In today’s increasingly multidisciplinary healthcare environment, effective communication and transparency between physicians and patients are paramount—especially when it comes to surgical care.
When a physician collaborates with another provider to develop or refine a patient’s surgical plan, the duty to inform the patient about this collaboration is both an ethical obligation and a critical component of patient-centered care. Informing patients not only fosters trust and respects their autonomy, but also enhances their understanding of the proposed treatment, potential risks, and the roles of each provider involved.
Informed Consent in Healthcare
In California, informed consent is part of Title 22, § 72528—Informed Consent Requirements. Informed consent in healthcare is a crucial patient right that revolves around the disclosure of information, patient comprehension, and obtaining explicit authorization before proceeding with a procedure. A provider must properly disclose information so patients can make decisions about their medical treatment and options.¹
Informed consent is a cornerstone of patients’ rights, which also falls under Title 22 and states a patient's right is to “receive as much information about any proposed treatment or procedure as the patient may need in order to give informed consent or to refuse this course of treatment. Except in emergencies, this information shall include a description of the procedure or treatment, the medically significant risks involved in this treatment, alternate courses of treatment or nontreatment, and the risks involved in each and to know the name of the person who will carry out the procedure or treatment.”²
This Case of the Month, which reached the Wisconsin Supreme Court on the narrow matter of whether the allegations of a patient were sufficient to decline the physician’s motion to dismiss, exhibits how a patient can assert a claim for lack of informed consent against a physician when that physician solely discussed the procedure with the operating surgeon, but did not perform any part of the procedure.*
The Case:
In January 2018, Ms. H consulted with Dr. N, an OB/Gyn, for severe endometriosis. Dr. N recommended the removal of her left fallopian tube and ovary, but Ms. H declined to consent and opted to think about it instead. Subsequently, Dr. N referred her to Dr. M, a surgeon, for a discussion about a potential colon surgery. Ms. H provided her consent for the robotic-assisted laparoscopic colon resection with Dr. M, which took place on February 13, 2018.
Prior to the surgery, Dr. N and Dr. M discussed and planned the procedure without informing Ms. H of the surgical options, including:³
- Dr. N remove fallopian tubes/Dr. M remove colon, or
- Dr. N attend and participate in Ms. H’s surgery, or
- Dr. M remove ovaries
Dr. N was not involved in the procedure and Dr. M removed Ms. H's ovary. Ms. H was not informed about these plans and stated that she would have canceled the surgery had she been aware. Ms. H filed a lawsuit against Dr. N, claiming that as her treating physician, Dr. N breached the duty of care by failing to disclose the pre-surgery recommendations and plans.³
Dr. N filed a motion to dismiss the case with the sole contention she was not the “physician who treated” Ms. H, since she did not perform the ovary removal. However, the court denied the motion as it determined the allegations were adequate to withstand a motion to dismiss. Upon Dr. N's appeal, the appellate court stated that if the allegations were taken as true, there was a sufficient basis to support Ms. H’s assertion that Dr. N qualified as a “physician who treated” her under Wisconsin’s informed consent statute. This led Dr. N to appeal to the Supreme Court. The Supreme Court stated it must liberally interpret the allegations and only dismiss if it is clear under no circumstances, the patient could not recover damages. Upon reviewing the statute—which mandates that any physician treating a patient must inform them of reasonable alternative treatments along with their risks and benefits—the Supreme Court acknowledged that informed consent cases rely heavily on their specific facts and context. The Court concluded that Dr. N was indeed Ms. H’s treating physician throughout, given her close involvement in planning the ovary removal, thus qualifying her as a “physician who treated” Ms. H.³
This Wisconsin case centered on whether a physician who does not ultimately operate on a patient can be liable for lack of informed consent when another surgeon performs the surgery. The Wisconsin Supreme Court allowed the case to proceed, ruling that a physician with “intimate involvement” in planning the procedure has a duty to disclose, even if not present during the surgery.4
Significance of this ruling: Although the ruling applies specifically to Wisconsin, it underscores how involvement in pre‑procedure decision‑making—rather than hands‑on performance alone—may give rise to liability for informed consent obligations. In California, where the statutory framework refers to an “attending licensed healthcare practitioner,” such reasoning could support a broader application under similar circumstances.
Risk Management Strategies
The Joint Commission reports that communication failures were identified as the root cause in over 70% of sentinel events.5 Considering this Wisconsin Supreme Court ruling, what strategies might you implement to guarantee effective communication when multiple providers are involved?
The American Medical Association provides the following key recommendations:6
- Comprehensive Informed Consent Process: Ensure that patients receive detailed explanations about the surgical plan, potential risks, benefits, and alternatives.
- Documentation: Document the informed consent conversation and the patient’s (or surrogate’s) decision in the medical record.
- Encourage Patient Questions: Create an environment where patients feel comfortable asking questions about their care team and surgical plan, to promote understanding and shared decision-making.
The American College of Surgeons recommends the following strategies:7
- Clear Communication Protocols: Establish standardized procedures for discussing collaborative surgical plans with patients, ensuring that all involved providers agree on what information must be shared.
- Documentation: Meticulously document all discussions with the patient regarding the collaborative surgical plan and informed consent, including which providers were involved and what was communicated.
- Clarify Roles and Responsibilities: Define and communicate the specific roles of each provider in the surgical plan to avoid confusion or assumptions about who is responsible for obtaining consent.
- Training and Awareness: Regularly train healthcare providers on their duty to inform patients about collaborative care arrangements and the legal and ethical implications of informed consent.
Other risk recommendations:
- Use of Consent Forms Reflecting Collaboration: Update consent forms to explicitly mention the involvement of multiple providers when applicable, helping to clarify the scope of consent.
- Interdisciplinary Coordination: Foster close collaboration and communication among all providers involved in the surgical plan to ensure consistent messaging to the patient.
- Regular Audits and Feedback: Conduct periodic reviews of informed consent processes and patient communication practices to identify gaps and implement improvements.
Implementing these strategies can help mitigate legal and ethical risks associated with inadequate disclosure during collaborative surgical planning, and enhance overall patient trust and safety.
Rikki Valade, RN, BSN, PHN, Senior Risk Management and Patient Safety Specialist. Questions or comments related to this article should be directed to RValade@CAPphysicians.com.
*The Wisconsin Supreme Court focused on the portion of the statute that states “Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments…”
References
1Ervin, Yvette, “The Role of Informed Consent in Medical AI: Balancing Innovative Advancement with Patient Rights,” (January 16, 2025), Cooperative of American Physicians, https://www.capphysicians.com/articles/role-informed-consent-medical-ai…
2Westlaw California Code of Regulations, “§70707 Patients’ Rights,” Barclays Official California Code of Regulations,
https://govt.westlaw.com/calregs/Document/IB3CC9FDD5B6111EC9451000D3A7C…
3Allman, Christopher J., et al, “Case Law Update,” American Society for Health Care Risk Management Annual Conference, (October 2025), Charlotte, North Carolina
4Hubbard v. Neuman, 2025 WI 15, 416 Wis. 2d 170, 20 N.W.3d 720
5Dingley C, Daugherty K, Derieg MK, et al, “Improving Patient Safety Through Provider Communication Strategy Enhancements,” (August 2008), Agency for Healthcare Research, https://www.ncbi.nlm.nih.gov/books/NBK43663/
6AMA Code of Medical Ethics, Opinion 2.1.1: Informed Consent, https://www.ama-assn.org/delivering-care/ethics/informed-consent
7American College of Surgeons, Statement on Principles, (April 12, 2016), https://www.facs.org/about-acs/statements/stonprin