In a 5-2 ruling the Wisconsin Supreme Court kept alive a woman's lawsuit against a doctor who had recommended surgery to another doctor that was performed on the woman without her knowledge. (Photo by Henry Redman/Wisconsin Examiner)

A patient whose ovaries were removed without her knowledge during colon surgery can sue the doctor who she says recommended the procedure, the Wisconsin Supreme Court ruled Friday.

In the opinion, five of the Court’s seven justices agreed that lower courts were correct when they refused to dismiss the patient’s lawsuit. With the ruling, the case is sent back to Rock County Circuit Court.

The patient, Melissa Hubbard, was being treated for endometriosis in 2018 by an obstetrician/gynecologist, Dr. Carol Neuman. During the time, Hubbard also was referred for surgery to remove a section of her colon.

The surgery was performed by Dr. Michael McGauley. During the procedure, Hubbard’s ovaries were removed, but she wasn’t told beforehand that would be part of the operation.

Hubbard initially sued McGauley, but that lawsuit was dismissed. She subsequently sued Neuman, charging that — without telling her — the OB/GYN had suggested to McGauley that he remove Hubbard’s ovaries during the colon surgery.

The lawsuit charges that when Neuman made the recommendation to McGauley, she violated Hubbard’s right to informed consent under Wisconsin law.

Neuman’s lawyers filed a motion in Rock County circuit court to dismiss the lawsuit on saying that, in the context of the surgery, Neuman was not Hubbard’s “treating physician” under the informed consent law.

Neuman’s lawyer argued that because the state law’s informed consent requirement applies to the “treating physician,” Hubbard had no case against Neuman since she did not perform the surgery and she never gave a formal order to the surgeon to remove Hubbard’s ovaries.

The circuit court judge denied the dismissal motion, and the state 4th District Court of Appeals agreed.

With Friday’s opinion, the Wisconsin Supreme Court also denied the motion to dismiss the case.

“We disagree with Dr. Neuman,” Chief Justice Anne Walsh Bradley wrote on behalf of the majority. “The essence of the inquiry is whether Hubbard’s complaint sufficiently alleges that Dr. Neuman was a ‘physician who treat[ed]’ Hubbard, even though she did not actually remove Hubbard’s ovaries herself. We conclude that it does.” 

Bradley was joined in the majority by Justices Rebecca Dallet, Brian Hagedorn, Jill Karofsky and Janet Protasiewicz.

According to the opinion, the complaint depicts “Neuman’s intimate involvement with the removal of Hubbard’s ovaries” — first, diagnosing Hubbard with a severe case of endometriosis and then advising her to consider removing her left fallopian tube and ovary.

“Second, after Hubbard agreed to undergo colon surgery, Dr. Neuman allegedly helped plan the surgery with Dr. McGauley,” Walsh Bradley wrote. “The physicians’ pre-surgery discussions and plans included Dr. Neuman’s plan to attend and participate in Hubbard’s surgery and to remove Hubbard’s ovaries herself. Hubbard also alleges that Dr. Neuman recommended to Dr. McGauley that he remove Hubbard’s ovaries.”

Those allegations in the lawsuit are enough to consider Neuman a treating physician in the case, Walsh Bradley wrote.

Justice Annette Ziegler, joined by Justice Rebecca Bradley, disagreed. 

“To be a treating physician under [the informed consent statute], the physician needs to either provide the treatment at issue himself or formally order the treatment at issue,” Ziegler wrote, citing the text and history of the law along with “the decisions of courts across the country that have addressed who qualifies as a treating physician.”

While Hubbard never told Neuman she wanted her ovaries removed and never consented to their removal in the surgery, Ziegler wrote, “the complaint never expressly alleges, nor reasonably implies, that Dr. Neuman performed or participated in the surgery or attended the surgery.”