2011 - 2012 LEGISLATURE
ASSEMBLY AMENDMENT 3,
TO 2011 SENATE BILL 306
March 13, 2012 - Offered by Representatives Pocan, Berceau, Sinicki,
Pope-Roberts, Hebl, Turner and C. Taylor.
146.39 of the statutes is created to read:
6146.39 Voluntary and informed consent; prescription of erectile
7dysfunction medications. (1) Definitions.
In this section:
(a) "Qualified person assisting the physician" means a social worker certified 9
under ch. 457, a registered nurse, or a physician assistant to whom a physician who 10
is to prescribe a medication to treat erectile dysfunction has delegated the 11
responsibility, as the physician's agent, for providing the information required under 12
sub. (2) (c) 2.
(b) "Qualified physician" means a physician who by training or experience is 2
qualified to provide the information required under sub. (2) (c) 1.
3(2) Voluntary and informed consent.
Medications to treat 4
erectile dysfunction may not be prescribed or given unless the man who is to receive 5
the medications has given voluntary and informed written consent under the 6
requirements of this section.
(b) Voluntary consent.
Consent under this section to erectile dysfunction 8
medications is voluntary only if the consent is given freely and without coercion by 9
any person. The physician who is to prescribe or give the erectile dysfunction 10
medications shall determine whether the individual's consent is, in fact, voluntary. 11
Notwithstanding par. (c) 3., the physician shall make the determination by speaking 12
to the individual in person, out of the presence of anyone other than a person working 13
for or with the physician. If the physician has reason to suspect that the individual 14
is in danger of being physically harmed by anyone who is coercing the individual to 15
consent to erectile dysfunction medications against his will, the physician shall 16
inform the individual of services for victims or individuals at risk of domestic abuse 17
and provide him with private access to a telephone.
(c) Informed consent.
An individual's consent to receive erectile dysfunction 19
medications is informed only if all of the following first take place:
1. At least 24 hours before the erectile dysfunction medication is to be given, 21
the physician who prescribes or gives the erectile dysfunction medication or any 22
other qualified physician has, in person, orally informed the individual of all of the 23
a. Whether or not, according to the reasonable medical judgment of the 25
physician, the individual is a candidate for erectile dysfunction medication.
b. The probable condition of the man's body and sexual organs at the time that 2
the information is provided. The physician or other qualified physician shall also 3
provide this information to the individual in writing at this time.
c. The particular medical risks, if any, associated with the man's sexual 5
d. The probable anatomical and physiological characteristics of the man's 7
e. The details of the medical method that would be used to treat the erectile 9
f. The medical risks associated with the particular erectile dysfunction 11
medication that would be used.
g. The recommended general medical instructions for the individual to follow 13
after taking erectile dysfunction medications to enhance his safe recovery and the 14
name and telephone number of a physician to call if complications arise after taking 15
an erectile dysfunction medication.
h. That the individual has a right to refuse to consent to erectile dysfunction 17
medications, that his consent is not voluntary if anyone is coercing him to consent 18
to taking erectile dysfunction medications against his will, and that it is unlawful for 19
the physician to prescribe or give erectile dysfunction medications without his 20
i. That the individual may withdraw his consent to take erectile dysfunction 22
medications at any time.
j. That the individual is not required to pay any amount for erectile dysfunction 24
medications until at least 24 hours have elapsed after the requirements of this 25
paragraph are met.
k. That the man must return to the facility for a follow-up visit 12 to 18 days 2
after the use of an erectile dysfunction medication to confirm the efficacy of the 3
medication and evaluate the man's medical condition.
2. At least 24 hours before prescribing or giving the erectile dysfunction 5
medication, the physician who is to prescribe or give the medication, a qualified 6
person assisting the physician, or another qualified physician has, in person, done 7
all of the following:
a. Orally informed the man that he has the right to receive and review the 9
printed materials described in par. (d). The physician or qualified person assisting 10
the physician shall physically give the materials to the individual and shall, in 11
person, orally inform him that the materials are free of charge and have been 12
provided by the state and shall provide him with the current updated copies of the 13
printed materials free of charge.
b. Orally informed the man that the printed materials described in par. (d) 15
contain information on services available for victims or individuals at risk of 16
c. Orally inform the man that the printed materials described in par. (d) contain 18
information on the availability of public and private agencies and services to provide 19
the individual with information on erectile dysfunction.
d. Shown the man a video, developed by the department, depicting erectile 21
dysfunction, the risks of taking erectile dysfunction medications, and alternative 22
treatments for erectile dysfunction.
3. The information that is required under subds. 1. and 2. is provided to the 24
individual in an individual setting that protects his privacy, maintains the 25
confidentiality of his decision, and ensures that the information he receives focuses
on his individual circumstances. This subdivision may not be construed to prevent 2
the individual from having a family member, or any other person of his choice, 3
present during his private counseling.
4. Whoever provides the information that is required under subd. 1. or 2., or 5
both, provides adequate opportunity for the man to ask questions and provides the 6
information that is requested or indicates to the man where he can obtain the 7
5. The individual certifies in writing on a form that the department shall 9
provide, prior to prescription or giving of erectile dysfunction medications, that the 10
information that is required under subds. 1. and 2. has been provided to him in the 11
manner specified in subd. 3., that he has been offered the information described in 12
par. (d), and that all of his questions, as specified under subd. 4., have been answered 13
in a satisfactory manner. The physician who is to prescribe or give the erectile 14
dysfunction medications or the qualified person assisting the physician shall write 15
on the certification form the name of the physician who is to prescribe or give the 16
erectile dysfunction medications. The individual shall indicate on the certification 17
form who provided the information to him or her and when it was provided.
