Expanding the Scope of “Physician Who Treats” under Wisconsin’s Informed Consent Statute

Introduction

This commentary examines the Wisconsin Supreme Court’s decision in Melissa A. Hubbard v. Carol J. Neuman, M.D., 2025 WI 15, which clarifies the reach of Wisconsin’s informed consent statute (WIS. STAT. § 448.30). Plaintiff Melissa Hubbard alleged that her OB/GYN, Dr. Neuman, failed to inform her that she had recommended ovary removal to a colleague and planned to participate in that surgery—even though Dr. Neuman did not personally remove the ovaries. The central issue was whether Dr. Neuman qualified as a “physician who treats” Hubbard under § 448.30, thereby triggering a duty to obtain informed consent for the ovary removal.

• Parties: Melissa A. Hubbard (plaintiff) v. Carol J. Neuman, M.D. (defendant) • Court below: Rock County Circuit Court (Judge Derrick A. Grubb) and Wisconsin Court of Appeals • Key issue: Statutory definition of “physician who treats a patient” in the context of informed consent • Holding: A complaint alleging factual involvement in planning or recommending treatment can survive dismissal if it plausibly pleads that the physician “treated” the patient under § 448.30.

Summary of the Judgment

The Wisconsin Supreme Court, by majority opinion (Chief Justice Ann Walsh Bradley), affirmed the Court of Appeals’ denial of Dr. Neuman’s motion to dismiss Hubbard’s complaint. The court held that:

When evaluating a motion to dismiss under WIS. STAT. § 802.06(2)(a)6, all well-pleaded facts and reasonable inferences are accepted as true and the complaint is liberally construed.
The Wisconsin informed consent statute, WIS. STAT. § 448.30, codifies the duty of “any physician who treats a patient” to disclose risks, benefits, and reasonable alternatives.
Hubbard’s complaint alleged that Dr. Neuman diagnosed her, recommended ovary removal to a colleague, participated in pre-surgery planning, and intended to participate in the surgery itself. If true, these facts could make Dr. Neuman a treating physician under § 448.30.
Because it was not “clear that under no circumstances can the claimant recover,” Dr. Neuman’s motion to dismiss was properly denied and the claim may proceed to discovery.

Analysis

Precedents Cited

Hannemann v. Boyson (2005 WI 94): Established common-law informed consent standards in Wisconsin and confirmed that § 448.30 codifies those standards.
Scaria v. St. Paul Fire & Marine Ins. Co. (1975): Adopted the reasonable-patient standard for disclosure; § 448.30 initially embodied similar principles.
Banuelos v. Univ. of Wis. Hosps. & Clinics Auth. (2023 WI 25): Reinforced independent review of statutory interpretation questions and motions-to-dismiss standards.
Kaloti Enters., Inc. v. Kellogg Sales Co. (2005 WI 111): Clarified liberal construction of complaints on motions to dismiss.
Yacht Club at Sister Bay Condo. Ass’n v. Village of Sister Bay (2019 WI 4): Reiterated that all well-pleaded facts and reasonable inferences must be accepted as true.

These precedents guided the court’s dual inquiry: first, the proper interpretation of § 448.30; second, the sufficiency of the complaint under Wisconsin’s liberal pleading rule.

Legal Reasoning

The court’s reasoning proceeded in two main steps:

Statutory Interpretation of “Physician Who Treats”: WIS. STAT. § 448.30 requires that “any physician who treats a patient” disclose material information about proposed treatments. The majority rejected a rigid rule that only the surgeon who wields the scalpel is a “treating” physician. Instead, “[i]nformed consent cases are fact-driven and context-specific,” and § 448.30 must be read to encompass physicians whose ongoing diagnosis, referrals, collaborative planning, and intended participation in a procedure bring them within the scope of treatment.
Pleading Standard on Motion to Dismiss: Informed consent claims must survive dismissal if the complaint alleges facts that, if proved, could impose a statutory duty. By alleging that Dr. Neuman diagnosed Hubbard’s endometriosis, recommended ovary removal, discussed surgical planning with the operating surgeon, and intended to attend the procedure, the complaint plausibly alleged that Dr. Neuman “treated” Hubbard under § 448.30.

Impact

This decision broadens the category of physicians subject to informed consent obligations in Wisconsin. Its practical effects include:

Expanded Duty to Disclose: Physicians who refer, co-manage, or plan surgical care with colleagues must consider whether they have an independent duty to inform patients of risks and alternatives.
Early Litigation Screening: Defendants will find it harder to dismiss informed consent claims at the pleading stage; courts will examine the physician’s holistic involvement rather than a narrow transactional test.
Collaborative Care Caution: Multi-specialty teams may need clearer protocols for informed consent to ensure that each physician’s role is documented and disclosures are made.

Complex Concepts Simplified

Informed Consent Statute (WIS. STAT. § 448.30): A law requiring any physician who “treats” a patient to explain benefits, risks, and reasonable alternatives before major interventions.
“Physician Who Treats”: Not limited to the surgeon performing a procedure; may include doctors who diagnose, refer, plan, or attend surgeries in a manner that substantially engages with the treatment decision.
Motion to Dismiss for Failure to State a Claim: A pre-trial request arguing the plaintiff’s allegations—even if true—do not establish a legal basis for relief. Courts must accept all well-pleaded allegations and reasonable inferences, dismissing only when recovery is impossible under any conceivable fact pattern.

Conclusion

Hubbard v. Neuman marks a significant expansion of informed consent obligations under Wisconsin law. By affirming that physicians may “treat” patients through diagnosis, referral, collaborative planning, and intended participation in procedures, the court underscored the fact-sensitive nature of informed consent claims. Going forward, medical providers should ensure clear, documented disclosures whenever they exercise control or influence over treatment options—even if they do not perform the final procedure. This decision is poised to shape informed consent litigation and collaborative medical practice across Wisconsin.