The State of Wisconsin Court of Appeals District I (“Wisconsin Appellate Court”), in its decision filed on April 16, 2019, reversed a defense verdict in a Wisconsin birth injury medical malpractice case, finding that the trial court erroneously provided the jury with a misleading alternative methods instruction that likely confused the jury.
Wisconsin’s Alternative Methods Instruction
The Wisconsin “alternative methods” jury instruction (WIS JI—CIVIL 1023) 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.”
The alternative methods instruction the trial court provided to the jury in the present case stated: “If you find from the evidence that more than one method of treatment for Raquel Barney’s condition was recognized as reasonable in the state of medical knowledge at the time, then Dr. Mickelson was at liberty to select any of the recognized methods. Dr. Mickelson was not negligent because she chose to use one of these recognized treatment methods rather than another recognized treatment method if she used reasonable care, skill, and judgment in administering the method.”
The Wisconsin Appellate Court held that in this birth injury medical malpractice case where the issue is whether the defendant physician negligently failed to recognize the difference between the maternal and fetal heart rates during labor and delivery, and thus failed to recognize signs of fetal distress, the alternative methods instruction is misleading because the instruction implies that as long as the defendant physician employed a method of tracing the baby’s heart rate she is absolved of negligence. The Wisconsin Appellate Court held that the alternative methods instruction is inappropriate where the alleged negligence lies in failing to do something, as opposed to negligently choosing between courses of action. Simply put, “doing nothing” is not an alternative method of treatment or diagnosis.
The Wisconsin Appellate Court stated: “when there were signs that the external fetal monitor may not have been reliably tracing the fetal heart beat, [the defendant’s] “individualized observation,” i.e., her continued reliance on the external fetal monitor, was not an acceptable “alternative diagnostic technique.” [The defendant] administered neither a pulse oximeter nor a fetal scalp electrode. Thus, [the defendant’s] decision to “d[o] nothing” did not warrant the alternative methods instruction which, under the facts here, likely misled the jury.”
Source Barney v. Mickelson, Appeal No. 2017AP1616.
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