Friday, October 3, 2008

Synopsis of 'Bubb v. Brusky'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 104, in this case (2007AP619), see Review granted in 'Bubb v. Brusky'.
The issue raised in this medical malpractice case is whether the trial court committed reversible error when it precluded the jury from considering an informed consent claim by plaintiffs Richard and Marjorie Bubb.

The Bubbs seek review of a Court of Appeals' decision affirming a circuit court judgment dismissing their claims after a jury verdict finding that Drs. William Brusky and Xian Feng Gu were not negligent in their care and treatment of Richard Bubb.

Some background: On the evening of Oct. 24, 2001, Richard Bubb was taken by ambulance to St. Agnes Hospital after he fell to the floor while having dinner. Dr. Brusky was on duty in the emergency department and reviewed Richard's symptoms and ordered various tests including a CT scan, EKG, and blood test.

Richard's symptoms began to diminish while he was at the hospital. After the tests were done, Richard said he was feeling better and wanted to go home. Based on the tests performed and the fact that Richard's symptoms were resolving, Dr. Brusky concluded Richard had experienced a transient ischemic attack, or TIA. The primary cause of a TIA is atherosclerotic disease, a buildup of cholesterol plaque that is often called hardening of the arteries which can diminish the heart's capacity to provide blood to the brain. After consulting with Dr. Gu, a neurologist, it was agreed Richard would see Dr. Gu for a follow up. However, before the follow-up appointment, Richard was taken to the emergency room at St. Joseph’s Hospital in West Bend because he suffered a stroke. The doctors there discovered that Richard's right carotid artery showed a 90 percent blockage.

The plaintiffs filed suit, claiming that the negligence of Drs. Brusky and Gu caused Richard serious and permanent injuries to his left arm, left leg, and the left side of his face.

The jury returned a verdict in favor of Drs. Brusky and Gu, determining that neither doctor was negligent in his care and treatment of Richard. The trial court entered judgment dismissing the plaintiffs' claims and awarding costs to the defendants. The plaintiffs moved for a new trial arguing, among other things, that the trial court had improperly dismissed the informed consent claim and specifically challenging the decision to omit the informed consent jury instruction and special verdict question. The circuit court denied the motion. The plaintiffs appealed, and the Court of Appeals affirmed.

A decision from the Supreme Court would further develop and clarify the law on informed consent issues which are likely to recur. From Fond du Lac County. Justice Annette Kingsland Ziegler did not participate.