuits claiming a failure to adequately “disclose the risks and alternatives of proposed treatment are not innovations in American law”).

    [21].   See Jandre, 813 N.W.2d at 672-73 (Prosser, J., concurring) (noting how the various cases have defined “treatment” as a variety of medical actions including the act of diagnosis). The opinion also notes that the informed consent statute in Wisconsin (Wis. Stat. Ann. §  448.30) (West 2008)) appears to distinguish treatment from diagnosis. Jandre, 813 N.W.2d at 672-73.

    [22].   See Kashkin v. Mt. Sinai Med. Ctr., 538 N.Y.S.2d 686, 688 (N.Y. Sup. Ct. 1989) (explaining how a gastroenterologist had the duty to inform plaintiff about an invasive diagnostic procedure that the doctor specifically ordered); see also Williams v. Menehan, 379 P.2d 292, 295 (Kan. 1963) (analyzing informed consent elements in the context of a physician recommending a cardiac catheterization, a procedure intended to diagnose cardiac issues in a person’s heart).

    [23].   See Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d 647, 651-52 (Wis. 1975) (indicating that plaintiff claimed he was not adequately informed of all the risks involved with an aortogram, a procedure used to determine the source of high blood pressure); see also Bubb v. Brusky, 768 N.W.2d 903, 925 (Wis. 2009) (concluding that a physician can be liable for failing to inform a patient about alternative modes of treatment options, including diagnosis, as well as the risks and benefits of any treatments).

    [24].   See Martin v. Richards, 531 N.W.2d 70, 78 (Wis. 1995) (finding that the distinction between diagnostic and medical treatments is not necessarily relevant to an analysis of informed consent); see also Hannemann v. Boyson, 698 N.W.2d 714, 729 (Wis. 2005) (holding that informed consent is required for chiropractic screening tests, a form of diagnostic testing).

    [25].   See Trogun v. Fruchtman, 207 N.W.2d 297, 311-12 (Wis. 1973) (explaining how the first informed consent theory is based on a physician performing unwanted treatment, while the second theory concerns a physician’s duty to inform a patient about risks involved with the treatment).

    [26].   See Richards, supra note 19, at 69 n. 1 (explaining how informed consent traces back to the case of Slater v. Baker, (1767) 95 Eng. Rep. 860 (K.B.), which stated a patient should be informed about what is to be done to him).

    [27].   Mohr v. Williams, 104 N.W. 12 (Minn. 1905). See Gary L. Boland, The Doctrine of Lack of Consent and Lack of Informed Consent in Medical Procedure in Louisiana, 45 La. L. Rev. 1, 3 (1984) (describing Mohr as one of the early reported cases where a physician was sued by a patient premised on the tort of battery).

    [28].   Mohr, 104 N.W. at 16; see Warren, supra note 16, at 928 (explaining how the battery theory “seeks to protect the patient’s physical integrity and personal dignity from harmful and unwanted contact”).

    [29].   See Trogun, 207 N.W.2d at 311 (explaining how the typical battery situation occurs when a patient consents to a certain type of operation or treatment, but the physician subsequently performs treatment on another part of the body).

    [30].   Mohr, 104 N.W. at 13.

    [31].   Id.

    [32].   See Richards, supra note 19, at 75 (describing how Mohr established three important principles in the context of medical-legal liability: (1) physicians must obtain patient consent prior to performing a medical procedure; (2) an emphasis on the importance of bodily integrity by providing a battery cause of action; and (3) any such cause of action for lack of consent arose in tort, not negligence).

    [33].   See Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914) (stating “[e]very 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”); see also Pratt, 79 N.E. at 565 (affirming a judgment for battery).

    [34].   Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170, 180-81 (Cal. Ct. App. 1957).

    [35].   See id. at 181 (explaining how a physician violates his duty and subjects himself to liability if he withholds necessary facts that would allow the patient to form the basis of an intelligent consent to the proposed treatment).

    [36].   See Natanson v. Kline, 350 P.2d 1093, 1107 (Kan. 1960) (applying negligence principles to determine whether patient was adequately informed about the risks of a procedure); see also Mitchell v. Robinson, 334 S.W.2d 11, 19 (Mo. 1960) (holding doctors owe competent patients a duty to inform of the possible hazards of shock therapy).

    [37].   See Canterbury, 464 F.2d at 790 (describing that a causal connection exists only when disclosure of significant risks of the proposed treatment would have resulted in the patient deciding against treatment).

    [38].   Id.

    [39].   See Richards, supra note 19, at 84-86 (explaining how different jurisdictions have evolved utilizing the reasonable patient standard and the reasonable physician standard).

