London Scott Barney v. Julie Mickelson, MD , 2020 WI 40 ( 2020 )

2020 WI 40SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1616
COMPLETE TITLE: London Scott Barney, a minor, by David P. Lowe,
his guardian ad litem and Raquel Barney,
Plaintiffs-Appellants,
State of Wisconsin Department of Health and
Family Services,
Involuntary-Plaintiff,
United Health Care of Wisconsin, Inc.,
Intervenor,
v.
Julie Mickelson, MD, Columbia St. Mary's
Hospital Milwaukee, Inc. and Injured Patients
and Families Compensation Fund,
Defendants-Respondents-Petitioners.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 387 Wis. 2d 684,928 N.W.2d 799(2019 – unpublished)
OPINION FILED: April 24, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 13, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Timothy M. Witkowiak
JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-respondents-petitioners Julie Mickelson,
M.D. and Columbia St. Mary’s Hospital Milwaukee, Inc., there were
briefs filed by James R. Gutglass, Bradley S. Foley, Jason M.
Prekop and Gutglass, Erickson, Larson & Schneider, S.C.,
Milwaukee. There was an oral argument by James R. Gutglass.
For the defendant-respondent-petitioner Injured Patients and
Families Compensation Fund, there were briefs filed by Todd M.
Weir, Jason J. Franckowiak and Otjen Law Firm, S.C., Waukesha.
There was an oral argument by Todd M. Weir.
For the plaintiffs-appellants London Scott Barney and Raquel
Barney, there was a brief filed by Kent A. Tess-Mattner, Amy
Hetzner and Schmidt, Rupke, Tess-Mattner & Fox, S.C., Brookfield.
There was an oral argument by Jeffrey M. Goldberg.
2
2020 WI 40NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1616
(L.C. No. 15CV3042)
STATE OF WISCONSIN : IN SUPREME COURT
London Scott Barney, a minor, by David P. Lowe,
his guardian ad litem and Raquel Barney,
Plaintiffs-Appellants,
State of Wisconsin Department of Health and
Family Services,
Involuntary-Plaintiff,
FILED
United Health Care of Wisconsin, Inc., APR 24, 2020
Intervenor, Sheila T. Reiff
Clerk of Supreme Court
v.
Julie Mickelson, MD, Columbia St. Mary's
Hospital Milwaukee, Inc. and Injured Patients
and Families Compensation Fund,
Defendants-Respondents-Petitioners.
DALLET, J., delivered the majority opinion for a unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA FRANK DALLET, J. This case centers on whether,
based on the evidence introduced at trial, a circuit court properly
No. 2017AP1616
instructed a jury on the "alternative methods" paragraph of Wis
JI——Civil 1023 (2019) (the "alternative methods instruction").
¶2 London Barney was born with severe and permanent
neurologic injuries. London and his mother, Raquel Barney, filed
a 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.
¶3 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 jury found Dr. Mickelson not
negligent in her care and treatment of the Barneys.1 The court of
appeals reversed the judgment dismissing the Barneys' medical
malpractice action and remanded the case for a new trial.2
¶4 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 Honorable Timothy Witkowiak of the Milwaukee County
1
Circuit Court presided.
Barney v. Mickelson, No. 2017AP1616, unpublished slip op.,
2
¶18 (Wis. Ct. App. Apr. 16, 2019).
2
No. 2017AP1616
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 Mrs. Barney was admitted to Columbia St. Mary's Hospital
in Milwaukee on February 15, 2012, to induce labor and deliver her
son, London. Throughout Mrs. Barney's labor, Dr. Mickelson and
the care team utilized an external monitor, attached to Mrs.
Barney's abdomen, to record and report London's heart rate.3 Dr.
Mickelson delivered London on February 16, 2012. London was born
blue, nonresponsive, and exhibited limited muscle movements.
London was resuscitated, but sustained permanent and severe
neurologic injuries.
¶6 The Barneys filed a medical malpractice suit against Dr.
Mickelson, Columbia St. Mary's Hospital, and the Injured Patients
and Families Compensation Fund (collectively, the Defendants),
alleging that Dr. Mickelson and her staff failed to recognize and
properly respond to signs of fetal oxygen deprivation, and that
this failure caused London to suffer severe and permanent
neurologic injuries. The case proceeded to a three-week jury trial
that included the testimony of 16 expert witnesses.
