Evidence of Collateral Source Payments Harmless in Malpractice Suit
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
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
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
“[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
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
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
“[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
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.