    [40].   See Grice v. Atkinson, 826 S.W.2d 810, 813 (Ark. 1992) (requiring the plaintiff to prove that the physician failed to inform the patient as would have other similarly situated physicians); Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992) (explaining how expert medical testimony is needed to establish whether a physician has complied with informed consent standards of a reasonably prudent physician); Marchlewicz v. Stanton, 213 N.W.2d 317, 320 (Mich. Ct. App. 1973) (explaining how a physician’s failure to inform should be determined according to the general practice customarily followed by the medical profession); Llera v. Wisner, 557 P.2d 805, 810 (Mont. 1976) (explaining Montana’s accepted view is that the sufficiency of a disclosure should be measured against acceptable medical practice through expert testimony); Smith v. Cotter, 810 P.2d 1204, 1207 (Nev. 1991) (explaining how Nevada uses a “professional” standard under which a physician’s duty to disclose is measured against a reasonable practitioner in the same field).

    [41].   See Carr v. Strode, 904 P.2d 489, 501 (Haw. 1995) (stating that a plaintiff is not required to prove a physician’s standard of disclosure with medical expert evidence in an informed consent case); Harnish v. Children’s Hosp. Med. Ctr., 439 N.E.2d 240, 243 (Mass. 1982) (explaining that materiality in the informed consent context can be made by a layperson); Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn. 1980) (explaining that physician’s duty to disclose is established by what a reasonable person in the patient’s position would find significant in deciding to consent to treatment); Peterson v. Shields, 652 S.W.2d 929, 931 (Tex. 1983) (shifting the locality rule to a reasonable person rule focusing on whether a reasonable person would consent rather than what physicians deem material for disclosure).

    [42].   See Govin v. Hunter, 374 P.2d 421, 424 (Wyo. 1962) (explaining how the duty to warn a patient of negative results of a proposed treatment depends upon the particular case and upon the general practice followed by the medical profession).

    [43].   See Dessi v. United States, 489 F. Supp. 722, 729 (E.D. Va. 1980) (discussing the subjective theory versus the objective or reasonable person theory of the patient-based standard); Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993) (holding the reasonable patient standard as the preferable manner of disclosure over the physician-based standard); Cross v. Trapp, 294 S.E.2d 446, 467 (W. Va. 1982) (finding the reasonable patient standard more persuasive and consistent with the fundamental principle that it is every person’s right to determine the treatment performed on his or her body); see also Scaria, 227 N.W.2d at 654 (explaining a physician must provide enough information for a reasonable patient faced with similar circumstances to make an intelligent decision to consent or refuse the proposed treatment).

    [44].   W. Page Keeton Et Al., Prosser & Keeton on the Law of Torts §  32, at 190 (5th ed. 1984) (describing what should be included in disclosures: “pertinent ailment or condition, the risks of the proposed treatment or procedures, and the risks of any alternative methods of treatment, including the risks of failing to undergo any treatment at all”).

    [45].   Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508, 511 (S.D. 1978); Trogun, 207 N.W.2d at 309-10; Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972); Yeates v. Harms, 393 P.2d 982, 991 (Kan. 1964); see Richards, supra note 19, at 76-77 (discussing the various exceptions to obtaining consent in certain situations such as emergencies where obtaining consent may be impracticable or impossible, risks either already known or generally known by everyone, or when full disclosure would be emotionally damaging to the patient’s care).

    [46].   See Johnson v. Kokemoor, 545 N.W.2d 495, 497 (Wis. 1996) (explaining the question of whether a physician has a duty to disclose his experience in performing a certain operation or a duty to compare his success rates for a certain type of surgery among experienced surgeons and to refer the plaintiff to a tertiary care center staffed by physicians more adequately experienced in performing a certain type of procedure).

    [47].   See Linquito v. Siegel, 850 A.2d 537, 543 (N.J. Super. Ct. App. Div. 2004) (holding no duty to inform patient of a diagnostic test for a condition the physician does not believe exists, and the appropriate claim is negligence). See also Farina v. Kraus, 754 A.2d 1215, 1222-23 (N.J. Super. Ct. App. Div. 1999) (explaining how an error in diagnosis supports a negligence theory, not informed consent); Binur v. Jacobo, 135 S.W.3d 646, 655-56 (Tex. 2004) (finding misdiagnosis and mistreatment support negligence, not informed consent); Backlund v. Univ. of Wash., 975 P.2d 950, 956 (Wash. 1999) (reiterating how misdiagnosis gives rise to negligence, not an informed consent claim).

    [48].   See Scaria, 227 N.W.2d at 655 (finding the objective, reasonable man approach is more fair and workable when compared to the subjective, reasonable man approach).

    [49].   Jandre, 813 N.W.2d at 637-38.

