WisBar News: Physician’s Testimony Admissible in Med-Mal Case, Appeals Court Rules:

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  • WisBar News
    August
    12
    2015

    Physician’s Testimony Admissible in Med-Mal Case, Appeals Court Rules

    Joe Forward

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    Aug. 12, 2015 – A state appeals court has rejected a physician’s claim that another physician’s testimony about her standard of prenatal and delivery care should have been excluded at trial, concluding the testimony met the standard governing admissibility of expert testimony.

    During delivery, Kimberly and David Seifert’s baby, Braylon, suffered nerve damage that permanently impaired his left arm. The couple filed a lawsuit for negligence against Dr. Kay Balink, who provided prenatal care to Kimberly and delivered the baby.

    The Seifert’s called an expert witness, Dr. Jeffery Wener, who testified that Dr. Balink did not meet the standard of prenatal and delivery care for practitioners in that area.

    Specifically, Dr. Wener testified that Dr. Balink did not perform an ultrasound to estimate fetal weight immediately prior to birth, did not order a three-hour glucose test to determine whether the Kimberly Seifert had gestational diabetes, and should not have performed a vacuum-assisted delivery because of weight considerations.

    Taken together, Dr. Wener said, these factors increased the baby’s risk for shoulder dystocia, which can lead to nerve damage and oxygen depletion. Before trial, the circuit court denied Balink’s motion to exclude Wener’s testimony as inadmissible.

    The jury ultimately found that Dr. Balink’s negligence caused the baby’s injury. The circuit court entered a judgment for almost $900,000. Balink appealed on the grounds that the doctor’s testimony did not meet the Daubert standard for admissibility.

    Under Wis. Stat. section 907.02(1), known as the Daubert standard, “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.”

    Dr. Balink argued that Dr. Wener’s testimony was not based on reliable principles or methods, but on personal preferences. She also said the testimony was not supported by medical literature and the doctor did not reliably apply his opinions to the facts.

    In Seifert v. Balink, M.D., 2014AP195 (July 30, 2015), a three-judge panel for the District IV Court of Appeals affirmed, noting that courts “may consider personal experience and knowledge when determining the reliability of expert testimony.”

    Dr. Balink had noted that Dr. Wener did not rely on medical literature to conclude that a follow-up, three-hour gestational diabetes test should have been performed.

    She noted that Kimberly Seifert passed the one-hour gestational diabetes screening, under guidelines from the American College of Obstetrics and Gynecology.

    But the appeals court explained that “reliance on peer reviewed publications is just one factor that courts may consider under Daubert.”

    “Dr. Balink does not provide a persuasive reason why the court improperly exercised its discretion when it admitted Dr. Wener’s testimony even though Dr. Wener did not base his testimony on medical literature,” wrote Judge Paul Higginbotham.

    The panel also rejected Balink’s argument that Wener’s testimony was not reliable, including testimony that the baby had an excessive birth weight under threshold figures that contradicted that conclusion. But the appeals court was not persuaded:

    “Whether or not Dr. Wener’s testimony on these issues could be weakened or discredited on cross-examination, through other expert testimony, or by argument … speaks not to the reliability of Dr. Wener’s opinions, but to their weight.”

    The court also rejected Dr. Balink’s claim that a plaintiff-side lawyer made statements that prejudiced the defense and thus a new trial was required.

    During closing argument, Braylon’s lawyer said Dr. Balink ignored risk factors, comparing her to a driver that does not slow down during bad weather.

    However, on a pretrial request from the defense, the plaintiffs were prohibited from analogizing medical negligence to driver negligence.

    “While counsel’s analogy during his closing argument did involve speed limits, it did not suggest that that medical negligence and ordinary negligence are similar,” wrote Judge Higginbotham, concluding the analogy did not violate the court’s pretrial order.

    Finally, the panel concluded that a plaintiff-side lawyer did not violate the Golden Rule prohibition, which generally prohibits counsel from asking the jury to put themselves in the victim’s shoes when determining what they might have expected or wanted.

    Counsel asked whether the jurors would have wanted their own doctor to follow-up with testing if initial testing showed numbers near threshold levels for possible problems.

    “Taken in light of the entire argument presented to the jury, these statements did not affirmatively prejudice Dr. Balink,” Judge Higginbotham wrote.




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