Weborg v. Jenny

Decision Date28 June 2012
Docket NumberNo. 2010AP258.,2010AP258.
Citation816 N.W.2d 191,341 Wis.2d 668,2012 WI 67
PartiesTheresa C. WEBORG, individually and as Personal Representative of the Estate of William N. Weborg, deceased, Nicholas Weborg, by his Guardian ad Litem, J. Michael End, Mitchell Weborg, by his Guardian ad Litem, J. Michael End and Michael Weborg, by his Guardian ad Litem, J. Michael End, Plaintiffs–Appellants–Petitioners, v. Donald B. JENNY, M.D., Erik M. Borgnes, M.D., Joseph J. Rebhan, M.D. and Physicians Insurance Company of Wisconsin, Inc., Defendants–Respondents.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

For the plaintiffs-appellants-petitioners, there briefs by J. Michael End, End, Hierseman & Crain, LLC, Milwaukee, and oral argument by J. Michael End.

For the defendants-respondents, there was a brief filed by Michael Van Sicklen and Krista Sterken, Foley & Lardner, LLP, Madison, with oral argument by Michael Van Sicklen.

Amicus curiae briefs were filed by Guy DuBeau and Axley Brynelson, LLP, Madison, for the Wisconsin Medical Society, Inc., and the Wisconsin Hospital Association, Inc., and Martha Heidt, Bye, Goff & Rohde, Ltd., River Falls, for the Wisconsin Association for Justice.

ANNETTE KINGSLAND ZIEGLER, J.

[341 Wis.2d 675]¶ 1 This is a review of an unpublished decision of the court of appeals, Weborg v. Jenny, No. 2010AP258, unpublished slip op., 2011 WL 2150049 (Wis.Ct.App. June 2, 2011), that affirmed three judgments entered on a jury verdict by the Door County Circuit Court, D. Todd Ehlers, Judge.

¶ 2 On September 26, 2004, at the age of 42, William Weborg died of severe coronary artery disease. His surviving wife, Theresa Weborg, and three minor sons, by their guardian ad litem, (collectively, the Weborgs)commenceda medical malpractice action against Dr. Donald B. Jenny; Dr. Erik M. Borgnes; Dr. Joseph J. Rebhan; their insurer, Physicians Insurance Company of Wisconsin, Inc.; and the Injured Patients and Families Compensation Fund (collectively, the physicians), claiming that the three physicians were negligent in their care and treatment of William, resulting in his death.

¶ 3 The case proceeded to a jury trial. Over the Weborgs' objection, the circuit court granted the physicians' motion in limine under Wis. Stat. § 893.55(7) (2009–10) 1 to introduce at trial evidence that Theresa Weborg received over $1.4 million in life insurance proceeds and $3,300 per month in social security benefits as a result of her husband's death. Subsequent to the admission of such evidence, however, the parties stipulated to the amount of damages, leaving the jury to decide only questions of liability.2 Also relevant to this appeal, the circuit court granted the physicians' request to modify the standard jury instruction on expert testimony.

¶ 4 The jury returned a verdict in favor of the physicians, finding that neither Dr. Jenny, Dr. Borgnes, nor Dr. Rebhan was negligent in his care and treatment of William Weborg. The circuit court entered three judgments on the jury verdict and dismissed the Weborgs' complaint against the physicians.

¶ 5 The Weborgs appealed, arguing that the circuit court committed reversible error in admitting the evidence of life insurance proceeds and social security benefits and in modifying the standard jury instruction on expert testimony. The court of appeals assumed, without deciding, that the circuit court erred in admitting the evidence of collateral source payments and agreed that the circuit court erred in modifying the jury instruction. Nevertheless, the court of appeals affirmed the judgments, concluding that both errors were harmless.

¶ 6 We granted the Weborgs' petition for review and now affirm.

