                                                                  2020 WI 40

                   SUPREME COURT             OF   WISCONSIN
CASE NO.:               2017AP1616


COMPLETE TITLE:         London Scott Barney, a minor, by David P. Lowe,
                        his guardian ad litem and Raquel Barney,
                                  Plaintiffs-Appellants,
                        State of Wisconsin Department of Health and
                        Family Services,
                                  Involuntary-Plaintiff,
                        United Health Care of Wisconsin, Inc.,
                                  Intervenor,
                             v.
                        Julie Mickelson, MD, Columbia St. Mary's
                        Hospital Milwaukee, Inc. and Injured Patients
                        and Families Compensation Fund,
                                  Defendants-Respondents-Petitioners.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 387 Wis. 2d 684,928 N.W.2d 799
                                      (2019 – unpublished)

OPINION FILED:          April 24, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 13, 2020

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Timothy M. Witkowiak

JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:



ATTORNEYS:



      For the defendants-respondents-petitioners Julie Mickelson,
M.D. and Columbia St. Mary’s Hospital Milwaukee, Inc., there were
briefs filed by James R. Gutglass, Bradley S. Foley, Jason M.
Prekop       and     Gutglass,   Erickson,    Larson   &   Schneider,   S.C.,
Milwaukee. There was an oral argument by James R. Gutglass.
    For the defendant-respondent-petitioner Injured Patients and
Families Compensation Fund, there were briefs filed by Todd M.
Weir, Jason J. Franckowiak and Otjen Law Firm, S.C., Waukesha.
There was an oral argument by Todd M. Weir.


    For the plaintiffs-appellants London Scott Barney and Raquel
Barney, there was a brief filed by Kent A. Tess-Mattner, Amy
Hetzner and Schmidt, Rupke, Tess-Mattner & Fox, S.C., Brookfield.
There was an oral argument by Jeffrey M. Goldberg.




                                2
                                                           2020 WI 40
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.    2017AP1616
(L.C. No.   15CV3042)

STATE OF WISCONSIN                       :              IN SUPREME COURT

London Scott Barney, a minor, by David P. Lowe,
his guardian ad litem and Raquel Barney,

            Plaintiffs-Appellants,

State of Wisconsin Department of Health and
Family Services,

            Involuntary-Plaintiff,
                                                                 FILED
United Health Care of Wisconsin, Inc.,                      APR 24, 2020

            Intervenor,                                         Sheila T. Reiff
                                                            Clerk of Supreme Court

      v.

Julie Mickelson, MD, Columbia St. Mary's
Hospital Milwaukee, Inc. and Injured Patients
and Families Compensation Fund,

            Defendants-Respondents-Petitioners.


DALLET, J., delivered the majority opinion for a unanimous Court.




      REVIEW of a decision of the Court of Appeals.           Reversed.



      ¶1    REBECCA FRANK DALLET, J.   This case centers on whether,

based on the evidence introduced at trial, a circuit court properly
                                                                     No.   2017AP1616



instructed a jury on the "alternative methods" paragraph of Wis

JI——Civil 1023 (2019) (the "alternative methods instruction").

       ¶2        London     Barney   was   born   with    severe   and     permanent

neurologic injuries.            London and his mother, Raquel Barney, filed

a medical malpractice action alleging that Dr. Julie Mickelson,

M.D., was negligent for failing to accurately trace London's fetal

heart rate during Mrs. Barney's labor.                  The Barneys alleged that

without an accurate tracing of London's heart rate, Dr. Mickelson

did not recognize signs that London's oxygenation status was

depleting.

       ¶3        Over the Barneys' objection, the circuit court read the

jury       the   alternative     methods     instruction.      This    instruction

generally informed the jury that Dr. Mickelson was not negligent

if she used reasonable care, skill, and judgment in administering

any    one       of   the   recognized     reasonable    treatment    methods    for

monitoring London's heart rate.              The jury found Dr. Mickelson not

negligent in her care and treatment of the Barneys.1                  The court of

appeals reversed the judgment dismissing the Barneys' medical
malpractice action and remanded the case for a new trial.2

       ¶4        We conclude that based on all of the expert testimony

introduced at trial, the jury was properly given the alternative

methods instruction in this case.               Therefore, we reverse the court

of appeals and uphold the jury verdict.

