In a case decided on April 24, 2020, the Supreme Court of Wisconsin (“Wisconsin Supreme Court”) held: “We conclude that based on all of the expert testimony introduced at trial, the jury was properly given the alternative methods instruction in this case. Therefore, we reverse the court of appeals and uphold the jury verdict.”
The Underlying Facts
London Barney was born with severe and permanent neurologic injuries. London and his mother, Raquel Barney, filed a Wisconsin medical malpractice action alleging that Dr. Julie Mickelson, M.D., was negligent for failing to accurately trace London’s fetal heart rate during Mrs. Barney’s labor. The Barneys alleged that without an accurate tracing of London’s heart rate, Dr. Mickelson did not recognize signs that London’s oxygenation status was depleting.
The Barneys maintained that 90 minutes prior to delivery, at the critical pushing stage, Dr. Mickelson was negligent in failing to switch to a more accurate method of monitoring London’s heart rate, which would have revealed London’s lack of adequate oxygenation. The Barneys’ standard of care expert testified that the external monitor was not accurately tracing London’s heart rate 90 minutes prior to delivery, and therefore Dr. Mickelson should have switched to a pulse oximeter or a fetal scalp electrode to trace the fetal heart rate.
Dr. Mickelson testified that she believed that the external monitor was accurately tracing London’s heart rate. Dr. Mickelson’s two standard of care experts opined that the external monitor was accurately monitoring London’s heart rate, and that it was reasonable for Dr. Mickelson to continue using the external monitor throughout the delivery, rather than switching to a pulse oximeter or fetal scalp electrode.
Sixteen experts testified during the three-week jury trial. Over the Barneys’ objection, the circuit court read the jury the alternative methods instruction. This instruction generally informed the jury that Dr. Mickelson was not negligent if she used reasonable care, skill, and judgment in administering any one of the recognized reasonable treatment methods for monitoring London’s heart rate. The Wisconsin medical malpractice jury found Dr. Mickelson not negligent in her care and treatment of the Barneys.
The court of appeals reversed the judgment dismissing the Barneys’ medical malpractice action and remanded the case for a new trial.
Wisconsin Supreme Court Opinion
Alternative Methods Instruction
The alternative methods instruction states: “If you find from the evidence that more than one method of (treatment for) (diagnosing) (plaintiff)’s (injuries) (condition) was recognized as reasonable given the state of medical knowledge at that time, then (doctor) was at liberty to select any of the recognized methods. (Doctor) was not negligent because (he) (she) chose to use one of these recognized (treatment) (diagnostic) methods rather than another recognized method if (he) (she) used reasonable care, skill, and judgment in administering the method.” Wis JI——Civil 1023.
The Defendants argued that the instruction was warranted based on testimony that the continued use of the external monitor was recognized as a reasonable method of treatment. The Barneys objected to the instruction, arguing that Dr. Mickelson’s continued reliance on the external monitor, as opposed to switching to the pulse oximeter or fetal scalp electrode, was effectively “doing nothing,” which was not an alternative method.
The Wisconsin Supreme Court stated, “The opening sentence of the instruction “insures that it is for the jury, exercising its role as fact-finder, to determine whether there is more than one method of treatment as well as whether the treatment method chosen is among those methods recognized as acceptable” … The instruction is optional and to be given “only when the evidence allows the jury to find that more than one method of diagnosis or treatment of the patient is recognized by the average practitioner” … the alternative methods instruction is inappropriate in cases where the alleged negligence “lies in failing to do something, not in negligently choosing between courses of action.””
The Wisconsin Supreme Court stated in the case it was deciding: “The Barneys’ case depends upon the conclusion that Dr. Mickelson’s continued use of an external monitor was not among the reasonable alternative methods of treatment to continuously and accurately measure London’s heart rate. A review of the record shows that the parties’ experts disputed whether the external monitor was continuously and accurately measuring London’s heart rate in the last 90 minutes of labor and, consequently, whether Dr. Mickelson’s use of the external monitor continued to be a reasonable alternative method.”
“The experts disputed the extent to which, in the last 90 minutes of labor, the external monitor missed London’s heart rate or traced Mrs. Barney’s heart rate instead. Dr. Blackwell, one of Dr. Mickelson’s experts, testified that “[m]y interpretation is the bulk of the continuous tracing is fetal,” meaning the external monitor was predominantly monitoring London’s heart rate … The Barneys’ expert, Dr. Bryan, was the only expert to testify that there was a concerning “discontinuity” in the tracings by the external monitor and indications that the monitor was tracing the maternal heart rate rather than the fetal heart rate, which should have prompted action by Dr. Mickelson.”
“The experts further disputed whether, in the last 90 minutes of labor, Dr. Mickelson’s continued use of the external monitor to measure London’s heart rate was a reasonable alternative method to the use of a pulse oximeter or fetal scalp electrode to monitor fetal heart rate. Dr. Bryan was the only expert to testify that since the external monitor was not accurately tracing London’s heart rate, Dr. Mickelson had to switch to one of two methods to more accurately monitor the fetal heart rate and fetal well-being: a pulse oximeter or a fetal scalp electrode.”
“Dr. Mickelson’s experts did not dispute that the pulse oximeter and fetal scalp electrode were reasonable alternatives to monitor fetal heart rate. However, they testified that those alternatives were not necessary in this case because continuing with an external monitor was a reasonable alternative that fell within the standard of care.”
The Wisconsin Supreme Court concluded: “The trial testimony demonstrates that the experts disputed whether the external monitor was continuously and accurately tracing London’s heart rate. Further, there was a dispute about whether continuing with the external monitor in the last 90 minutes of Mrs. Barney’s labor was a reasonable alternative to a pulse oximeter or a fetal scalp electrode. Since there was substantial testimony that Dr. Mickelson’s continued use of the external monitor was a reasonable method to continue to assess London’s heart rate and was within the standard of care, the alternative methods instruction was properly given by the circuit court in this case … 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. Based on all of the expert testimony presented at trial, the circuit court properly gave the jury the
alternative methods instruction.”
Source Barney v. Mickelson, 2020 WI 40.
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