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  • WisBar News
    January 10, 2017

    Obstetrician Loses Daubert Challenge at State Supreme Court

    Joe Forward


    Jan. 10, 2017 – An obstetrician found liable for negligence in the delivery of a child argued that the testimony of an expert who testified on the standard of medical care should have been excluded as unreliable. Recently, the state supreme court disagreed.

    In Seifert v. Balink, M.D., 2017 WI 2 (Jan. 6, 2017), a 5-2 majority ruled that the expert’s testimony was reliable and thus admissible under Wis. Stat. section 907.02(1) – also known as the Daubert reliability standard – affirming the trial and appeals courts.

    The defendant doctor, who lost a jury trial, argued on appeal that the plaintiff’s expert witness, an experienced obstetrician, based his opinions on personal experience rather than generally accepted standards and medical literature in the area of obstetrics.

    Although a five-justice majority agreed that the circuit court judge properly admitted the expert testimony in this medical malpractice case, the majority delivered that conclusion through three different opinions – a lead opinion by Justice Shirley Abrahamson, and concurring opinions from Justices Annette Ziegler and Michael Gableman.

    Justice Ann Walsh Bradley joined Justice Abrahamson’s lead opinion and Chief Justice Patience Roggensack joined Justice Gableman’s concurrence. Justice Daniel Kelly wrote a dissent, joined by Justice Rebecca Bradley. They would have reversed.

    Prenatal Care and Delivery

    Dr. Kay Balink provided prenatal care to Kimberly Seifert and delivered her baby. But complications arose during delivery. The baby’s shoulder became stuck, a condition called shoulder dystocia. Dr. Balink performed maneuvers to complete delivery, but the baby was born with a permanent brachial plexus injury, which limits arm functioning.

    The Seiferts commenced a claim alleging medical negligence.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    ​Specifically, the family argued Dr. Balink failed to perform the proper procedures – such as a three-hour test for gestational diabetes and a pre-delivery ultrasound – to more accurately gauge the risk for shoulder dystocia based on the baby’s expected size.

    Dr. Balink had underestimated the baby’s weight by one pound, four ounces. She also used a vacuum device at delivery, which increases the risk for a brachial plexus injury.

    Expert Testimony

    To make the case, the Seiferts called an expert witness, Dr. Jeffrey Wener, a certified obstetrician-gynecologist (OB-GYN) in Chicago. He said he had delivered up to 8,000 babies in his 36-year career, and encountered up to 40 instances of shoulder dystocia.

    Dr. Wener also chaired the OB-GYN department of a hospital for approximately 20 years, overseeing quality of care, and has taught medical students and residents.

    He testified about the standard of medical care for family practice obstetricians and concluded that Dr. Balink did not meet the standard of care in this case. He based his opinions on his personal experiences and was subjected to cross-examination.

    Dr. Wener said that, based on the mother’s weight and weight gain during pregnancy, Dr. Balink should have performed a three-hour test for gestational diabetes, instead of a less accurate one-hour test, and should have performed an ultrasound before delivery.

    Wener said that obstetricians should use a one-hour glucose threshold of 130 mg/dL to determine whether a three-hour test should be performed. Dr. Balink used a 140 mg/dL threshold. Seifert’s one-hour test showed a glucose level of 131 mg/dL. Dr. Balink cited guidelines that a 140 mg/dL range was acceptable, but Dr. Wener disagreed.

    He also concluded that Dr. Balink should not have used the vacuum to assist delivery, and breached a standard of care by applying excessive traction beyond what the fetus could withstand when trying to remove the shoulder dystocia condition to deliver.

    Dr. Balink argued that Dr. Wener’s testimony was not the product of reliable methods, as required under the Daubert reliability standard at Wis. Stat. section 907.02(1).

    The “reliability” portion of that statute, adopted in 2011, says expert testimony is admissible if 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 said Dr. Wener’s testimony was based on personal clinical experience – what he would have done – and not on generally accepted medical practices or standards.

    But the circuit court allowed the testimony and a jury ultimately returned a verdict in favor of the Seiferts. The jury awarded $1.75 million for past and future pain and suffering, cut to $750,000 under a law that caps noneconomic damages. The court also entered judgment for $135,000 in medical expenses. An appeals court affirmed.

    Lead Opinion

    In the lead opinion, Justice Shirley Abrahamson concluded that “experience-based expert evidence may pass muster as a method under the reliability requirement.”

    “An expert cannot establish that a fact is generally accepted merely by saying so,” Abrahamson wrote. “Case law demonstrates, nonetheless, that courts frequently admit experience-based testimony, especially when expert medical evidence is offered.”

    She noted that medical decision-making is not a strict application of science. It involves judgment based on numerous factors. If a physician has enough knowledge and experience to form an expert opinion, that expert opinion can be considered reliable.

    “The case law teaches that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by excluding medical expert testimony that is supported by extensive relevant medical experience,” Justice Abrahamson wrote.

    Abrahamson concluded that the trial court did not commit an error by allowing the jury to hear Dr. Wener’s testimony, concluding it was reliable and reliably applied to the facts.

    Ziegler Concurs

    Justice Ziegler agreed that the court of appeals decision should be affirmed, but wrote separately for two reasons. First, she said the lead opinion did not sufficiently address the 2011 changes impacting the admissibility of expert opinion testimony in Wisconsin.

    “Second, the lengthy lead opinion does not adequately guide trial courts with regard to how they should apply Wis. Stat. § 907.02,” she wrote. “In my view, a best practice for trial courts and counsel is to create a detailed, complete record regarding why any particular expert’s testimony meets the heightened scrutiny due under § 907.02.”

    She said determining the reliability of expert testimony in this medical malpractice case was a “close call” but a different case type might not have survived appellate review.

    Gableman Concurs

    Justice Gableman also concurred in the judgment, joined by Chief Justice Patience Roggensack. But he wrote separately to express a different framework for analyzing the reliability of medical expert testimony in the medical malpractice context.

    “Dr. Wener had a reliable method of determining the standard of care applicable to this case because of his experience,” Justice Gableman wrote. “His conclusion that Dr. Balink breached that standard of care logically follows from that method.

    “[T]he inconsistencies Dr. Balink points to in her brief as examples of an unreliable application go to the weight to be given to Dr. Wener’s testimony and not to the question of its admissibility,” Gableman noted.


    Justice Kelly dissented, joined by Justice R. Bradley, concluding that Dr. Wener’s testimony did not satisfy the requirements of Wis. Stat. section 907.02.

    “Dr. Wener’s task was to identify and describe the standard of medical care against which to measure Dr. Balink’s performance of her duties,” Justice Kelly wrote.

    “As it turns out, we focused so narrowly on Dr. Wener’s sterling professional credentials that we let him become the thing about which he was supposed to testify. That is, instead of determining whether Dr. Wener was qualified to discover and describe the proper standard of medical care, we found that he is the standard of medical care.”

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