       The Honorable Timothy Witkowiak of the Milwaukee County
       1

Circuit Court presided.

       Barney v. Mickelson, No. 2017AP1616, unpublished slip op.,
       2

¶18 (Wis. Ct. App. Apr. 16, 2019).

                                            2
                                                                   No.    2017AP1616



               I.    FACTUAL BACKGROUND AND PROCEDURAL POSTURE

       ¶5      Mrs. Barney was admitted to Columbia St. Mary's Hospital

in Milwaukee on February 15, 2012, to induce labor and deliver her

son, London.          Throughout Mrs. Barney's labor, Dr. Mickelson and

the care team utilized an external monitor, attached to Mrs.

Barney's abdomen, to record and report London's heart rate.3                     Dr.

Mickelson delivered London on February 16, 2012.                  London was born

blue,      nonresponsive,      and   exhibited     limited   muscle      movements.

London      was     resuscitated,    but    sustained    permanent      and   severe

neurologic injuries.

       ¶6      The Barneys filed a medical malpractice suit against Dr.

Mickelson, Columbia St. Mary's Hospital, and the Injured Patients

and Families Compensation Fund (collectively, the Defendants),

alleging that Dr. Mickelson and her staff failed to recognize and

properly respond to signs of fetal oxygen deprivation, and that

this       failure    caused   London      to   suffer   severe   and    permanent

neurologic injuries. The case proceeded to a three-week jury trial

that included the testimony of 16 expert witnesses.




       There is no dispute about what an external monitor does.
       3

However, we provide some background for the benefit of the reader.
An external monitor is a device to listen to and record a fetal
heart    rate    through    the    mother's    abdomen.        See
https://www.hopkinsmedicine.org/health/treatment-tests-and-
therapies/fetal-heart-monitoring.   The rate and pattern of the
baby's heart rate is shown on a screen and printed on paper on
"external monitor strips." Id.

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                                                          No.   2017AP1616



     ¶7   As relevant to this appeal,4 the Barneys maintained that

90 minutes prior to delivery, at the critical pushing stage, Dr.

Mickelson was negligent in failing to switch to a more accurate

method of monitoring London's heart rate, which would have revealed

London's lack of adequate oxygenation.5        The Barneys' standard of

care expert, Dr. Bruce Bryan, testified that the external monitor

was not accurately tracing London's heart rate 90 minutes prior to

delivery, and therefore Dr. Mickelson should have switched to a

pulse oximeter or a fetal scalp electrode to trace the fetal heart

rate.6

     ¶8   Dr.   Mickelson   testified   that   she   believed   that   the

external monitor was accurately tracing London's heart rate.           Dr.

Mickelson's two standard of care experts, Dr. Dennis Worthington

and Dr. Sean Blackwell, opined that the external monitor was


     4 Although a total of 16 experts testified at trial, the issue
raised in this appeal involves the testimony of the three standard
of care experts and Dr. Mickelson.
     5 The parties do not dispute that information about the rate
and pattern of the fetal heart rate during labor helps the care
team to assess fetal well-being and oxygenation levels.
     6 As background for the reader:    a pulse oximeter is "[a]
clip-like device called a probe [that] is placed on a body part,
such as a finger or ear lobe. The probe uses light to measure how
much        oxygen         is        in        the        blood."
https://www.hopkinsmedicine.org/health/treatment-tests-and-
therapies/pulse-oximetry.

     A fetal scalp electrode is a "wire electrode [that] is
attached to the fetal scalp or other body part through the cervical
opening     and      is     connected     to      [a]     monitor."
https://www.urmc.rochester.edu/encyclopedia/content.aspx?content
typeid=92&contentid=P07776.

                                  4
                                                                        No.    2017AP1616



accurately      monitoring      London's       heart    rate,     and   that     it    was

reasonable for Dr. Mickelson to continue using the external monitor

throughout the delivery, rather than switching to a pulse oximeter

or fetal scalp electrode.