    [50].   See Scaria, 227 N.W.2d at 654 (explaining how the physician has a duty to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person with similar circumstances as the patient at the time of the disclosure to intelligently exercise his right to consent or refuse the proposed course of action made by a physician).

    [51].   Id. The decision has been reaffirmed several times. See, e.g., Bubb, 768 N.W.2d at 922 (discussing that a patient would benefit by knowing about the existence of a Doppler ultrasound that can more accurately diagnose a TIA); see also Martin, 531 N.W.2d at 79 (finding that knowledge of the availability of a CT scan would have allowed the patient’s family to adequately consent).

    [52].   See Scaria, 227 N.W.2d at 653 (listing situations when physicians should not be required to inform patient). Specifically, physicians should not need to inform patients when: (1) disclosure involves a “detailed technical medical explanation that in all probability the patient would not understand;” (2) “risks . . . are apparent or known to the patient;” (3) “extremely remote possibilities that, at least in some instances, might only serve to falsely or detrimentally alarm the particular patient;” (4) “cases of emergency;” and (5) “the patient is a child, mentally incompetent . . . emotionally distraught, or susceptible to unreasonable fears.” Id.

    [53].   See Jandre, 813 N.W.2d at 646 (explaining the statute was enacted to codify the law set forth in Scaria).

    [54].   Wis. Stat. Ann. §  448.30 (West 2012), which states,

Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician’s duty to inform the patient under this section does not require disclosure of:

(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.

(2) Detailed technical information that in all probability a patient would not understand.

(3) Risks apparent or known to the patient.

(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.

(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.

(6) Information in cases where the patient is incapable of consenting.


    [55].   Jandre, 813 N.W.2d at 646.

    [56].   Martin v. Richards, 531 N.W.2d 70 (Wis. 1995).

    [57].   See id. at 79 (holding that a physician who “attempt[s] to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances . . . to exercise the patient’s right to consent to, or refuse the procedure proposed, or to request an alternative treatment or method of diagnosis”).

    [58].   Id. at 80.

    [59].   Id.

    [60].   Id. at 81.

    [61].   Id. at 80.

    [62].   See id. at 78 (explaining distinction between diagnostic and medical treatments is not necessarily relevant to an analysis of informed consent).

    [63].   See Jandre, 813 N.W.2d at 648-49 (explaining distinction between whether diagnostic tests aimed at conditions “related” to the final diagnosis and conditions “unrelated” to the final diagnosis is not relevant).

    [64].   Id.

    [65].   Id. at 641.

    [66].   Id. at 634.

    [67].   See id. at 640 (explaining how Jandre could reasonably have wanted to know the additional test available as a diagnostic tool for ischemic stroke and that the carotid ultrasound could more accurately eliminate the possibility of ischemic stroke than the less-invasive physical examination performed by Dr. Bullis).

    [68].   See id. at 648-49 (“[i]nterpreting Wis. Stat. §  448.30 and Scaria to require disclosure about diagnostic techniques under certain facts and circumstances . . . because diagnosis is an essential component of treatment, and diagnostic tests are important to a patient’s decision making”).

    [69].   Id. at 652. “Regardless of what disclosures might be customary in the medical profession, physicians must put themselves into the shoes of the patient and consider what information a reasonable patient would want to know.” Id. at 650.

    [70].   Id. at 649.

    [71].   See Hall v. Frankel, 190 P.3d 852, 865 (Colo. Ct. App. 2008) (finding that “a physician does not have a duty to disclose the risk of an error in diagnosis or . . . the availability of diagnostic and treatment procedures he or she has concluded are not medically indicated”). These errors “are covered adequately by claims of negligence.” Id. See also Roukounakis v. Messer, 826 N.E.2d 777, 779 (Mass. App. Ct. 2005) (describing how failure to inform instructions were denied by the judge after physician failed to recognize lump on breast as cancerous but was not negligent in diagnosis). A “physician should not be additionally liable under . . . informed consent statute . . . for a condition unknown to the physician.” Id. at 781 (quoting Backlund v. University of Washington, 975 P.2d 950, 956, n. 2 (Wash. 1999). “For example, a physician who misdiagnosed a headache . . . and failed to detect a brain tumor may be guilty of negligence for the misdiagnosis, but it seems anomalous to hold the physician culpable . . . for failing to secure the patient’s informed consent for treatment for the undetected tumor.” Id.; See Pratt v. Univ. of Minn. Affiliated Hosp., 414 N.W.2d 399, 402 (Minn. 1987) (explaining how a physician does not have a duty to explain to the patient that the physician’s diagnosis may not be correct); Linquito, 850 A.2d at 543 (holding no duty to inform patient of a diagnostic test for a condition the physician does not believe exists; the appropriate claim is negligence); Farina, 754 A.2d at 1222-23 (concluding that an error in diagnosis supports a negligence theory, not informed consent); Binur, 135 S.W.3d at 655-56 (supporting the notion that misdiagnosis and mistreatment support negligence, not informed consent); Backlund, 975 P.2d at 956 (describing that a misdiagnosis gives rise to negligence, not informed consent claim).

