One of the challenges of surgery is that an anesthetized patient cannot consent to additional procedures a surgeon feels may be necessary after the first incision. But that doesn't necessarily mean that the surgeon needs to stop and wait for another day, according to a Wisconsin court ruling.

The Court of Appeals of Wisconsin ruled last month that orthopedic surgeon Shawn Hennigan, MD, and his employer, BayCare Clinic in Green Bay, were not negligent when Dr. Hennigan performed an unplanned surgical capsular release on a patient's shoulder in 2006.

The patient, Mary Jo Brooks of De Pere, Wis., was diagnosed with impingement syndrome, a rotator cuff tear and acromioclavicular joint arthritis. Ms. Brooks consented to surgery with Dr. Hennigan to treat those conditions at BayCare Clinic. However, once Ms. Brooks was anesthetized, Dr. Hennigan performed a physical exam and discovered that she also had a frozen shoulder. So he performed an arthroscopic capsular release as well, according to court documents.

After surgery, Ms. Brooks claimed that her shoulder pain worsened and she couldn't return to work. Eventually, another surgeon had to perform 2 more capsular release procedures. Ms. Brooks and her lawyer alleged Dr. Hennigan and BayCare were negligent because she never consented to the capsular release procedure for the frozen shoulder, according to court documents.

A trial jury disagreed, finding that Dr. Hennigan and the clinic were not negligent. Ms. Brooks and her lawyer then asked for a new trial, which was denied by the trial court and then by the appeals court on March 31.

Ms. Brooks and her lawyer, David Skoglind, argued that Dr. Hennigan should have stopped the procedure once he diagnosed the frozen shoulder so that she could learn about the treatment options available to her. "He had the diagnosis before he did anything invasive," Mr. Skoglind told Outpatient Surgery Magazine. "Without letting her know, he chose to go forward."

BayCare Clinic's lawyer declined to comment, and Dr. Hennigan did not respond to a request for comment for this article.

In their opinion, the 3 appeals judges cited Wisconsin law, which defines how much a physician needs to disclose to a patient in informed consent discussions and documents. A physician has a duty to inform the patient of treatment options and risks, but is not required to disclose:

1. Information beyond what a reasonably well-qualified physician in a similar medical classification would know.

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

3. Risks apparent or known to the patient.

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

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

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

The consent form covered the capsular release, although Dr. Hennigan didn't diagnose the frozen shoulder until after Ms. Brooks had been anesthetized, wrote the judges. "Dr. Hennigan had the discussion with Brooks on the procedures identified in [the consent] form, and [the consent] form authorizes him to perform these procedures, as well as additional ones as described in the 'unforeseen circumstances' paragraph."

Mr. Skolind said that he and Ms. Brooks are considering appealing the ruling to the Wisconsin Supreme Court. "We're completely disappointed," he said.

Kent Steinriede