Chapter 448

448.09 History History: 1975 c. 383; 1977 c. 29; 1997 a. 175, 311; 1999 a. 32.

448.10 448.10 Previous practice. Notwithstanding s. 448.05 (2), a person who, on April 1, 2015, possessed a valid license to practice medicine and surgery under s. 448.05 (2) or 448.065, 2011 stats., may retain, practice under, and continue to renew that license, subject to any other provisions in this subchapter or any rules promulgated by the board governing a license to practice medicine and surgery.

448.10 History History: 1975 c. 383, 421; 1981 c. 390; 1985 a. 135; 1993 a. 107; 1997 a. 175; 2013 a. 240.

448.11 448.11 Injunction. If it appears upon complaint to the board by any person or if it is known to the board that any person is violating this subchapter, or rules adopted by the board under this subchapter, the board or the attorney general may investigate and may, in addition to any other remedies, bring action in the name and on behalf of the state against any such person to enjoin such person from such violation. The attorney general shall represent the board in all proceedings.

448.11 History History: 1975 c. 383; 1997 a. 175.

448.115 448.115 Duty to report.

448.115(1) (1) A physician who has reason to believe any of the following about another physician shall promptly submit a written report to the board that shall include facts relating to the conduct of the other physician:

448.115(1)(a) (a) The other physician is engaging or has engaged in acts that constitute a pattern of unprofessional conduct.

448.115(1)(b) (b) The other physician is engaging or has engaged in an act that creates an immediate or continuing danger to one or more patients or to the public.

448.115(1)(c) (c) The other physician is or may be medically incompetent.

448.115(1)(d) (d) The other physician is or may be mentally or physically unable safely to engage in the practice of medicine or surgery.

448.115(2) (2) No physician who reports to the board under sub. (1) may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith.

448.115 History History: 2009 a. 382.

448.12 448.12 Malpractice. Anyone practicing medicine, surgery, osteopathy, or any other form or system of treating the sick without having a license or a certificate of registration shall be liable to the penalties and liabilities for malpractice; and ignorance shall not lessen such liability for failing to perform or for negligently or unskillfully performing or attempting to perform any duty assumed, and which is ordinarily performed by authorized practitioners.

448.12 History History: 1975 c. 383, 421.

448.13 448.13 Biennial training requirement.

448.13(1) (1) 

448.13(1)(a) (a) Except as provided in par. (b), each physician shall include with his or her application for a certificate of registration under s. 448.07 proof of attendance at and completion of all of the following:

448.13(1)(a)1. 1. Continuing education programs or courses of study approved for at least 30 hours of credit by the board within the 2 calendar years preceding the calendar year for which the registration is effective.

448.13(1)(a)2. 2. Professional development and maintenance of certification or performance improvement or continuing medical education programs or courses of study required by the board by rule under s. 448.40 (1) and completed within the 2 calendar years preceding the calendar year for which the registration is effective.

448.13(1)(b) (b) The board may waive any of the requirements under par. (a) if it finds that exceptional circumstances such as prolonged illness, disability or other similar circumstances have prevented a physician from meeting the requirements.

448.13(1m) (1m) The board shall, on a random basis, verify the accuracy of proof submitted by physicians under sub. (1) (a) and may, at any time during the 2 calendar years specified in sub. (1) (a), require a physician to submit proof of any continuing education, professional development, and maintenance of certification or performance improvement or continuing medical education programs or courses of study that he or she has attended and completed at that time during the 2 calendar years.

448.13(2) (2) Each person licensed as a perfusionist shall include with his or her application for a certificate of registration under s. 448.07 proof of completion of continuing education requirements promulgated by rule by the board.

448.13(3) (3) Each person licensed as an anesthesiologist assistant shall include with his or her application for a certificate of registration under s. 448.07 proof of meeting the criteria for recertification by the National Commission on Certification of Anesthesiologist Assistants or by a successor entity, including any continuing education requirements.

448.13 History History: 1977 c. 131, 418; 1987 a. 399; 1995 a. 245; 1997 a. 175, 311; 1999 a. 180; 2001 a. 89; 2009 a. 382; 2011 a. 160; 2017 a. 329.

448.13 Cross-reference Cross-reference: See also Med, Wis. adm. code.

448.14 448.14 Annual report. Annually, no later than March 1, the board shall submit to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3) a report that identifies the average length of time to process a disciplinary case against a physician during the preceding year and the number of disciplinary cases involving physicians pending before the board on December 31 of the preceding year.