    [72].   Hall, 190 P.3d at 852.

    [73].   See id. at 857 (explaining that “[b]ecause the physicians believed that the decedent suffered from atelectasis, the surgeon was not notified,” and “an ultrasound was not ordered because the treating physicians believed it was not indicated due to the administration of an anticoagulant”).

    [74].   See id. at 865 (addressing negligence in the context of informed consent, that “physician does not have a duty to disclose the risk of error . . . or to disclose the availability of diagnostic and treatment procedures . . . [that] are not medically indicated . . . [e]rrors of this sort are covered adequately by claims of negligence”).

    [75].   Id. at 857.

    [76].   Id. at 865.

    [77].   See Jandre, 813 N.W.2d at 682 (Roggensack, J., dissenting) (explaining that Wis. Stat. §  448.30 is based on informing patients of the risks and benefits of procedures that the physician recommends be done to the patient).

    [78].   See id. at 683 (Roggensack, J., dissenting) (describing the potential scope of the lead opinion’s reasoning as “breathtaking” because a claim for violating the informed consent duty would be limited only by an expert’s opinion on what might have been diagnosed).

    [79].   See Jandre, 792 N.W.2d at 570 (Fine, J., concurring) (suggesting that previous Wisconsin informed consent cases have gone “way beyond” the statute and Scaria, essentially making physicians strictly liable for bad results although not negligent in the care and treatment of their patients).

    [80].   See Jandre, 813 N.W.2d at 682-75 (Roggensack, J., dissenting) (explaining that the opinion purports to impose strict liability for a missed diagnosis because a physician would be liable for failing to tell a patient about all potential tests and diagnoses that could have been employed to evaluate the patient’s symptoms). Bullis would not have violated Wis. Stat. §  448.30 for failing to tell Mr. Jandre that a carotid ultrasound could have been done to assist in ruling out a TIA or stroke if her diagnosis of Bell’s palsy was correct. Id.

    [81].   See Ginsberg, supra note 17, at 19 (explaining that a “physician has all the medical . . . information about the necessary treatment or procedure and the patient knows it,” and “[t]here is no balance of power in this relationship”).

    [82].   See Joan H. Krause, Reconceptualizing Informed Consent in an Era of Health Care Cost Containment, 85 Iowa L. Rev. 261, 269 (1999) (explaining that the reason patients consult physicians is to utilize their “book knowledge” and “their experiences treating patients with similar conditions”).

    [83].   See Sheldon F. Kurtz, The Law of Informed Consent: From “Doctor is Right” to “Patient has Rights,” 50 Syracuse L. Rev. 1243, 1244 (2000) (explaining how early medical care was dominated by the notion that physicians should share very little with their patients, especially negative prognoses).

    [84].   Id. 1243-44.

    [85].   See id. (discussing the views of early medical providers, including Plato who prescribed to the idea that lying to the patient was acceptable in certain circumstances in order to persuade them to accept treatment).

    [86].   See Richards, supra note 19, at 85-86 (explaining how modern cases like Canterbury with patient-based standards are reflective of the inherent autonomous purpose of the informed consent doctrine that patients should be able to determine their course of treatment).

    [87].   See id. at 75-76 (analyzing the evolution of informed consent cases from battery forms of liability to patient decision-making bases for disclosure).

    [88].   See Jandre, 813 N.W.2d at 674-75 (Roggensack, J., dissenting) (explaining how the lead opinion transforms the informed consent law into patients having a right to be informed about all treatments and procedures that may be relevant to whether the correct diagnosis was made, including procedures not recommended by the physician).

    [89].   See McGeshick v. Choucair, 9 F.3d 1229, 1234 (7th Cir. 1993) (explaining that the informed consent statute in Wisconsin “does not impose on the physician a general duty to inform the patient; it limits the duty to inform to situations in which the physician has [made a recommendation on] a course of treatment”).

    [90].   See Statement by the Wisconsin Hospital Association, the Wisconsin Medical Society and the Wisconsin Chapter of the American College of Emergency Physicians concerning the Supreme Court decision on Jandre v. Wisconsin Injured Patients and Families Compensation Fund (Apr. 17, 2012), http://www.wha.org/Data/Sites/1/pubarchive/news_releases/nr4-17-12jandre.pdf [hereinafter Statement] (explaining how experience and medical judgment of the physician will be undermined by this decision and conversations between patients and physicians will be confusing).

