Chapter 448

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).

448.40 History History: 1975 c. 383; 1981 c. 375; 1987 a. 399; 1993 a. 445; 1995 a. 27 s. 9126 (19); 1997 a. 67, 175, 311; 1999 a. 32, 180; 2001 a. 89; 2007 a. 20 s. 9121 (6) (a); 2009 a. 382; 2021 a. 23, 158; 2023 a. 214; s. 35.17 correction in (1m).

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

subch. III of ch. 448 SUBCHAPTER III

PHYSICAL THERAPY EXAMINING BOARD

Subch. III of ch. 448 Cross-reference Cross-reference: See also PT, Wis. adm. code.

448.50 448.50 Definitions. In this subchapter:

448.50(1m) (1m) “Business entity” has the meaning given in s. 452.01 (3j).

448.50(1n) (1n) “Compact” means the physical therapy licensure compact under s. 448.985.

448.50(1o) (1o) “Compact privilege” means a compact privilege, as defined in s. 448.985 (2) (d), that is granted under the compact to an individual to practice in this state.

448.50(1r) (1r) “Diagnosis” means a judgment that is made after examining the neuromusculoskeletal system or evaluating or studying its symptoms and that utilizes the techniques and science of physical therapy for the purpose of establishing a plan of therapeutic intervention, but does not include a chiropractic or medical diagnosis.

448.50(1v) (1v) “Examining board” means the physical therapy examining board.

448.50(2) (2) “Licensee” means a person who is licensed under this subchapter.

448.50(3) (3) “Physical therapist” means an individual who has been graduated from a school of physical therapy and holds a license to practice physical therapy granted by the examining board or who holds a physical therapist compact privilege.

448.50(3m) (3m) “Physical therapist assistant” means an individual who holds a license as a physical therapist assistant granted by the examining board or who holds a physical therapist assistant compact privilege.

448.50(4) (4) 

448.50(4)(a) (a) “Physical therapy” means, except as provided in par. (b), any of the following:

448.50(4)(a)1. 1. Examining, evaluating, or testing individuals with mechanical, physiological, or developmental impairments, functional limitations related to physical movement and mobility, disabilities, or other movement-related health conditions, in order to determine a diagnosis, prognosis, or plan of therapeutic intervention or to assess the ongoing effects of intervention. In this subdivision, “testing” means using standardized methods or techniques for gathering data about a patient.

448.50(4)(a)2. 2. Alleviating impairments or functional limitations by instructing patients or designing, implementing, or modifying therapeutic interventions.

448.50(4)(a)3. 3. Reducing the risk of injury, impairment, functional limitation, or disability, including by promoting or maintaining fitness, health, or quality of life in all age populations.

448.50(4)(a)4. 4. Engaging in administration, consultation, or research that is related to any activity specified in subds. 1. to 3.

448.50(4)(b) (b) “Physical therapy” does not include any of the following:

448.50(4)(b)1. 1. Using roentgen rays or radium for any purpose, except that “physical therapy” includes ordering X-rays to be performed by qualified persons, subject to s. 448.56 (7) (a), and using X-ray results to determine a course of care or to determine whether a referral to another health care provider is necessary.

448.50(4)(b)2. 2. Using electricity for surgical purposes, including cauterization.

448.50(4)(b)3. 3. Prescribing drugs or devices.

448.50(5) (5) “Sexual misconduct with a patient” means any of the following:

448.50(5)(a) (a) Engaging in or soliciting a consensual or nonconsensual sexual relationship with a patient.

448.50(5)(b) (b) Making sexual advances toward, requesting sexual favors from, or engaging in other verbal conduct or physical contact of a sexual nature with a patient.

448.50(5)(c) (c) Intentionally viewing a completely or partially disrobed patient during the course of treatment if the viewing is not related to diagnosis or treatment.

448.50(6) (6) “Therapeutic intervention” means the purposeful and skilled interaction between a physical therapist, patient, and, if appropriate, individuals involved in the patient’s care, using physical therapy procedures or techniques that are intended to produce changes in the patient’s condition and that are consistent with diagnosis and prognosis.