448.14 History History: 1997 a. 311.

448.22 448.22 Anesthesiologist assistants.

448.22(1) (1) In this section, “supervision” means the use of the powers of direction and decision to coordinate, direct, and inspect the accomplishments of another, and to oversee the implementation of the anesthesiologist’s intentions.

448.22(2) (2) An anesthesiologist assistant may assist an anesthesiologist in the delivery of medical care only under the supervision of an anesthesiologist and only as described in a supervision agreement between the anesthesiologist assistant and an anesthesiologist who represents the anesthesiologist assistant’s employer. The supervising anesthesiologist shall be immediately available in the same physical location or facility in which the anesthesiologist assistant assists in the delivery of medical care such that the supervising anesthesiologist is able to intervene if needed.

448.22(3) (3) A supervision agreement under sub. (2) shall do all of the following:

448.22(3)(a) (a) Describe the supervising anesthesiologist.

448.22(3)(b) (b) Define the practice of the anesthesiologist assistant consistent with subs. (2), (4), and (5).

448.22(4) (4) An anesthesiologist assistant’s practice may not exceed his or her education and training, the scope of practice of the supervising anesthesiologist, and the practice outlined in the anesthesiologist assistant supervision agreement. A medical care task assigned by the supervising anesthesiologist to the anesthesiologist assistant may not be delegated by the anesthesiologist assistant to another person.

448.22(5) (5) An anesthesiologist assistant may assist only the supervising anesthesiologist in the delivery of medical care and may perform only the following medical care tasks as assigned by the supervising anesthesiologist:

448.22(5)(a) (a) Developing and implementing an anesthesia care plan for a patient.

448.22(5)(b) (b) Obtaining a comprehensive patient history and performing relevant elements of a physical exam.

448.22(5)(c) (c) Pretesting and calibrating anesthesia delivery systems and obtaining and interpreting information from the systems and from monitors.

448.22(5)(d) (d) Implementing medically accepted monitoring techniques.

448.22(5)(e) (e) Establishing basic and advanced airway interventions, including intubation of the trachea and performing ventilatory support.

448.22(5)(f) (f) Administering intermittent vasoactive drugs and starting and adjusting vasoactive infusions.

448.22(5)(g) (g) Administering anesthetic drugs, adjuvant drugs, and accessory drugs.

448.22(5)(h) (h) Implementing spinal, epidural, and regional anesthetic procedures.

448.22(5)(i) (i) Administering blood, blood products, and supportive fluids.

448.22(5)(j) (j) Assisting a cardiopulmonary resuscitation team in response to a life threatening situation.

448.22(5)(k) (k) Participating in administrative, research, and clinical teaching activities specified in the supervision agreement.

448.22(5)(L) (L) Supervising student anesthesiologist assistants.

448.22(6) (6) An anesthesiologist who represents an anesthesiologist assistant’s employer shall review a supervision agreement with the anesthesiologist assistant at least annually. The supervision agreement shall be available for inspection at the location where the anesthesiologist assistant practices. The supervision agreement may limit the practice of an anesthesiologist assistant to less than the full scope of practice authorized under sub. (5).

448.22(7) (7) An anesthesiologist assistant shall be employed by a health care provider, as defined in s. 655.001 (8), that is operated in this state for the primary purpose of providing the medical services of physicians or that is an entity described in s. 655.002 (1) (g), (h), or (i). If an anesthesiologist assistant’s employer is not an anesthesiologist, the employer shall provide for, and not interfere with, an anesthesiologist’s supervision of the anesthesiologist assistant.

448.22(8) (8) A student in an anesthesiologist assistant training program may assist only an anesthesiologist in the delivery of medical care and may perform only medical care tasks assigned by the anesthesiologist. An anesthesiologist may delegate the supervision of a student in an anesthesiologist assistant training program to only a qualified anesthesiologist, an anesthesiology fellow, an anesthesiology resident who has completed his or her first year of residency, or an anesthesiologist assistant, but in no case may an anesthesiologist concurrently supervise, either directly or as a delegated act, more than 2 students in training to be an anesthesiologist assistant. This section shall not be interpreted to limit the number of other qualified anesthesia providers an anesthesiologist may supervise. A student in an anesthesiologist assistant training program shall be identified as a student anesthesiologist assistant or an anesthesiologist assistant student and may not be identified as an “intern,” “resident,” or “fellow.”