There is no dispute about what an external monitor does.
3
However, we provide some background for the benefit of the reader.
An external monitor is a device to listen to and record a fetal
heart rate through the mother's abdomen. See
https://www.hopkinsmedicine.org/health/treatment-tests-and-
therapies/fetal-heart-monitoring. The rate and pattern of the
baby's heart rate is shown on a screen and printed on paper on
"external monitor strips." Id.3
No. 2017AP1616
¶7 As relevant to this appeal,4 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.5 The Barneys' standard of
care expert, Dr. Bruce Bryan, 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.6
¶8 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, Dr. Dennis Worthington
and Dr. Sean Blackwell, opined that the external monitor was
4 Although a total of 16 experts testified at trial, the issue
raised in this appeal involves the testimony of the three standard
of care experts and Dr. Mickelson.
5 The parties do not dispute that information about the rate
and pattern of the fetal heart rate during labor helps the care
team to assess fetal well-being and oxygenation levels.
6 As background for the reader: a pulse oximeter is "[a]
clip-like device called a probe [that] is placed on a body part,
such as a finger or ear lobe. The probe uses light to measure how
much oxygen is in the blood."
https://www.hopkinsmedicine.org/health/treatment-tests-and-
therapies/pulse-oximetry.
A fetal scalp electrode is a "wire electrode [that] is
attached to the fetal scalp or other body part through the cervical
opening and is connected to [a] monitor."
https://www.urmc.rochester.edu/encyclopedia/content.aspx?content
typeid=92&contentid=P07776.
4
No. 2017AP1616
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.
¶9 Prior to trial, and again at the jury instruction
conference, the Defendants requested that the circuit court give
the alternative methods instruction, which reads:
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 1023.7 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.
¶10 The circuit court agreed with the Defendants and gave
the jury the following alternative methods instruction:
7 The alternative methods instruction is an optional paragraph
contained in the medical malpractice jury instruction, Wis JI——
Civil 1023.
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No. 2017AP1616
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 jury, with two jurors dissenting, found Dr. Mickelson not
negligent in her care and treatment of the Barneys.8
¶11 The Barneys filed a motion after verdict for a new trial
pursuant to Wis. Stat. § 805.15(1) (2017-18)9 on the basis that
the circuit court erroneously gave the alternative methods
instruction. The Barneys asserted that the instruction misled the
jury because Dr. Mickelson did not actually employ one of the
alternative methods of treatment. The circuit court denied the
motion.
¶12 The court of appeals, relying on Miller v. Kim, 191
Wis. 2d 187, 528 N.W.2d 72 (Ct. App. 1995), concluded that
Dr. Mickelson's continued reliance on the external monitor was
"not an acceptable 'alternative diagnostic technique'" and her
failure to switch to a pulse oximeter or fetal scalp electrode
was, instead, a decision to "do nothing." Barney v. Mickelson,
No. 2017AP1616, unpublished slip op., ¶19 (Wis. Ct. App. Apr. 16,
2019). Since the alternative methods instruction "likely misled
8The jury also found that Dr. Mickelson was not negligent
with respect to her informed consent obligations. That issue is
not before us on appeal.
9All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
6
No. 2017AP1616
the jury," the court of appeals remanded the case for a new trial.
Id., ¶¶19-20.
¶13 The Defendants petitioned this court for review, which
we granted.
II. STANDARD OF REVIEW
¶14 It is well established that a circuit court has broad
discretion when instructing a jury. See, e.g., White v. Leeder,
149 Wis. 2d 948, 954, 440 N.W.2d 557 (1989). We review the jury
instructions to determine whether, as a whole, they adequately and
properly communicated to the jury a correct statement of the law.
See Nowatske v. Osterloh, 198 Wis. 2d 419, 428-29, 543 N.W.2d 265(1996), abrogated on other grounds by Nommensen v. Am. Cont'l Ins.