     ¶9     Prior   to    trial,     and   again       at   the   jury    instruction

conference, the Defendants requested that the circuit court give

the alternative methods instruction, which reads:

     If you find from the evidence that more than one method
     of (treatment for) (diagnosing) (plaintiff)'s (injuries)
     (condition) was recognized as reasonable given the state
     of medical knowledge at that time, then (doctor) was at
     liberty to select any of the recognized methods.
     (Doctor) was not negligent because (he) (she) chose to
     use one of these recognized (treatment) (diagnostic)
     methods rather than another recognized method if (he)
     (she) used reasonable care, skill, and judgment in
     administering the method.

Wis JI——Civil 1023.7           The Defendants argued that the instruction

was warranted based on testimony that the continued use of the

external    monitor      was    recognized       as    a    reasonable        method    of

treatment.      The Barneys objected to the instruction, arguing that

Dr. Mickelson's continued reliance on the external monitor, as

opposed    to   switching       to   the   pulse       oximeter    or    fetal    scalp

electrode, was effectively "doing nothing," which was not an

alternative method.

     ¶10    The circuit court agreed with the Defendants and gave

the jury the following alternative methods instruction:


     7 The alternative methods instruction is an optional paragraph
contained in the medical malpractice jury instruction, Wis JI——
Civil 1023.

                                           5
                                                              No.     2017AP1616


      If you find from the evidence that more than one method
      of treatment for Raquel Barney's condition was
      recognized as reasonable in the state of medical
      knowledge at the time, then Dr. Mickelson was at liberty
      to select any of the recognized methods. Dr. Mickelson
      was not negligent because she chose to use one of these
      recognized treatment methods rather than another
      recognized treatment method if she used reasonable care,
      skill, and judgment in administering the method.
The jury, with two jurors dissenting, found Dr. Mickelson not

negligent in her care and treatment of the Barneys.8

      ¶11    The Barneys filed a motion after verdict for a new trial
pursuant to Wis. Stat. § 805.15(1) (2017-18)9 on the basis that

the   circuit    court   erroneously       gave   the   alternative    methods

instruction.     The Barneys asserted that the instruction misled the

jury because Dr. Mickelson did not actually employ one of the

alternative methods of treatment.            The circuit court denied the

motion.

      ¶12    The court of appeals, relying on Miller v. Kim, 191

Wis. 2d 187,     528   N.W.2d 72   (Ct.      App.   1995),   concluded     that

Dr. Mickelson's continued reliance on the external monitor was

"not an acceptable 'alternative diagnostic technique'" and her

failure to switch to a pulse oximeter or fetal scalp electrode
was, instead, a decision to "do nothing."               Barney v. Mickelson,

No. 2017AP1616, unpublished slip op., ¶19 (Wis. Ct. App. Apr. 16,

2019).      Since the alternative methods instruction "likely misled


      8The jury also found that Dr. Mickelson was not negligent
with respect to her informed consent obligations. That issue is
not before us on appeal.
      9All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.

                                       6
                                                        No.    2017AP1616



the jury," the court of appeals remanded the case for a new trial.

Id., ¶¶19-20.

     ¶13   The Defendants petitioned this court for review, which

we granted.

                        II.    STANDARD OF REVIEW

     ¶14   It is well established that a circuit court has broad

discretion when instructing a jury.        See, e.g., White v. Leeder,

149 Wis. 2d 948, 954, 440 N.W.2d 557 (1989).        We review the jury

instructions to determine whether, as a whole, they adequately and

properly communicated to the jury a correct statement of the law.

See Nowatske v. Osterloh, 198 Wis. 2d 419, 428-29, 543 N.W.2d 265

(1996), abrogated on other grounds by Nommensen v. Am. Cont'l Ins.