448.22 History History: 2011 a. 160.

448.23 448.23 Council on anesthesiologist assistants. The council on anesthesiologist assistants shall guide, advise, and make recommendations to the board regarding the scope of anesthesiologist assistant practice and promote the safe and competent practice of anesthesiologist assistants in the delivery of health care services.

448.23 History History: 2011 a. 160.

448.30 448.30 Informed consent. 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. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician’s duty to inform the patient under this section does not require disclosure of:

448.30(2) (2) Detailed technical information that in all probability a patient would not understand.

448.30(3) (3) Risks apparent or known to the patient.

448.30(4) (4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.

448.30(5) (5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.

448.30(6) (6) Information in cases where the patient is incapable of consenting.

448.30(7) (7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.

448.30 History History: 1981 c. 375; 2013 a. 111.

448.30 Cross-reference Cross-reference: See also ch. Med 18, Wis. adm. code.

448.30 Annotation A one to three in 100 chance of a condition’s existence is not an “extremely remote possibility” under sub. (4) when very serious consequences could result if the condition is present. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995).

448.30 Annotation A doctor has a duty under this section to advise of alternative modes of diagnosis as well as of alternative modes of treatment for diagnosed conditions. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995).

448.30 Annotation What constitutes informed consent under former s. 448.30, 1993 stats., emanates from what a reasonable person in the patient’s position would want to know. What a physician must disclose is contingent on what a reasonable person would need to know to make an informed decision. When different physicians have substantially different success rates with a procedure and a reasonable person would consider that information material, a court may admit statistical evidence of the relative risk. Johnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996), 93-3099.

448.30 Annotation A hospital does not have the duty to ensure that a patient has given informed consent to a procedure performed by an independent physician. Mathias v. St. Catherine’s Hospital, Inc., 212 Wis. 2d 540, 569 N.W.2d 330 (Ct. App. 1997), 96-1632. But see Hubbard v. Neuman, 2024 WI App 22, 411 Wis. 2d 586, 5 N.W.3d 852, 23-0255.

448.30 Annotation The onset of a procedure does not categorically foreclose withdrawal of a patient’s consent. Withdrawal of consent removes the doctor’s authority to continue and obligates the doctor to conduct another informed consent discussion. In this type of informed consent case in which the issue is not whether the patient was given the pertinent information so that the patient’s choice was informed, but rather whether the patient was given an opportunity to make a choice after having all of the pertinent information, the cause question is, “What did the patient himself or herself want?” Schreiber v. Physicians Insurance Co. of Wisconsin, 223 Wis. 2d 417, 588 N.W.2d 26 (1999), 96-3676.

448.30 Annotation As a general rule, patients have a duty to exercise ordinary care for their own health. Under limited, enumerated circumstances, contributory negligence may be a defense in an informed consent case. A doctor is not restricted to only the defenses listed under this section, but a court should be cautious in giving instructions on nonstatutory defenses. Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999), 97-2181.

448.30 Annotation In the absence of a persistent vegetative state, the right of a parent to withhold life-sustaining treatment from a child does not exist, and the need for informed consent is not triggered when life-sustaining treatment is performed. Montalvo v. Borkovec, 2002 WI App 147, 256 Wis. 2d 472, 647 N.W.2d 413, 01-1933.

448.30 Annotation A patient’s consent to treatment is not categorically immutable once it has been given. A physician must initiate a new informed consent discussion when there is a substantial change in circumstances, be it medical or legal. Here, the decedent’s postoperative complications did not at some point become a substantial change in medical circumstances necessitating a second informed consent discussion because it was undisputed that the decedent was informed of the risks the decedent later faced. Hageny v. Bodensteiner, 2009 WI App 10, 316 Wis. 2d 240, 762 N.W.2d 452, 08-0133.

448.30 Annotation Former s. 448.30, 2007 stats., requires any physician who treats a patient to inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments. Although the jury determined a physician was not negligent in the physician’s standard of care for failing to employ an alternative when treating the defendant, that did not relieve the physician of the duty to inform the patient about the availability of all alternate, viable medical modes of treatment. Bubb v. Brusky, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903, 07-0619.