    [91].   See Jandre, 813 N.W.2d at 684 (Roggensack, J., dissenting) (explaining that disclosing the procedure to the patient would only be relevant to show the physician’s ability in correctly finding a diagnosis).

    [92].   See Statement, supra note 90 (quoting WACEP Executive Director Rich Paul that the Jandre decision will have a substantial effect on health care costs).

    [93].   See Scaria, 227 N.W.2d at 653-55 (stating the reasonable patient standard outlined from Canterbury is preferred because of fairness and allows the jury to measure the patient’s decision based on each patient’s given circumstances).

    [94].   See Martin, 531 N.W.2d at 78-79 (noting that the distinction between diagnostic procedures and medical treatments is not significant for informed consent claims). A plaintiff may bring an action alleging a physician’s failure to disclose regarding a diagnostic procedure. Id.

    [95].   See id. (stating that disclosure is limited to the facts of each situation); see also Bubb, 768 N.W.2d at 920 (following Martin in holding that procedures purely diagnostic in nature are not excluded from informed consent analysis). In Bubb, a physician was alleged to have failed to inform the patient about the existence of a Doppler ultrasound which measures the severity of a TIA. Id. at 912-13.

    [96].   Jandre, 813 N.W.2d at 675 (Roggensack, J., dissenting).

    [97].   See Jandre, 813 N.W.2d at 673 (Prosser, J., concurring) (explaining that this new scope of information to be given to the patient must allow the patient to not only reject a recommended mode of treatment or diagnosis but also select a different one; this goes beyond the meaning of consent). “To require physicians to list such a parade of horribles under these circumstances is not countenanced under either law or policy.” Pratt, 414 N.W.2d at 402.

    [98].   See Farina, 754 A.2d at 1223 (explaining there is a difference between identifying the source of the disease and identifying the course of treatment).

    [99].   Jandre, 813 N.W.2d at 639-40.

  [100].   Compare Jandre, 813 N.W.2d at 641 (explaining how Dr. Bullis was unsure of the source of Jandre’s symptoms and Bell’s palsy is not related to a TIA or stroke), with Martin, 531 N.W.2d at 74 (explaining how the physician knew the patient suffered a head injury by evidence of unconsciousness, bruising and swelling of the head, and amnesia); and Bubb, 768 N.W.2d at 905-06 (describing how Dr. Brusky “concluded” that plaintiff had suffered a transient ischemic attack and describing how a TIA is similar to a stroke because of a lack of blood to the brain).

  [101].   Bubb, 768 N.W.2d at 903.

  [102].   Martin, 531 N.W.2d at 74; Bubb, 768 N.W.2d at 905-06.

  [103].   Jandre, 813 N.W.2d at 640.

  [104].   See id. (describing how Bullis was able to narrow Jandre’s symptoms between a TIA and Bell’s palsy, but her initial diagnosis included the possibility of all types of stroke including ischemic and hemorrhagic strokes, as well as tumors, Guillain-Barre, multiple sclerosis, and multiple other things). Bullis noted that her differential diagnosis included “some of the more obscure disease processes.” Id.

  [105].   Martin, 531 N.W.2d at 73-74.

  [106].   See id. at 74 (describing how the plaintiff’s head injury developed into intracranial bleeding based on additional symptoms not known at the time of original diagnosis).

  [107].   Bubb, 768 N.W.2d at 906.

  [108].   See id. at 906-07 (explaining how Doppler ultrasounds are used in evaluating whether a patient who suffers a TIA is at imminent risk of a stroke).

  [109].   See Jandre, 813 N.W.2d at 654 (finding that Bubb’s holding governs Jandre).

  [110].   Id. at 654-55.

  [111].   Id. at 641 (describing how Dr. Bullis ruled out TIA by using a stethoscope to listen for bruits, a technique used to determine artery blockage).

  [112].   Bubb, 768 N.W.2d at 906-07.

  [113].   See Jandre, 813 N.W.2d at 675 (explaining how “Bullis pursued various diagnostic procedures to determine the ailment causing Mr. Jandre’s symptoms”).

  [114].   See Jandre, 813 N.W.2d at 675 (explaining the steps Bullis took from considering many illnesses to concluding on Bell’s palsy).

  [115].   See Linquito, 850 A.2d at 543 (explaining that when a diagnosis is accurate, there would be no medically reasonable treatment alternatives for defendant to discuss with his patient); see also Matthies v. Mastromonaco, 733 A.2d 456 (N.J. 1999) (stating that the ultimate decision regarding treatment is the patient’s, but choosing among medically reasonable treatment alternatives is shared between physicians and patients).

  [116].   See Jandre, 813 N.W.2d at 676 (explaining how the jury found Bullis not negligent in her diagnosis of Jandre’s illness of Bell’s palsy).