Co., 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301. If a jury
instruction is determined to be erroneous, we reverse and remand
for a new trial only if the error was prejudicial. See Kochanski
v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶11, 356 Wis. 2d 1, 850
N.W.2d 160. "An error is prejudicial when it probably misled the
jury." Id.III. ANALYSIS
¶15 This court has upheld substantially the same alternative
methods instruction as a correct statement of the law. Nowatske,
198 Wis. 2d at 446-49. 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
7
No. 2017AP1616
those methods recognized as acceptable." Id. at 447.10 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." Finley v. Culligan, 201 Wis. 2d 611, 622, 548
N.W.2d 854 (Ct. App. 1996) (citing Miller, 191 Wis. 2d at 198).
¶16 In Miller, the court of appeals recognized that 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." 191 Wis. 2d at
198 n.5. Our task is to determine whether the alternative methods
instruction was erroneously given to the jury based on the record
in this case and in light of Miller.
¶17 We first review the trial testimony of Dr. Mickelson and
the parties' standard of care experts——Dr. Bryan, Dr. Worthington,
10Nowatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d 265(1996), abrogated on other grounds by Nommensen v. American
Continental Insurance Co., 2001 WI 112, 246 Wis. 2d 132, 629
N.W.2d 301, primarily dealt with the final sentence of the
alternative methods instruction, which was subsequently removed.
The Nowatske court reasoned that the instruction would be clearer
if:
its final sentence were eliminated or if the paragraph
stated explicitly that the jury alone determines which
methods of treatment are "recognized" on the basis of
the expert testimony in evidence. But these suggested
revisions do not alter our conclusion that the third
paragraph adequately instructed the jury regarding its
prerogative to assess and weigh the evidence before it
in reaching a verdict.
Id. at 448-49.
8
No. 2017AP1616
and Dr. Blackwell——to ascertain the reasonable methods of
treatment available to monitor London's heart rate. We then
consider whether the court of appeals correctly relied upon Miller
to conclude that Dr. Mickelson in fact "did nothing," rendering
the alternative methods instruction inappropriate.
A. The Contested Expert Testimony at Trial
¶18 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.
¶19 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. While
Dr. Blackwell admitted that "it is a known phenomenon that a
monitor can misinterpret a fetal heart and a maternal heart
sometimes," he testified:
I don't believe that it happened here. As I continuously
watch the tracing, as we saw, we've seen hours and hours
of tracing, a baby's heart rate like our heart rate
changes quite a bit based on what's going on. I just
9
No. 2017AP1616
don't see those - - I don't over-interpret some of those
isolated findings. You have to look at the overall
continuous pattern.
¶20 Additionally, in responding to the contention that for
substantial periods of time the fetal heart rate was being missed
and instead the maternal heart rate was being traced, Dr. Blackwell
said the following:
[Defense counsel]: Was there any reasonable
possibility, in your opinion, that for substantial
periods of time the real fetal tracing was being missed
and maternal was being traced, and you were missing the
status of this fetus during this labor?
[Dr. Blackwell]: Other than the period of the epidural,
I'd say no.[11]
In Dr. Blackwell's view, when all of the external monitor strips
were read together, and in context, there was nothing to suggest
that London's heart rate was being missed.
¶21 Dr. Worthington, another one of Dr. Mickelson's experts,
testified that it was fairly easy to distinguish the fetal heart
rate from the maternal heart rate on the external monitor strips.12
Dr. Mickelson herself testified that she "could rule out that the
entire tracing was the maternal" and that she was "confident that
11The epidural was given to Mrs. Barney 12 hours prior to
London's delivery.
12The Barneys assert that Dr. Worthington's deposition
testimony was different than his trial testimony in regard to
whether the tracings on the external monitor were fetal or
maternal. However, this inconsistency was raised at trial and we
defer to a jury's credibility determinations. See Meurer v. ITT
Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979) ("The
credibility of witnesses and the weight given to their testimony
are left to the judgment of the jury . . . .").
10
No. 2017AP1616
the majority of the tracing except for a few small spots was the
baby . . . ."
¶22 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.13 Dr. Bryan
testified that, starting in the morning on February 16th, there
was discontinuity in the external monitor readings, which meant
that Dr. Mickelson could not accurately assess fetal well-being.
