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Supreme Court: Proper instruction in alternative methods given in medical-malpractice case

By: Michaela Paukner, [email protected]//April 28, 2020//

Supreme Court: Proper instruction in alternative methods given in medical-malpractice case

By: Michaela Paukner, [email protected]//April 28, 2020//

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The Wisconsin Supreme Court has issued a unanimous decision upholding a jury verdict clearing a Columbia St. Mary’s doctor of medical malpractice.

At the heart of the dispute were questions over whether a Milwaukee County Circuit Court had been acting properly when it read the state’s alternative-methods instruction to jurors. One of the plaintiffs in case is London Barney, a child who was born with severe and permanent neurological injuries. London’s guardian ad litem and his mother, Raquel, filed a medical-malpractice action alleging Dr. Julie Mickelson and her staff had failed, when delivering London, to recognize and respond to the signs of  fetal oxygen deprivation.

During the resulting trial, Mickelson testified that she believed during the delivery that an external monitor she was relying on to record and report London’s heart rate was producing accurate measurements. Her two standard-of-care experts also testified that it was reasonable for her to continue using the external monitor rather than switch to something else.

Over the Barneys’ objection, the circuit court read the jury the alternative-methods instruction, which generally informed the jury that Mickelson should not be negligent if it could be shown she had used reasonable care, skill and judgment in administering any one of the recognized reasonable treatment methods for monitoring London’s heart rate.

The jury found Mickelson not negligent in her care and treatment. Following the verdict, the Barneys filed a motion for a new trial, alleging that the circuit court had erroneously given the alternative-methods instruction. Specifically, they contended the instruction was misleading because Mickelson in fact hadn’t employed one of the recognized alternative methods of treatment. They said Mickelson had actually been “doing nothing” by using the external monitor, which was not a recognized alternative method.

Although the circuit court denied the motion, the Court of Appeals later decided Mickelson’s reliance on the external monitor wasn’t an acceptable alternative-diagnostic technique. The appellate judges reversed the circuit court’s decision and ordered a new trial.

In its ruling, the Supreme Court was unanimous in reversing the Court of Appeals. The justices released an opinion on Friday, reinstating the judgment dismissing the Barneys’ claim against the defendants.

Justice Rebecca Dallet wrote that, according to testimony from Mickelson’s experts, Mickelson’s reliance on the external monitor during the delivery was a reasonable way to assess the baby’s heart rate. Because the use of the device fell within the standard of care, the justices found circuit court had been acting properly when it gave the alternative-methods instruction to the jury.

Dallet said the Court of Appeals had ignored the testimony of Mickelson’s experts to fit the case into the framework of Miller v. Kim, in which an appellate court concluded the alternative-methods instruction was misleading.

“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,” Dallet wrote. “Based on all of the expert testimony presented at trial, the circuit court properly gave the jury the alternative methods instruction.”


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