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J.W. v. B.B.5/26/2005
edical reason," and thus "the physician's offending conduct was not part of the medical treatment accorded the patient."). Rather, the gravamen of the present plaintiffs' claims is that, under the applicable standard of professional care, performing digital-rectal prostate exams on healthy, twenty-five-year-old males during pre-employment physicals was "unnecessary and improper treatment," thus constituting medical malpractice. See id. at 442-43.
Because the plaintiffs' claims sound in medical malpractice, the fact at issue is whether the prostate exams were necessary and proper medical treatment under the circumstances. There is no dispute that the physician intended to and did perform digital-rectal prostate exams on the plaintiffs. Aside from whether the exams caused the plaintiffs any injury or damages, the only "fact of consequence" to the outcome of this litigation is whether the performance of the exams on these plaintiffs during their pre-employment physicals conformed to the requisite standard of professional care. If performing the exams constituted "unnecessary and improper" treatment under the standard of care, the physician was negligent and is liable for any injury or damages that resulted, even if his only motive for performing the exams was a good-faith belief that the exams were medically necessary and proper.
Conversely, if performing the exams was consistent with "the degree of care, skill, and judgment which reasonable [physicians] would exercise in the same or similar circumstances, having due regard for the state of medical science at the time plaintiff[s were] treated," the physician was not negligent and cannot be held liable for any pain, embarrassment or emotional distress the procedures may have caused. This is so even if the physician also had a non-professional motive for performing the exams. In short, the physician's motive or intent in conducting the exams is simply not relevant to the dispositive inquiry, which is solely an objective determination.
The plaintiffs contend, however, that " otive evidence makes it more probable that [the physician] deviated from the standard of care by showing that his actions were incongruent with medical requirements." We reject this contention. What the physician did or did not do during the plaintiffs' pre-employment physicals will be established by the testimony of the parties. What the standard of professional care requires or permits a physician to do or not do under the circumstances will be established by the testimony of medical experts. Quite simply, the physician's motive for conducting the exams has no tendency to make it more or less probable that "his actions were incongruent with medical requirements" because that determination turns exclusively on a comparison of what the physician did to what a "reasonable physician" would have done "in the same or similar circumstances."
We reach the same conclusion regarding the plaintiffs' informed consent causes of action. The plaintiffs' claims that the physician did not obtain their informed consent prior to the digital-rectal exams are also grounded on a negligence theory. See Schreiber v. Physicians Ins. Co., 223 Wis. 2d 417, 427, 588 N.W.2d 26 (1999) (noting that "negligence--the doctor's failure to exercise reasonable care to a patient" is now the "theoretical underpinning" of the informed consent doctrine). The relevant inquiries focus on what a reasonable patient would want to know before consenting to a given procedure: "did the physician fail to give information that a reasonable patient would want to know? .... [And,] given the additional information, would the reasonable patient have acted differently than they did without the informa
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