However, he admitted that the failure to switch to an alternative
earlier in the day did not cause London any harm and that the
previous fetal tracings had been "decent."14 He ultimately opined
13It was undisputed at trial that there were periods of time
where the external monitor showed discontinuity. All of the
experts agreed that this was not automatically concerning, as it
was common to see this discontinuity or "drop out" during maternal
movement or repositioning. Dr. Bryan testified as follows:
[Defense counsel]: So you agree that every time there's a
difficult read or a sketchy tracing, the standard of care
does not require putting in an internal scalp electrode, true?
[Dr. Bryan]: That's correct.
14 Dr. Bryan was asked the following questions:
[Defense counsel]: The fact that there was no fetal
scalp electrode on through 17:21, 5:21 for us civilians,
did not cause any harm, true?
[Dr. Bryan]: True.
[Defense counsel]: And we even extended it further at
your deposition, did we not?
[Dr. Bryan]: Yes.
11
No. 2017AP1616
that, at the very least, Dr. Mickelson missed signs of fetal
distress by not having an accurate fetal heart rate reading in the
90 minutes prior to London's delivery.
¶23 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.
¶24 Dr. Mickelson's experts did not dispute that the pulse
oximeter and fetal scalp electrode were reasonable alternatives to
monitor fetal heart rate.15 However, they testified that those
alternatives were not necessary in this case because continuing
[Defense counsel]: You said that the baby was fine, and
you've said that today through 18:10 or 6:10 . . . .
[Dr. Bryan]: I remember that. That's what I said.
[Defense counsel]: Okay. So as of 18:10 or 6:10, the
fact that a fetal scalp electrode had not been placed
did not cause any harm, true?
[Dr. Bryan]: True.
15Dr. Blackwell and Dr. Mickelson both voiced concern that
Mrs. Barney's infection could have spread to London if a fetal
scalp electrode had been attached.
12
No. 2017AP1616
with an external monitor was a reasonable alternative that fell
within the standard of care. Dr. Worthington testified:
[Defense counsel]: Let me ask you this, if you have
brief switches from fetal to maternal or drop-out due to
position change, is it required by the standard of care
to switch your monitoring of an infected mother to the
invasive scalp electrode from what had been working with
the external monitor?
[Dr. Worthington]: I think if you feel comfortable with
your recording and can interpret the fetal heart rate,
there's no reason to switch.
¶25 Dr. Blackwell similarly testified that "the most common
and the most reasonable thing, if your tracings have been good
before then, is to continue to watch the tracing" and that it was
"very reasonable to continue to follow and watch" in this case.
He further testified on this point:
[Plaintiff's counsel]: Am I correct, Doctor, that all
they had to do to confirm whether they were really
watching London or watching [Mrs. Barney] was take [Mrs.
Barney's] pulse during a contraction and see how that
compared to the rate -- the rate that's being traced.
That is one way, correct?
[Dr. Blackwell]: That is one way. There are other ways.
That is one way.
[Plaintiff's counsel]: And the other way is to put on
a pulse oximeter?
[Dr. Blackwell]: That is another way, and another way
is to watch the continuous fetal heart rate tracing.
[Plaintiff's counsel]: No, Doctor. Watching it
continuously may not tell you whether you're really
watching mom or watching baby, correct?
13
No. 2017AP1616
[Dr. Blackwell]: I believe that it did, and I believe
it can, and I believe it's within the standard of
care.[16]
¶26 Dr. Worthington also answered a question that precisely
tracked the language in the alternative methods instruction:
[Defense counsel]: One final question. Was utilizing
an external monitor a recognized alternative method to
monitor this fetus?
[Dr. Worthington]: Yes.
[Defense counsel]: And in administrating and applying
that method of the external monitor, did Dr. Mickelson
use reasonable care, skill, and judgment in
administering that method?
[Dr. Worthington]: Yes.
¶27 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.
B. Miller v. Kim
16In addition, Dr. Blackwell testified that the placement of
a scalp electrode, the Barneys' other proffered alternative, was
not necessary in order to meet the standard of care.
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No. 2017AP1616
¶28 Both the court of appeals and the Barneys maintain that
Dr. Mickelson's decision to continue with the external monitor was
a decision to "do nothing" that rendered the alternative methods
instruction improper, pursuant to the court of appeals' decision
in Miller. In Miller, a jury found that a doctor was not negligent
in his failure to perform a spinal tap on an infant who
subsequently suffered permanent brain damage from undiagnosed
meningitis. 191 Wis. 2d 187. The Millers contended that the
circuit court committed prejudicial error when it gave the
alternative methods instruction because all of the experts
testified that a spinal tap is the only reasonable method of
diagnosis for a young child with symptoms of spinal meningitis.