  [117].   See id. at 682-83 (Roggensack, J., dissenting) (discussing how the lead opinion would not have found Dr. Bullis violated the informed consent statute if the diagnosis of Bell’s palsy had been correct).

  [118].   See id. at 683 (Roggensack, J., dissenting) (explaining how the reasoning of the lead opinion is not supported by the basis of previous informed consent law, specifically the goal of informing patients about procedures that the physician recommends to the patient).

  [119].   See Pratt, 414 N.W.2d at 401 (concluding that a physician did not have a duty to disclose the risks inherent in other causes that the physician could not categorically eliminate). In Pratt, a physician could not determine the cause of plaintiff’s birth defects; therefore no duty existed to explain each possible cause. Id.

  [120].   See Linquito, 850 A.2d at 543 (explaining that when a physician makes an improper diagnosis of a non-existent specific health problem, he cannot be expected to give his patient necessary information so that the patient can elect to test for a condition he is told does not exist). In Linquito, the physician chose not to order additional testing because he opined the symptoms and findings did not indicate cancer. Id. at 542. The appropriate claim is malpractice or negligence. Id. at 543.

  [121].   McGeshick, 9 F.3d at 1234.

  [122].   See id. at 1231 (explaining an angiography as the undisclosed diagnostic measure).

  [123].   Id.

  [124].   See id. at 1235 (recognizing that other cases have found the informed consent doctrine as embodying the general right to knowledge concerning one’s condition, but concluding this recognition is not a trending area of the law).

  [125].   See id. at 1234 (finding the intent of the statute clearly limits the application of informed consent to either proposed procedures or modes of treatment, not a generalized right to know everything about a patient’s condition).

  [126].   Jandre, 813 N.W.2d at 640-41.

  [127].   See Douglas Andrew Grimm, Informed Consent for All! No Exceptions, 37 N.M.L. Rev. 39, 65-66 (2007) (explaining that consent may be presumed in some cases of diagnostic procedures because the procedures are diagnostic in nature).

  [128].   See Ginsberg, supra note 17, at 18-19 (explaining how the informed consent doctrine aims to bring balance to the historically power imbalanced patient-physician relationship caused by the difference of relative medical expertise).

  [129].   See Krause supra note 82, at 268-69 (discussing how paternalistic physician ideas, where the physician tells the patient what should be done, have evolved).

  [130].   Id. at 270-71.

  [131].   See Schloendorff, 105 N.E. at 93 (stating “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body”).

  [132].   See Richards, supra note 19, at 71 (discussing how early cases held the purpose of the doctrine included a desire to have patients participate in the decision making process).

  [133].   See Pratt, 414 N.W.2d at 402 (analyzing how there would be “no logical stopping point” to such a requirement that could conceivably force physicians to inform patients of all risks associated with all conditions that were not diagnosed).

  [134].   See Jandre, 813 N.W.2d at 640-641 (listing all potential illnesses except Bell’s palsy and transient ischemic attack).

  [135].   See id. at 658 (explaining that “it is the patient’s condition, not the physician’s diagnosis, that drives the duty to disclose”).

  [136].   Id.

  [137].   See Wis. Stat. Ann. §  448.30 (listing the exceptions to the requirement of physician disclosure including, “[E]xtremely remote possibilities that might falsely or detrimentally alarm the patient”).

  [138].   See Jandre, 813 N.W.2d at 648 (explaining how a physician’s duty is based on “the facts and circumstances of the case and might, in some circumstances, reach conditions that are unrelated to the final diagnosis”).

  [139].   See Hall, 190 P.3d at 865 (explaining how a physician does not have to disclose diagnostic procedures that are not medically indicated and these errors are covered by claims of negligent misdiagnosis).

  [140].   See Kurtz, supra note 83, at 1245, 1249 (explaining that today the informed consent doctrine gives patients the right to participate and an exception exists if the disclosure poses a detriment to the patient by disclosing non-medically indicated information).

  [141].   Id.

  [142].   Id.

  [143].   See Jandre, 813 N.W.2d at 684 (Roggensack, J., dissenting) (explaining the only relevance to disclosing the carotid ultrasound would be to determine whether Bullis’ diagnosis was correctly made).

  [144].   Id.

  [145].   See Jandre, 813 N.W.2d at 641 (explaining that after Bullis diagnosed Bell’s palsy, she informed Jandre of her diagnosis, prescribed medication, and sent him home with instructions to see a neurologist at his earliest convenience and indicating Jandre saw a family medicine physician three days later who noted Jandre exhibited signs of resolving Bell’s palsy).

  [146].   Id. The inference can be made because there is evidence that Bullis told Jandre of her diagnosis and he complied with her recommendations by following up with a family physician three days later. Id.