6. Prior to the prescription or giving of erectile dysfunction medications, the 19
physician who is to prescribe or give the medications or the qualified person assisting 20
the physician receives the written certification that is required under subd. 5. The 21
physician or qualified person assisting the physician shall place the certification in 22
the individual's medical record and shall provide the individual with a copy of the 23
7. If the individual considering erectile dysfunction medications is a minor, the 25
requirements to provide information to the minor under subds. 1. to 6. apply also to
require provision of the information to the individual whose consent is required. If 2
the individual considering erectile dysfunction medications is an individual 3
adjudicated incompetent in this state, the requirements to provide information to the 4
individual under subds. 1. to 6. apply to also require provision of the information to 5
the person appointed as the individual's guardian.
(d) Printed information.
By the date that is 60 days after May 1, 2012, the 7
department shall cause to be published in English, Spanish, and other languages 8
spoken by a significant number of state residents, as determined by the department, 9
materials that are in an easily comprehensible format and are printed in type of not 10
less than 12-point size. The department shall distribute a reasonably adequate 11
number of the materials to county departments under s. 46.215, 46.22, or 46.23 and, 12
upon request, shall annually review the materials for accuracy and shall exercise 13
reasonable diligence in providing materials that are accurate and current. The 14
materials shall be all of the following:
1. Geographically indexed materials that are designed to inform an individual 16
about public and private agencies and services that are available to provide 17
information on erectile dysfunction and provide imaging services. The materials 18
shall include a comprehensive list of the agencies available, a description of the 19
services that they offer and a description of the manner in which they may be 20
contacted, including telephone numbers and addresses, or, at the option of the 21
department, the materials shall include a toll-free, 24-hour telephone number that 22
may be called to obtain an oral listing of available agencies and services in the locality 23
of the caller and a description of the services that the agencies offer and the manner 24
in which they may be contacted. The materials shall provide information on the 25
availability of governmentally funded programs that serve individuals with erectile
dysfunction. Services identified for the individual shall include Medical Assistance. 2
The materials shall state that it is unlawful to prescribe or give erectile dysfunction 3
medications for which consent has been coerced and that any physician who 4
prescribes or gives erectile dysfunction medication without obtaining the 5
individual's voluntary and informed consent is liable to him for damages in a civil 6
action and is subject to a civil penalty. The materials shall state that imaging 7
services may be obtainable by individuals with erectile dysfunction and individuals 8
who wish to use them and shall describe the services. The materials shall include 9
information on services in the state that are available for victims or individuals at 10
risk of domestic abuse.
2. Materials, including videos, photographs, pictures, or drawings, that are 12
designed to show erectile dysfunction and treatments for erectile dysfunction. The 13
pictures, drawings, and videos must be realistic and appropriate for the stage of 14
erectile dysfunction depicted. The materials shall be objective, nonjudgmental and 15
designed to convey only accurate scientific information about erectile dysfunction at 16
the various stages. The materials shall also contain objective, accurate information 17
describing the methods of erectile dysfunction treatments commonly employed, and 18
the medical and psychological risks commonly associated with each such procedure.
3. A certification form for use under par. (c) 5. that lists, in a check-off format, 20
all of the information required to be provided under that subdivision.
(e) Requirement to obtain materials.
A physician who intends to prescribe 22
erectile dysfunction medication or another qualified physician, who reasonably 23
believes that he or she might have a patient for whom the information under par. (d) 24
is required to be given, shall request a reasonably adequate number of the materials
that are described under par. (d) from the department under par. (d) or from a county 2
department under s. 46.215, 46.22, or 46.23.
Satisfaction of the conditions required under par. (c) creates 4
a rebuttable presumption that the individual's consent and, if the individual is a 5
minor, the consent of the individual who also gives consent, to an erectile dysfunction 6
medication is informed. The presumption of informed consent may be overcome by 7
a preponderance of evidence that establishes that the consent was obtained through 8
fraud, negligence, deception, misrepresentation or omission of a material fact. There 9
is no presumption that consent to erectile dysfunction medication is voluntary.
Any person who violates sub. (2) shall be required to forfeit not 11
less than $1,000 nor more than $10,000. No penalty may be assessed against the 12
man who is prescribed or who receives erectile dysfunction medication.
13(4) Civil remedies.
(a) A person who violates sub. (2) is liable to the man for 14
whom the erectile dysfunction medication was prescribed or to whom the erectile 15
dysfunction medication was given for damages arising out of the prescription or 16
giving of erectile dysfunction medication, including damages for personal injury and 17
emotional and psychological distress.
(b) A person who has been awarded damages under par. (a) shall, in addition 19
to any damages awarded under par. (a), be entitled to not less than $1,000 nor more 20
than $10,000 in punitive damages for a violation that satisfies a standard under s. 21
(c) A conviction under sub. (3) is not a condition precedent to bringing an action, 23
obtaining a judgment, or collecting the judgment under this subsection.
(d) Notwithstanding s. 814.04 (1), a person who recovers damages under par. 2
(a) or (b) may also recover reasonable attorney fees incurred in connection with the 3
(e) A contract is not a defense to an action under this subsection.
(f) Nothing in this subsection limits the common law rights of a person that are 6
not in conflict with sub. (2).
7(5) Affirmative defense.
No person is liable under sub. (3) or (4) or under s. 8
441.07 (1) (f), 448.02 (3) (a), or 457.26 (2) (gm) for failure under sub. (2) (c) 2. to provide 9
the printed materials described in sub. (2) (d) to an individual or for failure under 10
sub. (2) (c) 2. to describe the contents of the printed materials if the person has made 11
a reasonably diligent effort to obtain the printed materials under sub. (2) (e) and the 12
department and the county department under s. 46.215, 46.22, or 46.23 have not 13
made the printed materials available at the time that the person is required to give 14
them to the individual.