Co., 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301.            If a jury

instruction is determined to be erroneous, we reverse and remand

for a new trial only if the error was prejudicial.       See Kochanski

v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶11, 356 Wis. 2d 1, 850

N.W.2d 160.     "An error is prejudicial when it probably misled the

jury."   Id.
                              III.   ANALYSIS

     ¶15   This court has upheld substantially the same alternative

methods instruction as a correct statement of the law.        Nowatske,

198 Wis. 2d at 446-49.        The opening sentence of the instruction

"insures that it is for the jury, exercising its role as fact-

finder, to determine whether there is more than one method of

treatment as well as whether the treatment method chosen is among




                                     7
                                                         No.    2017AP1616



those methods recognized as acceptable."        Id. at 447.10         The

instruction is optional and to be given "only when the evidence

allows the jury to find that more than one method of diagnosis or

treatment    of   the   patient   is   recognized   by    the    average

practitioner."     Finley v. Culligan, 201 Wis. 2d 611, 622, 548

N.W.2d 854 (Ct. App. 1996) (citing Miller, 191 Wis. 2d at 198).

     ¶16    In Miller, the court of appeals recognized that the

alternative methods instruction is inappropriate in cases where

the alleged negligence "lies in failing to do something, not in

negligently choosing between courses of action."         191 Wis. 2d at

198 n.5.    Our task is to determine whether the alternative methods

instruction was erroneously given to the jury based on the record

in this case and in light of Miller.

     ¶17    We first review the trial testimony of Dr. Mickelson and

the parties' standard of care experts——Dr. Bryan, Dr. Worthington,


     10Nowatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d 265
(1996), abrogated on other grounds by Nommensen v. American
Continental Insurance Co., 2001 WI 112, 246 Wis. 2d 132, 629
N.W.2d 301, primarily dealt with the final sentence of the
alternative methods instruction, which was subsequently removed.
The Nowatske court reasoned that the instruction would be clearer
if:

     its final sentence were eliminated or if the paragraph
     stated explicitly that the jury alone determines which
     methods of treatment are "recognized" on the basis of
     the expert testimony in evidence. But these suggested
     revisions do not alter our conclusion that the third
     paragraph adequately instructed the jury regarding its
     prerogative to assess and weigh the evidence before it
     in reaching a verdict.

Id. at 448-49.

                                   8
                                                             No.   2017AP1616



and   Dr.   Blackwell——to    ascertain    the   reasonable     methods    of

treatment available to monitor London's heart rate.                We then

consider whether the court of appeals correctly relied upon Miller

to conclude that Dr. Mickelson in fact "did nothing," rendering

the alternative methods instruction inappropriate.

             A. The Contested Expert Testimony at Trial

      ¶18   The   Barneys'   case   depends   upon   the   conclusion    that

Dr. Mickelson's continued use of an external monitor was not among

the reasonable alternative methods of treatment to continuously

and accurately measure London's heart rate. A review of the record

shows that the parties' experts disputed whether the external

monitor was continuously and accurately measuring London's heart

rate in the last 90 minutes of labor and, consequently, whether

Dr. Mickelson's use of the external monitor continued to be a

reasonable alternative method.

      ¶19   The experts disputed the extent to which, in the last 90

minutes of labor, the external monitor missed London's heart rate

or traced Mrs. Barney's heart rate instead.          Dr. Blackwell, one of
Dr. Mickelson's experts, testified that "[m]y interpretation is

the bulk of the continuous tracing is fetal," meaning the external

monitor was predominantly monitoring London's heart rate.               While

Dr. Blackwell admitted that "it is a known phenomenon that a

monitor can misinterpret a fetal heart and a maternal heart

sometimes," he testified:

      I don't believe that it happened here. As I continuously
      watch the tracing, as we saw, we've seen hours and hours
      of tracing, a baby's heart rate like our heart rate
      changes quite a bit based on what's going on. I just

                                     9
                                                     No.   2017AP1616


     don't see those - - I don't over-interpret some of those
     isolated findings.    You have to look at the overall
     continuous pattern.
     ¶20   Additionally, in responding to the contention that for

substantial periods of time the fetal heart rate was being missed

and instead the maternal heart rate was being traced, Dr. Blackwell

said the following:

     [Defense   counsel]:     Was   there    any  reasonable
     possibility, in your opinion, that for substantial
     periods of time the real fetal tracing was being missed
     and maternal was being traced, and you were missing the
     status of this fetus during this labor?

