In a case in which firm attorneys James Gutglass and Jason Prekop defended a defendant obstetrician and hospital in the trial court and Mr. Gutglass successfully argued the case before the Wisconsin Supreme Court, a unanimous state supreme court recently decided in favor of the firm’s clients in Barney v. Mickelson, 2020 WI 40, 391 Wis. 2d 212, 942 N.W.2d 891. In Barney, the court held that the firm’s request of the trial court to present the alternative methods paragraph of the Wisconsin medical malpractice jury instruction to the jury, and the trial court’s grant of that request, was proper based on standard of care expert opinions in support of alternative methods of diagnosis presented at trial. The alternative methods paragraph provides that if more than one method of diagnosing the plaintiff’s injuries was recognized as reasonable given the state of medical knowledge at that time, then the physician was at liberty to select any of the recognized methods.

The supreme court has reaffirmed the importance of a trial court to submit the alternative methods paragraph to the jury when expert testimony supports it, thus permitting the jury to assess the weight and credibility of competing medical experts. The court succinctly concluded what the defense had been arguing: “Any dispute in testimony regarding the complex medical issues in this case was for the jury, not the court of appeals or this court, to weigh and ultimately resolve.”

The case facts. In Barney, the plaintiffs argued the obstetrician was negligent in failing to switch to a more accurate method of monitoring an infant’s fetal heart rate during the mother’s labor. The plaintiffs’ standard of care expert contended that because the obstetrician used an external monitor on the mother’s abdomen, the obstetrician did not recognize signs the infant’s oxygenation status was depleting. The plaintiffs’ standard of care expert contended the obstetrician should have switched to a pulse oximeter or a fetal scalp electrode to trace the fetal heart rate.

The standard of care experts retained by the defense, however, opined the external monitor was accurately monitoring the infant’s fetal heart rate, and it was reasonable to use the external monitor. The jury found the obstetrician not negligent in her care and treatment. The court of appeals reversed the jury’s verdict, ignoring the defense expert testimony and concluding the obstetrician’s reliance on the external monitor was not an acceptable diagnostic technique and amounted to “doing nothing,” a phrase used in an appellate case.

The supreme court reversed the court of appeals, upholding the trial court’s decision to present the alternative methods paragraph to the jury. The court noted the parties’ standard of care experts disputed whether the external monitor was continuously and accurately measuring the infant’s heart rate in the last 90 minutes of labor and whether the obstetrician’s use of the external monitor continued to be a reasonable alternative method. As a result, the supreme court stated the court of appeals ignored the testimony of defense experts opining about the alternative methods. The supreme court concluded a jury could find the obstetrician’s choice to continue with the external monitor was a reasonable alternative of monitoring the infant’s fetal heart rate and was not analogous to “doing nothing,” distinguishing this case from a previous appellate decision, and there was ample evidence in the record to support the trial court’s decision to present the alternative methods paragraph to the jury.

We welcome the opportunity to further discuss this case or any other area of medical negligence law with readers. This legal update is intended for general information purposes for the community and highlights changes and developments in the legal area. This publication does not constitute legal advice, and readers should consult legal counsel to determine how this information applies to any specific situation.