  [147].   See Richards, supra note 19, at 74 (summarizing the early purposes for enforcing battery liability was due to physicians performing non-authorized procedures that resulted in unwanted touching); see also Grimm, supra note 127, at 43 (describing the four societal interests that informed consent cases look to achieve: preservation of life, prevention of suicide, maintenance of the medical profession’s integrity, and the protection of the interests of third parties).

  [148].   See Canterbury, 464 F.2d at 787 (concluding that disclosure is required when the information posed to patients would be significant to a reasonable patient in deciding whether or not to forego the proposed therapy).

  [149].   Jandre, 813 N.W.2d at 647. The requirement to disclose outlined in Jandre would trigger whether or not treatment has been proposed by the physician. See id. (stating that the patient’s condition triggers the duty to disclose).

  [150].   See id. at 675 (Roggensack, J., dissenting) (explaining how a physician would be liable after an injury for failing to inform about potential diagnoses and potential tests that could have been utilized to evaluate if different ailments were the source of the patient’s symptoms).

  [151].   See id. (explaining how the jury found Bullis was not negligent and conformed to the standard of care in her diagnosis of plaintiff’s injuries).

  [152].   Id.

  [153].   See Statement, supra note 90 (quoting Wisconsin Medical Society CEO Rick Abrams, “The effort to move from volume- to value-based health care . . . will be pushed in the opposite direction in Wisconsin.”). The Jandre result will “encourage the practice of defensive medicine through the ordering of unnecessary and sometimes potentially risky tests, and complicate the ongoing health care reform debate in this state.” Id.

  [154].   See David C. Dugdale, Ronald Epstein & Steven Z. Pantilat, Time and the Patient–Physician Relationship, 14(S1), J. of Gen. Internal Med., 34(S), S(36) (1999) (explaining how a major concern for health care providers is how administrative or economic forces may lead to a reduction in the time physicians are available to see patients).

  [155].   See Atul Gawande, The Cost Conundrum: What a Texas town can teach us about health care, The New Yorker, June 1, 2009, available at http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande#ixzz1MYVB2Szl (exploring the nation’s most expensive city for health care, McAllen, Texas, and concluding that part of the reason health care was so expensive was because patients in McAllen “got more of pretty much everything—more diagnostic testing, more hospital treatment, more surgery, more home care”); see also Jeff English, Fixing Georgia’s Medical Tort System, The Savannah Morning News, Oct. 17, 2012, available at http://savannahnow.com/column/2012-10-18/english-fixing-georgias-medical-tort-system (explaining how many tests are ordered by physicians for the sole purpose of avoiding a lawsuit). “Because there is no regard for cost, our health care system is on a road to peril.” Id.

  [156].   English, supra note 155.

  [157].   See Kurtz, supra note 83, at 1251 (explaining how the influential Canterbury decision is consistent with the purposes of informed consent, which include a respect for patient’s autonomy and a desire to have patients participate in medical decision-making).

  [158].   See Statement, supra note 90 (appreciating how Justice Prosser agrees that the effects of the Jandre decision will have “profound consequences” on the practice of medicine and the decision comes at “great cost” to our health care system).

  [159].   See id. (declaring that the Jandre result puts physicians in the “difficult position” of not knowing how much disclosure is enough to satisfy their duties regarding diagnostic tests for diagnoses already ruled out by the physician). The Wisconsin Hospital Association, the Wisconsin Medical Society, and the Wisconsin Chapter of the American College of Emergency Physicians stated they plan to pursue legislation to address this issue. Id.

  [160].   See Scaria, 227 N.W.2d at 655 (concluding the better approach for determining liability in informed consent cases is the reasonable man objective standard).

  [161].   See Jandre, 813 N.W.2d at 635 (explaining that the standard of disclosure is rooted in the facts and circumstances surrounding each particular case).

  [162].   English, supra note 155. “Thanks to the boundless ability of attorneys to sue doctors for almost any cause, physicians are escalating their practice of defensive medicine. I will do whatever I can to prevent a lawsuit.” Id.

  [163].   See Jason D. Fodeman, Defensive medicine costs, The Washington Times, Nov. 29, 2009, available at http://www.washingtontimes.com/news/2009/nov/29/defensive-medicine-costs/ (explaining how unpredictable jury awards result in frivolous lawsuits, and that 83% of doctors in a recent survey ordered unnecessary tests, procedures, and specialty consults in order to protect themselves from lawsuits).

  [164].   See McGeshick, 9 F.3d at 1234 (explaining how upholding a case holding a physician liable under informed consent for not disclosing a certain procedure that would have prevented the injury imposes a general duty to inform on physicians).