Id. at 191.
¶29 The court of appeals concluded that the circuit court
erred when it gave the alternative methods instruction because the
doctor's claim that "individualized observation" was "an
alternative diagnostic technique" did not conform with the
unanimous expert testimony presented at trial. Id. The court
reasoned:
[t]he "alternative method" instruction is optional and
is only to be given by the trial court when the evidence
allows the jury to find that more than one method of
treatment of the patient is recognized by the average
practitioner. The trial court's amendment of the
pattern instruction would have been appropriate had
there been medical expert testimony that there were
available to the average practitioner alternative
methods of diagnosing [the child's] spinal meningitis.
15
No. 2017AP1616
Id. at 198. Because the alternative methods instruction probably
misled the jury, the court remanded the case for a new trial. Id.
at 190.
¶30 To fit this case into the Miller framework, the court of
appeals ignored the testimony of Dr. Mickelson's experts as to
alternative methods.17 The court focused solely on Dr. Bryan's
testimony and reasoned that since "there were signs that the
external fetal monitor may not have been reliably tracing the fetal
heart beat," Dr. Mickelson's "continued reliance on the external
fetal monitor, was not an acceptable 'alternative diagnostic
technique.'" Barney, No. 2017AP1616, ¶19 (quoted source omitted).
¶31 However, as discussed above, the experts in this case
disputed whether the external monitor failed to accurately monitor
London's heart rate in the last 90 minutes of labor. Unlike
Miller, where the experts were unanimous that only one diagnostic
method existed, this record contained substantial expert testimony
17 Dr. Mickelson asks us to overrule Miller v. Kim, 191
Wis. 2d 187, 528 N.W.2d 72 (Ct. App. 1995), because "its analysis
and reasoning allows Courts to engage in critical fact finding
that should be left to the jury." On several occasions, Wisconsin
courts have reviewed the applicability of the alternative methods
instruction and a plaintiff's assertion that their case was akin
to Miller. See, e.g., Weborg v. Jenny, No. 2010AP258, unpublished
slip op., ¶20 ("However, here, unlike Miller, there was evidence
of alternatives."); Finley v. Culligan, 201 Wis. 2d 611, 625-26,
548 N.W.2d 854 (Ct. App. 1996) ("Thus, this case is not like Miller
because this is not a case where all of the experts, including the
defense experts, testified at some point that performing a biopsy
was the only way to definitively diagnose a solid tumor as being
cancerous."). Similarly, the facts in this case are
distinguishable from Miller and therefore, overruling Miller is
unwarranted and unnecessary.
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No. 2017AP1616
on which the jury could find that Dr. Mickelson's choice to
continue with the external monitor was a reasonable alternative
method of monitoring London's heart rate and was not analogous to
"doing nothing." Therefore, we conclude that there is ample
evidence in this record to support the circuit court's decision to
give the alternative methods instruction. See Lutz v. Shelby Mut.
Ins. Co., 70 Wis. 2d 743, 750, 235 N.W.2d 426 (1975) ("It is error
for a court [] to refuse to instruct on an issue which is raised
by the evidence . . . ."); see also Aetna Cas. & Sur. Co. v.
Osborne-McMillan Elevator Co., 26 Wis. 2d 292, 305, 132 N.W.2d 51(1965) ("Where there is a conflict in the evidence and inconsistent
theories on the cause of the event are advanced, we believe
instructions encompassing both theories should be given.").
¶32 It is important to remember that "[i]t is the function
of the trier of fact, and not of an appellate court, to fairly
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts."
State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 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.
IV. CONCLUSION
¶33 We conclude that the jury was properly given the
alternative methods instruction in this case based on the expert
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No. 2017AP1616
testimony introduced at trial. Therefore, we reverse the court of
appeals decision and reinstate the judgment dismissing the
Barneys' claim against the Defendants.
By the Court.— The decision of the court of appeals is
reversed.
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No. 2017AP1616
1