A Dane County jury awarded an Oregon woman and her husband $435,000 — reduced to $300,000 because of a state cap — after finding a doctor at UnityPoint Health-Meriter failed to disclose information about a procedure after the birth of the couple’s son, causing injuries that led to a hysterectomy and loss of fertility.
The verdict is unusual because the jury said Dr. Jay Lick’s failure to disclose information was a cause of the woman’s injuries, even though the jury said Lick’s care was not negligent.
Such verdicts could be less likely in the future because a bill signed by then-Gov. Scott Walker in 2013, shortly after the incidents involved in Lick’s case, made the state’s informed consent law more favorable to doctors.
The case involves Melanie and Matthew Dart, whose second son was delivered by Cesarean section at Meriter in 2013, according to a lawsuit. Two months later, after placental tissue was discovered in Melanie Dart’s uterus remaining from the birth, Lick performed a procedure to remove the tissue.
Lick, who works for UW-Madison, did the procedure “blind,” without a scope or ultrasound for visual guidance, the suit claims. Three months later, Dart needed the procedure again, and a different doctor did it using a scope. That doctor said Dart’s uterus was perforated during Lick’s procedure, the suit says.
After continuing problems, Dart, 43, a scientist at Promega Corp., had a hysterectomy in 2015. She and her husband were unsure in 2013 whether they wanted to try to have more children but later decided they did and were disappointed they couldn’t, their attorney Brian Brophy said.
Lick didn’t inform Dart that the procedure, known as dilation and curettage, could be performed with a scope or ultrasound, the suit says. If she had been informed, “she would have insisted on the visually guided procedure,” the suit says.
The jury said Lick’s failure to tell Dart about the visual guidance option was a cause of her injuries.
“This kind of a verdict gives the jury the opportunity to say, ‘We’re not going to find that you’re negligent in that you got a bad result, but you certainly could have avoided that bad result had you properly given, in this case, Melanie Dart, the opportunity to have a guided procedure,’” Brophy said.
Dr. Laurel Rice, chair of obstetrics and gynecology at UW-Madison, said in a statement: “We appreciate the difficulty that the patient and her family experienced in this case. At the same time, we believe that the care provided by Dr. Lick was appropriate, and he remains a valuable member of our faculty.”
The state Department of Safety and Professional Services, which licenses doctors, is investigating a complaint against Lick from 2016, the same year the Darts’ lawsuit was filed against him, meaning it likely involves the same case.
Wisconsin’s informed consent law became more favorable to doctors when Walker updated the law to say doctors must disclose information that a “reasonable physician” would provide, not what a “reasonable patient” would want to know.
A state Supreme Court ruling in 2012 had found a doctor negligent for failing to offer a stroke test to a patient who later had a stroke, a condition the doctor had ruled out.
Under the updated law, it could be less likely for juries to rule as they did in Lick’s case, Brophy said.
The jury award, made in April, was reduced last month to $300,000 because Lick, who works at Meriter and UW Health, is employed by UW-Madison.
State law limits damages against UW doctors to $250,000 per plaintiff because the doctors are considered state employees. Such caps stem from the concept of government immunity, which arose in the 1870s to protect taxpayers and governments.
Melanie Dart’s damages of $385,000 — for medical expenses, lost wages, pain, suffering and disability — were reduced to $250,000. Matthew Dart received $50,000 for deprivation of the benefits of a family relationship.
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