     [Dr. Blackwell]:   Other than the period of the epidural,
     I'd say no.[11]
In Dr. Blackwell's view, when all of the external monitor strips

were read together, and in context, there was nothing to suggest

that London's heart rate was being missed.

     ¶21   Dr. Worthington, another one of Dr. Mickelson's experts,

testified that it was fairly easy to distinguish the fetal heart

rate from the maternal heart rate on the external monitor strips.12

Dr. Mickelson herself testified that she "could rule out that the

entire tracing was the maternal" and that she was "confident that



     11The epidural was given to Mrs. Barney 12 hours prior to
London's delivery.
     12The Barneys assert that Dr. Worthington's deposition
testimony was different than his trial testimony in regard to
whether the tracings on the external monitor were fetal or
maternal. However, this inconsistency was raised at trial and we
defer to a jury's credibility determinations. See Meurer v. ITT
Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979) ("The
credibility of witnesses and the weight given to their testimony
are left to the judgment of the jury . . . .").

                                10
                                                         No.   2017AP1616



the majority of the tracing except for a few small spots was the

baby . . . ."

     ¶22    The Barneys' expert, Dr. Bryan, was the only expert to

testify that there was a concerning "discontinuity" in the tracings

by the external monitor and indications that the monitor was

tracing the maternal heart rate rather than the fetal heart rate,

which should have prompted action by Dr. Mickelson.13          Dr. Bryan

testified that, starting in the morning on February 16th, there

was discontinuity in the external monitor readings, which meant

that Dr. Mickelson could not accurately assess fetal well-being.

However, he admitted that the failure to switch to an alternative

earlier in the day did not cause London any harm and that the

previous fetal tracings had been "decent."14   He ultimately opined

     13It was undisputed at trial that there were periods of time
where the external monitor showed discontinuity.       All of the
experts agreed that this was not automatically concerning, as it
was common to see this discontinuity or "drop out" during maternal
movement or repositioning. Dr. Bryan testified as follows:

     [Defense counsel]: So you agree that every time there's a
     difficult read or a sketchy tracing, the standard of care
     does not require putting in an internal scalp electrode, true?

     [Dr. Bryan]:    That's correct.
     14   Dr. Bryan was asked the following questions:

     [Defense counsel]:   The fact that there was no fetal
     scalp electrode on through 17:21, 5:21 for us civilians,
     did not cause any harm, true?

     [Dr. Bryan]:    True.

     [Defense counsel]: And we even extended it further at
     your deposition, did we not?

     [Dr. Bryan]:    Yes.
                                  11
                                                      No.    2017AP1616



that, at the very least, Dr. Mickelson missed signs of fetal

distress by not having an accurate fetal heart rate reading in the

90 minutes prior to London's delivery.

     ¶23   The experts further disputed whether, in the last 90

minutes of labor, Dr. Mickelson's continued use of the external

monitor to measure London's heart rate was a reasonable alternative

method to the use of a pulse oximeter or fetal scalp electrode to

monitor fetal heart rate.   Dr. Bryan was the only expert to testify

that since the external monitor was not accurately tracing London's

heart rate, Dr. Mickelson had to switch to one of two methods to

more accurately monitor the fetal heart rate and fetal well-being:

a pulse oximeter or a fetal scalp electrode.

     ¶24   Dr. Mickelson's experts did not dispute that the pulse

oximeter and fetal scalp electrode were reasonable alternatives to

monitor fetal heart rate.15    However, they testified that those

alternatives were not necessary in this case because continuing




     [Defense counsel]: You said that the baby was fine, and
     you've said that today through 18:10 or 6:10 . . . .

     [Dr. Bryan]:   I remember that.   That's what I said.

     [Defense counsel]: Okay. So as of 18:10 or 6:10, the
     fact that a fetal scalp electrode had not been placed
     did not cause any harm, true?

     [Dr. Bryan]:   True.


