In its unpublished opinion dated July 27, 2017, the Wisconsin Court of Appeals District IV (“Wisconsin Appellate Court”) affirmed the Wisconsin medical malpractice jury’s defense verdict in a birth injury medical malpractice case, finding that the trial court did not commit reversible error in its rulings during trial.
The defendant obstetrician had delivered the plaintiff’s baby on February 4, 2011 by vaginal delivery. The baby suffered a hypoxic ischemic injury to his brain and nervous system that resulted in his cerebral palsy. The plaintiff filed the Wisconsin birth injury medical malpractice case on behalf of the severely injured child, alleging that the defendant obstetrician breached the standard of care by failing to take actions to protect the child from unreasonable risk of injury during labor and delivery, and that this negligence was a substantial factor in causing his injury.
The plaintiff’s theory of medical negligence was that the child’s hypoxic ischemic injury was caused at or near the time of birth and that the standard of care required the defendant obstetrician to deliver the child by cesarean section several hours before the vaginal delivery. The defense argument was that the child’s injury occurred before the child’s mother arrived at the hospital and before the defendant obstetrician took over management of the labor.
The Wisconsin medical malpractice jury determined that the defendant obstetrician was not negligent, and it therefore did not reach the question of causation. The plaintiff appealed.
The plaintiff argued on appeal that the defendant’s attorney made inappropriate comments during closing argument, and that the trial court erroneously allowed testimony from the defendant’s experts that was not disclosed prior to trial.
The Wisconsin Appellate Court rejected the plaintiff’s argument that the defense attorney misstated the law during closing argument by merging the issues of causation and standard of care, contrary to the law as reflected by the special verdict form, which required that the jury first answer the question of whether the standard of care was violated, then move on to the issue of causation. The Wisconsin Appellate Court ruled that the defense counsel’s remarks, viewed in the context of defense counsel’s entire closing argument, did not misstate the law, but were a statement of how the facts related to the law— what the evidence presented at trial meant under the law—from a perspective favorable to the defense.
The Wisconsin Appellate Court further ruled that the trial court did not misuse its discretion in allowing the defendant obstetrician to give testimony at trial that added to testimony she had given in a pretrial deposition because the challenged testimony at trial did not relate to an opinion but instead inquired as to the defendant’s customs and practices. Furthermore, the trial court did not misuse its discretion in limiting the plaintiff’s cross-examination of the defendant because the plaintiff was not entitled to re-cover what he covered in the deposition that was already shown to the Wisconsin birth injury jury.
At trial, two of the defense experts testified to topics that had not been covered in their depositions, and the trial court overruled the plaintiff’s objections to the testimony as opinions that should have been disclosed prior to trial. The Wisconsin Appellate Court agreed with the trial court’s reasoning that the challenged testimony consisted of reasoning that supported the experts’ previously disclosed conclusions and the plaintiff had not asked questions at the depositions that would have elicited the challenged testimony.
The Wisconsin Appellate Court affirmed the jury’s verdict and the lower court’s judgment.
Source Haynes v. Thousand, Appeal No. 2016AP1761.
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