Justice Rebecca Bradley poses questions during oral arguments in the Wisconsin Supreme Court on Tuesday. (Screenshot/WisEye)

When does a doctor’s recommendation to a colleague become something their mutual patient should know about?

That was the question that lawyers for an obstetrician/gynecologist and one of her patients discussed before the Wisconsin Supreme Court Tuesday. The recommendation, which the ob/gyn doctor made to a surgeon who operated on the patient, led to the woman having her ovaries removed without her knowledge or consent.

Dr. Carol Neuman made the recommendation to a surgeon, Dr. Michael McGauley, who was to remove a section of Melissa Hubbard’s colon. Neuman was treating Hubbard for endometriosis and suggested to McGauley that he could take out her ovaries during the same procedure.

He did so, but Hubbard didn’t learn about that step — or that Neuman had recommended it — until afterward.

Hubbard sued Neuman, claiming that the doctor should have told her about the recommendation. Neuman’s lawyers told the Rock County circuit judge hearing the case that it should be dismissed because one doctor’s recommendation to another doctor didn’t violate any duty under Wisconsin law.

The judge denied the dismissal motion, and it was that decision that was at the center of Tuesday’s arguments in the Supreme Court.

David Pliner, Neuman’s lawyer, told the justices that if Neuman had issued a medical order or a prescription, or if the surgeon had been a direct employee, it might have fallen under Wisconsin’s informed consent law.

“Dr. Neuman had nothing more than, at most, a conversation with Dr. McGauley, saying, ‘Here’s what I recommend you do,’” Pliner said. It was not a prescription or an order, however, he said.

There are “no allegations that she had the authority to require him to do it, order him to do it,” Pliner said.

At one point, according to court documents that the justices referred to Tuesday,  Neuman and McGauley had contemplated doing the surgery together. In the end, the ob/gyn observed the procedure but didn’t perform any part of it.

When it was his turn to present Hubbard’s case, her lawyer, Guy Fish, argued that it should be straightforward.

“Dr. Neuman was a treating physician up to and through the surgery, where she attended,” Fish said. “And she failed to disclose to Melissa Hubbard the recommendation that Dr. McGauley perform ovarian surgery upon her. Simply put, if Melissa had learned that recommendation before the surgery, she would have declined the surgery.”

Fish dismissed the distinction Pliner made between an order or prescription and a recommendation as “an argument of semantics.”

“I think that’s a misplaced analysis,” Fish said. “If the two doctors are discussing and [agree to a] recommendation or an order that a type of surgery is to be performed, I submit respectfully, the patient needs to be informed of that recommendation or prescription or order, so they can make the best, informed, fullest and timely decision on the care they’re going to receive.”

Justice Rebecca Bradley described the underlying allegations of the case as egregious, but questioned whether informed consent law was the appropriate instrument.

“This woman’s real complaint is the allegation that her ovaries were removed and no one told her they were going to remove her ovaries,” Bradley said.

She questioned the lower courts’ framing of the matter as a matter of informed consent.  “So we’re talking about and I am trying to figure out how we got to this point. It appears that the circuit court decided to interpret the complaint as one stating a claim for informed consent,” Bradley said.

“But the complaint is not that she wasn’t advised of alternative modes of treatment and the risks and benefits of different modes of treatment,” Bradley said. “We go back to older common laws. It’s kind of a battery. If a doctor removes somebody’s body part without telling them that that is what they’re planning to do, that is a terrible invasion.”

Bradley also briefly raised the question of whether McGauley had been sued as well. Pliner said that the surgeon had been sued before Neuman was. That case was dismissed, but the reason for the dismissal was never explained or discussed in Tuesday’s Court session.

Bradley and other justices seemed wary of the implications of the appeals court decision. 

Pliner argued that if it was affirmed, that could make Neuman’s recommendation, or other casual exchanges among medical professionals, subject to the informed consent law, to the detriment of medical care.

“What happens when physicians consult with each other?” Chief Justice Annette Ziegler asked Fish. “I mean, there may be a specialist who’s going to conduct a surgery and may want to consult with your GP over, you know, what else you may have going on. Would your GP have to have a separate meeting with the patient to disclose that the GP is going to give their opinion to the other surgeon?”

Fish said the specific facts of such conversations should govern whether informed consent is required. Doctor-to-doctor dialogue about the color of suture to use or whether to hold an operation in the morning or the afternoon would not rise to that level, he suggested.

“But this specific medical mode of a surgical removal of an ovary, I think, is mandated that that be disclosed to my client,” Fish said.

“The facts you’ve alleged for your client are egregious, right?” Rebecca Bradley said to Fish later in the arguments.

“Dr. McGauley is alleged to have removed her ovaries and not told her he was going to do that. That’s the big problem,” she said. “So setting aside the facts of your case, we have to be very careful about the pronouncement of law we make.”

The appeals court decision, Bradley said, has language “imposing a duty on all physicians, under all circumstances, to inform a patient about all reasonable alternative medical modes of treatment and the benefits and risks of treatment beyond the unique facts of your case, and that’s where we have to be very careful.”

The Wisconsin Supreme Court chambers. (Henry Redman/Wisconsin Examiner)

In February 2018 Melissa Hubbard underwent surgery to remove part of her colon. What she didn’t know until afterward was that her ovaries were removed as well.