448.30 Annotation Neither case law nor former s. 488.30, 2011 stats., limits a physician’s duty to inform a patient of modes of treatment only for the final diagnosis. The distinction between conditions “related” to the final diagnosis and conditions “unrelated” to the final diagnosis finds no support in the statute or case law. A physician’s duty is to inform a patient about diagnostic procedures about which a reasonable patient would want to know to make an informed, voluntary decision about the patient’s medical care, even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis. Jandre v. Wisconsin Injured Patients & Families Compensation Fund, 2012 WI 39, 340 Wis. 2d 31, 813 N.W.2d 627, 08-1972.

448.30 Annotation This section does not create a duty or liability on the part of individuals other than a patient’s treating physician to ascertain whether the patient is capable of providing informed consent. Well-established Wisconsin law provides that the treating physician—not the hospital—bears the duty of advising a patient of a treatment’s risks and ensuring that the patient provides informed consent. That duty is codified in this section. Wetterling v. Southard, 2023 WI App 51, 409 Wis. 2d 434, 997 N.W.2d 115, 21-1694.

448.30 Annotation When considered in the context of this section, the word “inform” means more than a physician merely reciting the relevant information; rather, the physician must actually convey the information in a manner such that the patient can understand it and use it to make an informed decision. It follows that a physician has an inherent responsibility under this section to assess whether the patient understands the provided information and whether the patient is capable of using that information to intelligently exercise the right to consent to a treatment. Wetterling v. Southard, 2023 WI App 51, 409 Wis. 2d 434, 997 N.W.2d 115, 21-1694.

448.30 Annotation Like other medical malpractice claims, an informed consent claim under this section requires proof of the four elements of negligence: 1) a duty of care on the part of the physician; 2) a breach of that duty; 3) a causal connection between the breach and the injury; and 4) an actual loss or damage as a result of the injury. Hubbard v. Neuman, 2024 WI App 22, 411 Wis. 2d 586, 5 N.W.3d 852, 23-0255.

448.30 Annotation Although the word “treats” is not defined in this section or this chapter, the ordinary meaning of the word applies to a physician’s provision of care to a patient and to the physician’s attempts to cure the patient, not just to the physician’s performance of a particular surgery or procedure. 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, and the risks and benefits of each. Hubbard v. Neuman, 2024 WI App 22, 411 Wis. 2d 586, 5 N.W.3d 852, 23-0255.

448.30 Annotation The doctrine of informed consent is limited to apprising a patient of risks that inhere to proposed treatments. It does not impose a duty to apprise the patient of any knowledge the doctor may have regarding the condition of the patient or of all possible methods of diagnosis. McGeshick v. Choucair, 9 F.3d 1229 (1993).

448.40 448.40 Rules.

448.40(1) (1) The board may promulgate rules to carry out the purposes of this subchapter, including rules requiring the completion of continuing education, professional development, and maintenance of certification or performance improvement or continuing medical education programs for renewal of a license to practice medicine and surgery.

448.40(1m) (1m) The board may promulgate rules to establish minimum standards for military medical personnel, as defined in s. 440.077 (1) (d), who perform skilled health services, as defined in s. 440.077 (1) (h), that are supervised under s. 440.077.

448.40(2) (2) The board shall promulgate all of the following rules:

448.40(2)(a) (a) Implementing s. 448.30.

448.40(2)(b) (b) Establishing the scope of the practice of perfusion. In promulgating rules under this paragraph, the board shall consult with the perfusionists examining council.

448.40(2)(c) (c) Establishing continuing education requirements for renewal of a license to practice perfusion under s. 448.13 (2). In promulgating rules under this paragraph, the board shall consult with the perfusionists examining council.

448.40(2)(e) (e) Establishing the criteria for the substitution of uncompensated hours of professional assistance volunteered to the department of health services for some or all of the hours of continuing education credits required under s. 448.13 (1) (a) 1. for physicians specializing in psychiatry. The eligible substitution hours shall involve professional evaluation of community programs for the certification and recertification of community mental health programs, as defined in s. 51.01 (3n), by the department of health services.

448.40(2)(g) (g) Establishing procedures for issuing and using administrative warnings under s. 448.02 (8).

448.40(3) (3) The board may promulgate rules defining “substantially similar” under s. 448.05 (2m).

Effective date note NOTE: Sub. (3) is created eff. 1-1-25 by 2023 Wis. Act 214.