The medical team made the decision to perform an oophorectomy on a patient without her prior knowledge.

In February 2018, Melissa Hubbard had surgery to excise a section of her colon. However, she was unaware until after the procedure that her ovaries had also been removed.

Hubbard's gynecologist had advised her surgeon to remove her ovaries as a solution for another painful issue Hubbard was experiencing. Although the gynecologist had mentioned the possibility of ovary surgery to Hubbard before, she felt unprepared to proceed with it. Unbeknownst to her, the gynecologist had already recommended the surgery to the surgeon performing her colon operation.

On Tuesday, the Wisconsin Supreme Court will hear oral arguments in a lawsuit that Hubbard has filed against the gynecologist, Dr. Carol Neuman. The lawsuit argues that Neuman’s recommendation to the surgeon without Hubbard’s knowledge was an act of medical negligence.

The legal action that Hubbard initiated against Neuman has not yet proceeded to trial. The Ob/Gyn physician, represented by her legal team, contends that the case should be resolved through a summary judgment dismissal.

The legal case — along with the physician's attempt to dismiss it — centers on Wisconsin's legislation that mandates informed consent from patients prior to receiving medical treatment.

Neuman's attorneys contend that the physician bore no legal obligation regarding Hubbard's surgery according to the law, nor did she have a responsibility to inform Hubbard about what was simply Neuman's suggestion to the surgeon, as Neuman did not carry out the procedure herself.

A circuit judge in Rock County opposed the arguments presented by the doctor’s legal team and denied their motion for summary judgment. The 4th District Wisconsin Court of Appeals confirmed the circuit court's decision to keep the case active. In response, Neuman’s attorneys have petitioned the state Supreme Court to overturn these rulings.

In a ruling issued in March 2024 by a three-judge panel of the District 4 appeals court, Judge Chris Taylor stated that “the obligation to inform a patient regarding ‘the availability of reasonable alternative medical treatments, along with the associated benefits and risks of these options’ is applicable to all physicians treating a patient, irrespective of whether they personally administer the treatment alternatives discussed.”

According to the appeals court’s summary of the case, in 2018 Hubbard was in Neuman’s care for treatment of endometriosis — a condition in which the same sort of tissue that lines the inside of the uterus also grows outside the uterus. Endometriosis can cause pain as well as infertility, according to the Mayo Clinic.

In a medical record referenced in the initial lawsuit, Neuman indicated that she advised Hubbard to think about the possibility of having at least her left fallopian tube and ovary removed, or possibly both tubes and ovaries.

These procedures would render Hubbard infertile; however, Neuman noted in her clinical documentation, “I suspect her endometriosis is quite advanced, and she may require assistance from reproductive specialists. She is hesitant to pursue this route as her insurance does not provide coverage for it.”

According to the lawsuit, Hubbard did not consent to the removal of her reproductive organs.

Neuman also directed Hubbard to a surgeon for an additional operation: the extraction of a portion of her colon, stemming from concerns regarding cancer, as stated by Hubbard’s attorney, Guy Fish from Milton.

Prior to the colon surgery, the doctor suggested to the surgeon that he might consider removing Hubbard’s ovaries during the same procedure.

According to Hubbard's lawsuit, "Hubbard did not inform Neuman at any point before her surgery on February 13, 2018, that she had chosen to have one or more ovaries surgically removed" during the procedure.

According to the lawsuit, Neuman and Dr. Michael McGauley, the surgeon, "participated in pre-surgery discussions and planning... without involving or informing Hubbard." During their conversations, they outlined a plan where Neuman would extract Hubbard's tubes, ovaries, and uterus, while McGauley would carry out the colon surgery concurrently.

According to the lawsuit, Hubbard was not made aware of those discussions. On the day of the operation, McGauley conducted the colon surgery and personally removed Hubbard's ovaries as well.

The lawsuit claims, "If Hubbard had been informed of Neuman's pre-surgery advice to McGauley, he would have promptly called off the surgery set for February 13, 2018, to explore all available options."

In support of the motion to dismiss the case, Neuman's attorneys contended that a physician's referral to another physician should not fall under the purview of the state's informed consent legislation.

In a brief submitted to the Supreme Court, Neuman's legal representatives from the Corneille Law Group in Madison stated, “A recommendation should not be construed as an order or a directive.” The attorneys contended that failing to inform Hubbard about the recommendation Neuman provided to the surgeon should not be considered a breach of the state's informed consent regulations.

The brief for Neuman states, “Doctors involved in discussing a patient's treatment should be allowed to openly share their thoughts, opinions, recommendations, and guidance without the fear of being held accountable for not informing the patient about the details of those discussions.”

The brief requests that the Supreme Court remand the case to the Rock County circuit court with instructions to dismiss the lawsuit.

However, Hubbard’s attorney contends that promoting transparency, including the sharing of communications between doctors, is beneficial for patients.

“In a brief submitted to the high court, Fish questioned, ‘Isn't it the responsibility of a treating physician to better meet their obligations by sharing more relevant medical information with the patient?’”

The lower court dismissed the claim that making the gynecologist accountable for ensuring informed consent for her advice to the surgeon would inhibit doctors from openly consulting with each other.

In their decision, the judges of the appeals court concentrated on determining if the state law would be inapplicable to Neuman, even if all the factual claims presented in the lawsuit were taken as accurate.

The impact of Neuman's suggestion — the removal of Hubbard's ovaries without her prior consent — was significant enough for the lower court judges to classify Neuman as a "treating physician," despite the fact that she did not carry out the surgical procedure.

In their recommendation to the surgeon, they stated that Neuman arguably should have informed the patient about the potential risks associated with the procedure, the likelihood of success, and any alternative treatment options that could be considered.

In summary, they concluded that Neuman did not successfully argue for the complete dismissal of the case.