  [165].   See Backlund, 975 P.2d at 955 (explaining how Washington is declining to create an alternate cause of action under informed consent theory on the same facts necessary to establish a claim of medical negligence); see also Binur, 135 S.W.3d at 655 (explaining how Texas courts recognize that when a physician recommends an unnecessary procedure that leads to injury, there may be liability for misdiagnosis or prognosis, but no claim for lack of informed consent).

  [166].   See McGeshick, 9 F.3d at 1234-35 (explaining how the Seventh Circuit departed from the state appellate decision in Martin v. Richards, 500 N.W.2d 691, 702 (Wis. Ct. App. 1993), because it did not believe the Wisconsin Supreme Court would adopt a general duty to inform concept for informed consent disclosure duties).

  [167].   McGeshick, 9 F.3d at 1234.

  [168].   Combining the proposed language with the language of the current the statute would state:

Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physicians duty to inform the patient under this section does not require disclosure of:

. . . .

(7) Information regarding treatments relating diagnoses that have been previously ruled out by the physician.

Wis. Stat. §  448.30 (West 2012),

  [169].   See Pratt, 414 N.W.2d at 402 (explaining that liability for a lack of disclosure is directly related to affirmative treatment, and when the theory for liability is based on a lack of disclosure of the overall condition, the action is traditional malpractice).

  [170].   In simpler terms, physician diagnoses the source of the symptoms as X, thus ruling out Y as the source of the symptoms. Physician has a duty to disclose alternative diagnostic tests related to the severity of X, but physician does not have a duty to disclose alternative diagnostic tests related to Y.

  [171].   See Backlund, 975 P.2d at 955 (explaining how Washington is declining to create an alternative cause of action under informed consent theory on the same facts necessary to establish a claim of medical negligence).

  [172].   Jandre, 813 N.W.2d at 641 (explaining how Bullis used both Jandre’s symptoms and the tests performed in ruling out an ischemic stroke event and finally coming to a final diagnosis of a mild form of Bell’s palsy).

  [173].   See Richards, supra note 19, at 75-76 (describing the historical evolution of informed consent in American law, noting the shift from battery to negligence principles).

  [174].   See Scaria, 227 N.W.2d at 654 (explaining that an action for failure to inform can be brought when the risks are pertaining to an aortogram, a diagnostic procedure aimed at discovering the cause of hypertension).

  [175].   See Kurtz, supra note 83, at 1251 (explaining how one of the main purposes of informed consent is the desire to have patients participate in medical decision-making).

  [176].   See McGeshick, 9 F.3d at 1234 (reiterating Judge Eich’s dissenting appellate court opinion in Martin, 500 N.W.2d at 702, which argued that informed consent liability must be connected to a contemplated affirmative treatment).

  [177].   See Bubb, 768 N.W.2d at 905-06 (explaining how the physician-defendant concluded that the plaintiff suffered from a TIA, and the complaint alleged the defendant should have informed the plaintiff about alternative treatments); Martin, 531 N.W.2d at 74 (indicating the plaintiff had suffered a significant head injury based on the facts, but the severity of the head injury was still unclear).

  [178].   See Jandre, 813 N.W.2d at 635 (explaining that the amount of disclosure needed to satisfy the duty is determined by the particular facts within each patient’s injury).

  [179].   Id. at 641.

  [180].   See id. at 682 (explaining how Bullis recommended Mr. Jandre see his private physician within a week or sooner, and that advice was consistent with her diagnosis of Bell’s palsy).

  [181].   Bubb, 768 N.W.2d at 905-06.

  [182].   Wis. Stat. Ann. §  448.30 (West 2012).

 183. See Martin, 531 N.W.2d at 74 (listing the facts that the physicians had in their possession including she had run into the back of a dump truck, she was vomiting, there was amnesia, and she was unconscious).

  [184].   Id.

  [185].   See Fodeman, supra note 163 (estimating the yearly cost of the practice of defensive medicine between $60 and $200 billion).

  [186].   See id. (explaining that another harm of defensive medicine is the cost in opportunity, meaning that when an unnecessary test is ordered, a patient who truly needs the procedure done must wait their turn); see also Statement, supra note 90 (explaining that as a result of Jandre, conversations between physicians and their patients will be confusing and lead to unnecessary tests and procedures).

  [187].   See Scott Haig, When the Patient Is a Googler, Time Health and Family, Nov. 8, 2007, available at http://www.time.com/time/health/article/0,8599,1681838-1,00.html (describing the importance of a physician knowing what type of patient the physician is dealing with and how to adjust the communicative style accordingly to best serve the particular needs of the patient).

  [188].   See Boland, supra note 27, at 3-4 (describing the battery cases of the early 1900s where successful treatment that was performed without the patient’s consent was considered wrongful).