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Supreme Court declines to apply stringent standard to physician testimony

The Wisconsin Supreme Court issued its decision in Seifert v. Balink, et al. on January 6, upholding a trial court decision allowing a plaintiff’s physician expert to testify regarding the standard of care in a medical negligence case. The case involved the important question of what standard applies to the admissibility of physician expert testimony, especially standard of care testimony.

Wisconsin amended its statutory standard for expert testimony in 2011, adopting the Daubert standard applied by federal courts for over 20 years. The new, more stringent, standard requires that for expert testimony to be admissible in court proceedings, it must be (1) relevant, (2) provided by a qualified expert, (3) based on sufficient facts and data, (4) the product of reliable principles and methods, and (5) be applied in a reliable manner.

In Seifert, the infant patient suffered a permanent brachial plexus injury resulting from shoulder dystocia during delivery. The parents brought suit alleging the injury was caused by the negligence of Dr. Balink during delivery and in not identifying an increased likelihood of large fetal size that increased the risk of complications such as dystocia. Plaintiffs relied on the testimony of a Chicago-based obstetrician/gynecologist to establish the standard of care applicable to Dr. Balink’s treatment. The expert based his opinions entirely on his qualifications and experience, applying what he termed a “holistic” perspective to conclude that Dr. Balink was negligent. The trial court allowed the expert to testify despite his lack of reliance on peer-reviewed literature, guidelines from relevant specialty societies or other evidence indicating that the standard he opined was not just his but represented that of reasonable physicians in the same specialty as Dr. Balink. The jury ultimately found Dr. Balink negligent.

In a fractured 2-1-2-2 decision, the Wisconsin Supreme upheld the trial court’s decision to allow the expert to testify, and by effect the verdict. The Court held that experience and qualifications alone can be enough to make a physician’s expert testimony “reliable,” even in absence of grounding in objective methodology, peer review literature or professional consensus. A majority of the Court reasoned that medicine is as much an art as science and therefore is not as subjectable to objective measurement as other learned professions. This, the Court concluded, is true even where the expert’s subjective testimony contradicts professional guidelines, peer-reviewed literature and other objective evidence of professional standards of care, which can be addressed via vigorous cross examination.

The Society filed two amicus briefs in the Seifert case, supported by the AMA, first urging the Supreme Court to take the case, and later educating the Court regarding how physicians assess the reliability of medical evidence. The brief also argued that permitting an expert to establish the standard of care based purely on personal experience would deprive Wisconsin physicians of reasonable notice of the precise standard against which their conduct will be measured, a point highlighted by the two dissenting justices.

The Society also filed an amicus brief in a related case, Bayer v. Dobbins, which involved similar facts and the same central issue, but applied to multiple defense experts who based their opinions on peer-reviewed literature and guidelines. For information regarding the Court of Appeals’ decision in Bayer v. Dobbins, see this July 7, 2016 Medigram article.

The fractured nature of the Court’s decision as well as the lack of a clearly articulated standard leaves open questions of exactly how trial courts will apply the statutory expert witness standard in light of this case when assessing the reliability, and therefore admissibility, of physician expert testimony. The Society continues to monitor this issue as well as other cases with the potential to impact the practice of medicine.

For more information regarding the Society’s judicial advocacy efforts, click here or e-mail Society General Counsel John Rather, JD.

Back to January 19, 2017 Medigram