 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
J.W. v. B.B.5/26/2005
tion?" Id. at 434. Again, these are objective, not subjective determinations, and they are wholly unrelated to the physician's motive for performing the exams.
Regarding the alleged lack of informed consent, the plaintiffs assert in their complaint that the physician "failed to properly advise them of the risks, options, alternatives, or necessity associated with" the prostate examinations. The facts of consequence in determining whether the physician performed the prostate exams without the plaintiffs' informed consent are (1) what he told them and (2) what he "should have" told them under the standard quoted above. As with the plaintiffs' malpractice claims, the physician's motive for conducting the exams, for telling the plaintiffs what he did regarding the exams, or for failing to tell them more, are simply of no consequence to the determination of the informed consent claims.
The plaintiffs assert that it is not they but the physician who has injected the issue of motive into this case by claiming that, in performing the digital-rectal exams, "he was fulfilling his best medical judgment." The defense of medical malpractice claims, however, routinely involves contentions that the defendant physician's conduct was consistent with accepted medical practice. The relevant and dispositive question is not whether the physician believed his actions were consistent with the standard of professional care, but whether his actions were in fact consistent with the standard. We emphasize again that, if the physician's actions fell below the requisite standard, he will be liable for damages he caused even if his motives were solely professional; he will not be liable if he did not violate the professional standard, regardless of what prompted him to provide the treatment he did. To prevail, the plaintiffs must establish that the prostate exams were "unnecessary and improper" medical treatment, Deborah S.S., 175 Wis. 2d at 443, not by establishing some improper motive on the part of the physician for performing the procedures.
The plaintiffs also attempt to rely on the criminal cases the circuit court cited in its ruling, and they undertake an analysis of the admissibility at trial of evidence of the physician's sexual orientation under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). The present negligence-based actions, however, bear no similarity to criminal prosecutions where, in order to prevail, the State generally must prove that a defendant's illegal conduct was intentional, and often that the defendant possessed a specific wrongful intent, such as sexual gratification or to deceive or inflict harm on the victim. As we have explained, there is no dispute in this case that the physician intentionally performed the exams in question. His civil liability for performing them does not turn on his state of mind when performing them but on whether objective standards of professional care were violated.
Finally, we acknowledge that, even though we have concluded the physician's sexual orientation is not "relevant to the subject matter involved" in this action and would be inadmissible at trial for that reason, the physician might still be ordered to disclose this information if it "appears reasonably calculated to lead to the discovery of admissible evidence." WIS. STAT.ยง 804.01(2)(a). The plaintiffs, however, have pointed to no potentially admissible evidence to which the disclosure of the physician's sexual orientation might lead. That is, the plaintiffs make no argument that learning the physician's sexual orientation is a necessary intermediate step that will permit them to discover other, potentially admissible evidence.
Because the physician's
Page 1 2 3 4 5 6 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|