     15Dr. Blackwell and Dr. Mickelson both voiced concern that
Mrs. Barney's infection could have spread to London if a fetal
scalp electrode had been attached.

                                 12
                                                    No.     2017AP1616



with an external monitor was a reasonable alternative that fell

within the standard of care.   Dr. Worthington testified:

    [Defense counsel]:   Let me ask you this, if you have
    brief switches from fetal to maternal or drop-out due to
    position change, is it required by the standard of care
    to switch your monitoring of an infected mother to the
    invasive scalp electrode from what had been working with
    the external monitor?

    [Dr. Worthington]: I think if you feel comfortable with
    your recording and can interpret the fetal heart rate,
    there's no reason to switch.
    ¶25   Dr. Blackwell similarly testified that "the most common

and the most reasonable thing, if your tracings have been good

before then, is to continue to watch the tracing" and that it was

"very reasonable to continue to follow and watch" in this case.

He further testified on this point:

    [Plaintiff's counsel]: Am I correct, Doctor, that all
    they had to do to confirm whether they were really
    watching London or watching [Mrs. Barney] was take [Mrs.
    Barney's] pulse during a contraction and see how that
    compared to the rate -- the rate that's being traced.
    That is one way, correct?

    [Dr. Blackwell]: That is one way. There are other ways.
    That is one way.

    [Plaintiff's counsel]:     And the other way is to put on
    a pulse oximeter?

    [Dr. Blackwell]: That is another way, and another way
    is to watch the continuous fetal heart rate tracing.

    [Plaintiff's counsel]:     No, Doctor.  Watching it
    continuously may not tell you whether you're really
    watching mom or watching baby, correct?




                                 13
                                                                 No.    2017AP1616


     [Dr. Blackwell]: I believe that it did, and I believe
     it can, and I believe it's within the standard of
     care.[16]
     ¶26   Dr. Worthington also answered a question that precisely

tracked the language in the alternative methods instruction:

     [Defense counsel]: One final question. Was utilizing
     an external monitor a recognized alternative method to
     monitor this fetus?

     [Dr. Worthington]:     Yes.

     [Defense counsel]: And in administrating and applying
     that method of the external monitor, did Dr. Mickelson
     use   reasonable   care,   skill,  and   judgment   in
     administering that method?

     [Dr. Worthington]:     Yes.
     ¶27   The   trial   testimony    demonstrates        that    the    experts

disputed   whether   the   external       monitor   was   continuously        and

accurately tracing London's heart rate.             Further, there was a

dispute about whether continuing with the external monitor in the

last 90 minutes of Mrs. Barney's labor was a reasonable alternative

to a pulse oximeter or a fetal scalp electrode.             Since there was

substantial testimony that Dr. Mickelson's continued use of the
external monitor was a reasonable method to continue to assess

London's heart rate and was within the standard of care, the

alternative methods instruction was properly given by the circuit

court in this case.

                           B. Miller v. Kim




     16In addition, Dr. Blackwell testified that the placement of
a scalp electrode, the Barneys' other proffered alternative, was
not necessary in order to meet the standard of care.

                                     14
                                                                       No.    2017AP1616



      ¶28    Both the court of appeals and the Barneys maintain that

Dr. Mickelson's decision to continue with the external monitor was

a decision to "do nothing" that rendered the alternative methods

instruction improper, pursuant to the court of appeals' decision

in Miller.    In Miller, a jury found that a doctor was not negligent

in   his    failure    to   perform    a    spinal    tap    on    an    infant      who

subsequently suffered permanent brain damage from undiagnosed

meningitis.         191 Wis. 2d 187.        The Millers contended that the

circuit     court    committed    prejudicial        error   when       it    gave   the

alternative     methods       instruction    because     all      of    the    experts

testified that a spinal tap is the only reasonable method of

diagnosis for a young child with symptoms of spinal meningitis.

Id. at 191.

