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    June
    28
    2012

    Evidence of Collateral Source Payments Harmless in Malpractice Suit Against Doctors


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    June 28, 2012 – It was harmless error for the jury to hear evidence that a widow received life insurance proceeds after her husband died, the Wisconsin Supreme Court has ruled in a medical malpractice lawsuit favoring three physicians.

    Evidence of Collateral Source Payments Harmless in Malpractice Suit against Doctors

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Evidence of Collateral Source 
Payments Harmless in Malpractice Suit against Doctors June 28, 2012 – It was harmless error for the jury to hear evidence that a widow received life insurance proceeds after her husband died, the Wisconsin Supreme Court has ruled in a medical malpractice lawsuit favoring three physicians.

    Counsel for Theresa Weborg argued that her receipt of life insurance proceeds totaling $1.4 million was not relevant to the question of whether the doctors were negligent in caring for her husband, William Weborg, who died in September 2004 of coronary artery disease.

    The physician’s argued that “collateral source payments” are always relevant in medical malpractice cases under Wis. Stat. section 893.55(7), which states that “evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible” in medical malpractice actions.

    In Weborg v. Jenny, 2012 WI 67 (June 28, 2012), a supreme court majority ruled that collateral source payments are only admissible if relevant, a rule of evidence, and the circuit court erred by not considering relevancy. However, the error was harmless, a 5-2 majority ruled.

    “We, like the court of appeals, conclude that the circuit court’s error in admitting the evidence of life insurance proceeds and social security benefits was harmless,” wrote Justice Annette Ziegler. In other words, the majority ruled that introduction of the life insurance proceeds and social security benefits that Weborg received did not affect her substantial rights.

    “[T]he admission of the evidence of collateral source payments does not undermine our confidence in the jury’s determination that” the doctors were not negligent in caring for William Weborg, Justice Ziegler explained in the majority opinion.

    The evidence was introduced on the third day of an eight-day trial and never mentioned again, the majority noted, and no party mentioned the evidence in closing arguments. In addition, the jury was not instructed to determine damages, only negligence and causation.

    In a concurrence/dissent, Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) agreed with the majority that the circuit court committed error when it allowed the collateral source evidence to be admitted without determining relevancy.

    “I dissent, however, because I cannot assuredly say, as the majority does, that the error does not undermine my confidence in the jury’s determination that not one of the three physicians was negligent in the care and treatment of William Weborg,” the chief justice wrote.

    The dissenting judges viewed the $1.4 million life insurance proceeds as a large sum, “and jurors would very likely remember these sums,” Chief Justice Abrahamson wrote.

    They also ruled that the circuit court erred in modifying the standard jury instruction on expert testimony. Again, that error was harmless, the court concluded.

    The modified instruction said the jury was not bound by expert opinion, “except with regard to the standard of care exercised by medical doctors.”

    “[T]hat the jury must determine the standard of care from expert testimony does not mean that the jury is bound by any one expert’s opinion on the standard of care,” Ziegler wrote.

    However, the court ruled that “there is no reasonable possibility that the circuit court’s error in modifying the standard jury instruction on expert testimony contributed to the outcome of the trial.”

    Attorneys

    Michael Van Sicklen and Krista Sterken of Foley & Lardner LLP, Madison, represented the physicians, Donald Jenny, Erik Borgnes, and Joseph Rebhan. Michael End of End, Hierseman & Crain LLC, Milwaukee, represented the Weborg family.