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Hannemann v. Boyson6/29/2005
REVIEW of a decision of the Court of Appeals. Affirmed.
The plaintiff, Gary Hannemann (Hannemann), seeks review of a published court of appeals decision, Hannemann v. Boyson, 2004 WI App 96, , 273 Wis. 2d 457, 681 N.W.2d 561, affirming in part, reversing in part, and remanding with directions a judgment of the Outagamie County Circuit Court, Harold V. Froehlich, Judge. The circuit court entered judgment on the jury verdict in favor of Hannemann in his chiropractic malpractice case against the defendant, Dr. Craig Boyson (Boyson). The court of appeals held, inter alia, that the special verdict submitted to the jury was erroneous because it asked only whether Boyson was negligent in his treatment of Hannemann and did not separately ask whether Boyson failed to obtain Hannemann's informed consent for the procedure that allegedly caused his injury. Id.
We agree with Boyson and the court of appeals that negligent treatment and failure to obtain informed consent in the context of chiropractic malpractice are two different issues that require separate verdict questions. We conclude that although the practice of chiropractic and the practice of medicine are distinct health care professions, the obligation of the practitioners of both to disclose the risks of the treatment and care they provide should be the same. While the actual disclosures will inevitably vary between doctors and chiropractors, the nature of the duty and limitations thereon should be the same. A patient of chiropractic has the same right as a patient of medical practice to be informed of the material risks of the proposed treatment or procedure so that he may make an informed decision whether to consent to the procedure or treatment. As such, we hold that the scope of a chiropractor's duty to obtain informed consent is the same as that of a medical doctor.
Furthermore, we conclude that the circuit court's failure to submit a separate special verdict on informed consent after separately instructing the jury on negligent treatment and informed consent constituted prejudicial error. We therefore affirm the decision of the court of appeals reversing part of the judgment of the circuit court and remanding the case for a new trial.
I. FACTUAL BACKGROUND
On August 21, 2000, Hannemann filed a complaint against Boyson in Outagamie County Circuit Court, alleging that " rom August 7 through August 23, 1997, the defendant negligently provided chiropractic treatment to the plaintiff, Gary Hannemann, as a proximate consequence to which the plaintiff suffered serious and permanent injury . . . ." As stated with more particularity in his scheduling conference statement, Hannemann alleged that " he defendant negligently adjusted the plaintiff's cervical spine resulting in the plaintiff suffering a stroke with permanent disability."
A four-day jury trial was held beginning on August 15, 2003. During voir dire, Hannemann's attorney began arguing the theory that Boyson failed to provide informed consent by asking the potential jurors if they thought it was wrong for a doctor to warn a patient about the possibility of harm before performing a procedure, even if "it's a very remote risk" that may result in serious injury or death. During opening statements, Hannemann's attorney concentrated on Boyson's alleged failure to discuss the risks inherent in performing a cervical adjustment with Hannemann and his failure to perform appropriate tests on Hannemann.
The following facts and factual disputes were developed at trial. Hannemann began seeing Boyson in July 1996 due to lower back spasms and headaches he experienced as a result of his job, which required long periods of dr
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