      ¶29    The court of appeals concluded that the circuit court

erred when it gave the alternative methods instruction because the

doctor's     claim     that     "individualized        observation"           was    "an

alternative     diagnostic       technique"    did     not   conform          with   the

unanimous expert testimony presented at trial.                     Id.       The court
reasoned:

      [t]he "alternative method" instruction is optional and
      is only to be given by the trial court when the evidence
      allows the jury to find that more than one method of
      treatment of the patient is recognized by the average
      practitioner.    The trial court's amendment of the
      pattern instruction would have been appropriate had
      there been medical expert testimony that there were
      available to the average practitioner alternative
      methods of diagnosing [the child's] spinal meningitis.




                                       15
                                                              No.    2017AP1616



Id. at 198.     Because the alternative methods instruction probably

misled the jury, the court remanded the case for a new trial.              Id.

at 190.

     ¶30     To fit this case into the Miller framework, the court of

appeals ignored the testimony of Dr. Mickelson's experts as to

alternative methods.17           The court focused solely on Dr. Bryan's

testimony and reasoned that since "there were signs that the

external fetal monitor may not have been reliably tracing the fetal

heart beat," Dr. Mickelson's "continued reliance on the external

fetal     monitor,   was   not    an   acceptable   'alternative    diagnostic

technique.'"     Barney, No. 2017AP1616, ¶19 (quoted source omitted).

     ¶31     However, as discussed above, the experts in this case

disputed whether the external monitor failed to accurately monitor

London's heart rate in the last 90 minutes of labor.                    Unlike

Miller, where the experts were unanimous that only one diagnostic

method existed, this record contained substantial expert testimony


     17 Dr. Mickelson asks us to overrule Miller v. Kim, 191
Wis. 2d 187, 528 N.W.2d 72 (Ct. App. 1995), because "its analysis
and reasoning allows Courts to engage in critical fact finding
that should be left to the jury." On several occasions, Wisconsin
courts have reviewed the applicability of the alternative methods
instruction and a plaintiff's assertion that their case was akin
to Miller. See, e.g., Weborg v. Jenny, No. 2010AP258, unpublished
slip op., ¶20 ("However, here, unlike Miller, there was evidence
of alternatives."); Finley v. Culligan, 201 Wis. 2d 611, 625-26,
548 N.W.2d 854 (Ct. App. 1996) ("Thus, this case is not like Miller
because this is not a case where all of the experts, including the
defense experts, testified at some point that performing a biopsy
was the only way to definitively diagnose a solid tumor as being
cancerous.").      Similarly,   the  facts   in   this   case   are
distinguishable from Miller and therefore, overruling Miller is
unwarranted and unnecessary.

                                        16
                                                           No.    2017AP1616



on which the jury could find that Dr. Mickelson's choice to

continue with the external monitor was a reasonable alternative

method of monitoring London's heart rate and was not analogous to

"doing nothing."     Therefore, we conclude that there is ample

evidence in this record to support the circuit court's decision to

give the alternative methods instruction.        See Lutz v. Shelby Mut.

Ins. Co., 70 Wis. 2d 743, 750, 235 N.W.2d 426 (1975) ("It is error

for a court [] to refuse to instruct on an issue which is raised

by the evidence . . . ."); see also Aetna Cas. & Sur. Co. v.

Osborne-McMillan Elevator Co., 26 Wis. 2d 292, 305, 132 N.W.2d 51

(1965) ("Where there is a conflict in the evidence and inconsistent

theories on the cause of the event are advanced, we believe

instructions encompassing both theories should be given.").

     ¶32   It is important to remember that "[i]t is the function

of the trier of fact, and not of an appellate court, to fairly

resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts."

State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).                  Any

dispute in testimony regarding the complex medical issues in this

case was for the jury, not the court of appeals or this court, to

weigh and ultimately resolve. Based on all of the expert testimony

presented at trial, the circuit court properly gave the jury the

alternative methods instruction.

                            IV.   CONCLUSION

     ¶33   We   conclude   that   the   jury   was   properly    given   the
alternative methods instruction in this case based on the expert
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testimony introduced at trial.    Therefore, we reverse the court of

appeals   decision   and   reinstate   the   judgment   dismissing   the

Barneys' claim against the Defendants.

     By the Court.— The decision of the court of appeals is

reversed.




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