Removing Hubbard’s ovaries had been recommended to Hubbard’s surgeon by her gynecologist to treat another painful condition that Hubbard was dealing with. But while the gynecologist had previously discussed the ovary surgery with her, Hubbard wasn’t ready to go forward with that procedure. She was unaware that the gynecologist had suggested it to the surgeon who was operating on her colon.

On Tuesday, the Wisconsin Supreme Court will hear oral arguments in a lawsuit that Hubbard has filed against the gynecologist, Dr. Carol Neuman. The lawsuit argues that Neuman’s recommendation to the surgeon without Hubbard’s knowledge was an act of medical negligence.

The lawsuit Hubbard filed against Neuman hasn’t gone to trial yet. The Ob/Gyn doctor, through her attorneys, argues that the lawsuit should be dismissed for failing to state a claim.

The lawsuit — and the doctor’s argument to throw it out — revolve around Wisconsin’s law that requires informed consent from patients for medical treatment.

Neuman’s lawyers argue that the doctor had no legal responsibility for Hubbard’s surgery under that law and no duty to tell Hubbard about what was merely Neuman’s recommendation to the surgeon, since Neuman didn’t perform the surgery herself.

A Rock County circuit judge disagreed with the doctor’s lawyers and rejected the summary judgment motion. The 4th District Wisconsin Court of Appeals upheld the circuit court’s refusal to dismiss the case. Now Neuman’s lawyers have asked the state Supreme Court to reverse those decisions.

Writing for a three-judge District 4 appeals court panel in March 2024, Judge Chris Taylor found that “the duty to inform a patient about ‘the availability of reasonable alternative medical modes of treatment and about the benefits and risks of these treatments’ applies to any physician who treats a patient, regardless of whether that physician actually performs the disclosed treatment options.”

According to the appeals court’s summary of the case, in 2018 Hubbard was in Neuman’s care for treatment of endometriosis — a condition in which the same sort of tissue that lines the inside of the uterus also grows outside the uterus. Endometriosis can cause pain as well as infertility, according to the Mayo Clinic.

In a medical note quoted in the original lawsuit, Neuman wrote that she told Hubbard she should consider having at least her left uterus tube and ovary removed, or both tubes and ovaries.

Those procedures would leave Hubbard unable to conceive a child, but Neuman wrote in her clinical note, “I believe her endometriosis is so severe she may need reproductive specialists to help her. She does not want to see them because her insurance does not cover this option.”

Hubbard did not agree to the removal of her reproductive organs, according to the lawsuit.

Neuman also referred Hubbard to a surgeon for a separate procedure: the removal of part of her colon due to a concern about cancer, according to Hubbard’s lawyer, Guy Fish of Milton.

Before the colon surgery, the doctor made a recommendation to the surgeon that he could remove Hubbard’s ovaries at the same time.

“Hubbard, prior to her surgery on February 13, 2018, at no time advised Neuman that she opted to have an ovary or ovaries be surgically removed” during the operation, however, according to Hubbard’s lawsuit.

Neuman and the surgeon, Dr. Michael McGauley, “engaged in pre-surgery discussions and planning … without including or briefing Hubbard,” the lawsuit states. At one point in their discussions, the plan was for Neuman to remove Hubbard’s tubes, ovaries and uterus, with McGauley performing the colon surgery in the same procedure.

Hubbard was not informed of those conversations, the lawsuit states. On the day that the surgery took place, McGauley performed the colon surgery and also removed Hubbard’s ovaries himself.

“Had Hubbard been apprised of Neuman’s pre-surgery recommendations to McGauley . . . Hubbard would have immediately cancelled the scheduled surgery for February 13, 2018 in order to consider all her options,” the lawsuit states.

Defending the motion to dismiss the case, Neuman’s lawyers have argued that a doctor’s recommendation to another doctor shouldn’t be subject to the state’s informed consent law.

“A recommendation is not an order or a prescription,” wrote Neuman’s legal team, from the Corneille Law Group in Madison, in a Supreme Court brief. The lawyers argued that not disclosing to Hubbard the recommendation Neuman made to the surgeon should not be treated as a violation of the state’s informed consent law.

“Treating physicians who discuss the patients’ care must be able to freely exchange their thoughts, opinions, advice and counsel without concern that they may each be liable for failing to disclose the content of those communications to the patient,” the brief for Neuman argues.

The brief asks the Supreme Court to send the case back to the Rock County circuit court with an order to dismiss the lawsuit.

But Hubbard’s lawyer argues that it’s in the interest of patients to encourage disclosure, including of communications among doctors.

“Doesn’t a treating physician more fully fulfill his/her duty by disclosing more pertinent medical information to the patient?” Fish asked in a brief to the high court. 

The lower court also rejected the assertion that holding the gynecologist responsible for providing informed consent for her recommendation to the surgeon would squelch doctors from freely consulting one another.

In making their ruling, the appeals court judges focused on whether the state law would not apply to Neuman even assuming all of the factual allegations in the lawsuit were true.

The effect of Neuman’s recommendation — the loss of Hubbard’s ovaries without her knowledge ahead of time — was instrumental enough to consider Neuman a “treating physician,” even though she didn’t perform the surgery, the lower court judges wrote.

In making the recommendation to the surgeon, they wrote, Neuman arguably had a responsibility to disclose to the patient the risks of the procedure, the probabilities of success and any alternative treatments that might be available.

In short, they ruled, Neuman failed to make the case for dismissing the case outright.