448.50 History History: 1993 a. 107; 2001 a. 70; 2009 a. 149; 2015 a. 375; 2019 a. 100.

448.50 Annotation Physical therapists and massage therapists are not prohibited from performing the activities that are within their respective scopes of practice, even if those activities extend in some degree into the field of chiropractic science. OAG 1-01.

448.51 448.51 License required.

448.51(1) (1) Except as provided in s. 448.52, no person may practice physical therapy unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

448.51(1e) (1e) No person may designate himself or herself as a physical therapist or use or assume the title “physical therapist,” “physiotherapist,” “physical therapy technician,” “licensed physical therapist,” “registered physical therapist,” “master of physical therapy,” “master of science in physical therapy,” or “doctorate in physical therapy,” or append to the person’s name the letters “P.T.,” “P.T.T.,” “L.P.T.,” “R.P.T.,” “M.P.T.,” “M.S.P.T.,” or “D.P.T.,” or any other title, letters, or designation that represents or may tend to represent the person as a physical therapist, unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

448.51(1s) (1s) No person may designate himself or herself as a physical therapist assistant, use or assume the title “physical therapist assistant,” or append to the person’s name the letters “P.T.A.” or any other title, letters, or designation that represents or may tend to represent the person as a physical therapist assistant unless the person is licensed as a physical therapist assistant under this subchapter or holds a valid physical therapist assistant compact privilege.

448.51(2) (2) Except as provided in s. 448.52 (2m), no person may claim to render physical therapy or physiotherapy services unless the person is licensed as a physical therapist under this subchapter or holds a valid physical therapist compact privilege.

448.51 History History: 1993 a. 107; 1995 a. 166; 2001 a. 70, 105; 2015 a. 197; 2019 a. 100.

448.51 Cross-reference Cross-reference: See also chs. PT 1, 3, and 4, Wis. adm. code.

448.52 448.52 Applicability.

448.52(1m) (1m) A license is not required under this subchapter for any of the following, if the person does not claim to render physical therapy or physiotherapy services:

448.52(1m)(a) (a) Any person lawfully practicing within the scope of a license, permit, registration or certification granted by this state or the federal government.

448.52(1m)(am) (am) An individual who is exempt from licensure as a physician under s. 448.03 (2m).

448.52(1m)(b) (b) Any person assisting a physical therapist in practice under the direct, on-premises supervision of the physical therapist.

448.52(1m)(c) (c) A physical therapy student or a physical therapist assistant student performing physical therapy procedures and related tasks, if doing so is within the scope of the student’s education or training. The examining board may promulgate rules related to the supervision of students who perform physical therapy procedures and related tasks.

448.52(1m)(d) (d) A physical therapist who is licensed to practice physical therapy in another state or country and is providing a consultation or demonstration with a physical therapist who is licensed under this subchapter.

448.52(2m) (2m) A license is not required under this subchapter for any of the following:

448.52(2m)(a) (a) Except as provided in par. (b), a chiropractor licensed under ch. 446 claiming to render physical therapy, if the physical therapy is provided by a physical therapist employed by the chiropractor.

448.52(2m)(b) (b) A chiropractor licensed under ch. 446 claiming to render physical therapy modality services.

448.52 History History: 1993 a. 107 ss. 51, 52, 59; 1995 a. 166; 2001 a. 70, 105; 2017 a. 341; 2019 a. 138; 2021 a. 238 s. 45.

448.52 Cross-reference Cross-reference: See also ch. PT 5, Wis. adm. code.

448.522 448.522 Manipulation services. A physical therapist may not claim that any manipulation service that he or she provides is in any manner a chiropractic adjustment that is employed to correct a spinal subluxation.

448.522 History History: 2001 a. 70.

448.527 448.527 Code of ethics. The examining board shall promulgate rules establishing a code of ethics governing the professional conduct of physical therapists and physical therapist assistants.

448.527 History History: 2001 a. 70; 2009 a. 149.