¶ 7 First, we hold that evidence of collateral source payments is admissible under Wis. Stat. § 893.55(7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. In this case, the circuit court admitted the evidence of life insurance proceeds and social security benefits without first determining in its discretion whether either piece of evidence was relevant to the jury's determination of damages. Because the circuit court applied an improper legal standard in admitting the evidence of life insurance proceeds and social security benefits, we conclude that the circuit court erroneously exercised its discretion.

¶ 8 However, considering the trial as a whole, we conclude that the circuit court's error in admitting the evidence of life insurance proceeds and social security benefits did not affect the Weborgs' substantial rights and was therefore harmless.

¶ 9 Second, we conclude that the circuit court erroneously exercised its discretion in modifying the standard jury instruction on expert testimony. Again, however, we determine that the error was harmless.

I. FACTUAL BACKGROUND

¶ 10 Prior to his death, William Weborg lived with his wife and their three sons in the Village of Ephraim in Door County. Since graduating from high school, William worked at a small machine shop in Egg Harbor. William purchased the shop in October 2003, nearly one year before he died.

¶ 11 On March 22, 2004, William developed heaviness in his chest while exercising. Two days later, he was evaluated by Dr. Rebhan, a family practitioner. Dr. Rebhan performed a physical examination and an electrocardiogram (EKG).3 The EKG revealed a normal sinus rhythm without acute wave changes. Dr. Rebhan prescribed a cholesterol-lowering medicationand advised William to begin a daily aspirin regimen. Dr. Rebhan also scheduled William for an exercise stress test.

¶ 12 The exercise stress test was administered on April 1, 2004, and consisted of an EKG before, during, and after treadmill exercise. In addition, a nuclear isotope was injected into William's body to measure his blood flow both at rest and with stress.

¶ 13 The results of the nuclear scan were interpreted by Dr. Borgnes, a radiologist, as showing a mildly enlarged left ventricle and a small fixed defect consistent with an old infarct.4

¶ 14 Upon receiving the results of the exercise stress test, Dr. Rebhan prescribed nitroglycerin and referred William to Dr. Jenny, a cardiologist, for further evaluation. Dr. Jenny interpreted the results of William's EKG and performed a physical examination and chest x-ray on April 7, 2004. According to Dr. Jenny, William's resting EKG was normal, but his EKG under stress demonstrated “definitive convincing evidence of ischemia.” 5 Further observing that William's chest x-ray was “unremarkable,” Dr. Jenny ultimately opined that William suffered from [p]robable musculoskeletal chest wall pain.”

¶ 15 On June 25, 2004, William returned to Dr. Rebhan for a physical examination. William expressed no specific concerns at that time but advised that he continued to experience occasional chest pain while exercising. Noting that William's chest pain was “ruled out from a cardiac standpoint,” Dr. Rebhan referred William to a physical therapist.

[341 Wis.2d 680]¶ 16 The physical therapist evaluated William on August 27, 2004, but detected [n]o signs of musculoskeletal impairment.”

¶ 17 Upon receiving the physical therapist's report, Dr. Rebhan suggested that William's chest pain may be related to acid reflux and so directed William to take heartburn medication for a ten-day trial period.

¶ 18 On September 9, 2004, William telephoned Dr. Rebhan's office, complaining that the heartburn medication did not help. Dr. Rebhan responded the next day, advising that William's chest pain was [m]ost likely musculoskeletal.”

¶ 19 William Weborg died on September 26, 2004, prior to his next scheduled appointment with Dr. Rebhan. The Door County Medical Examiner determined that William's cause of death was “severe coronary artery disease due to arteriosclerotic cardiovascular disease (hardening of the arteries).”

II. PROCEDURAL POSTURE

¶ 20 On March 6, 2007, the Weborgs filed a medical malpractice action against the physicians, claiming that William died as a result of the negligence of Dr. Jenny, Dr. Borgnes, and Dr. Rebhan. The Weborgs sought damages for pain and suffering endured by William, funeral and burial expenses incurred by William's estate, and pecuniary losses and the loss of society and companionship sustained by William's surviving wife and three sons.

¶ 21 On September 8, 2009, the physicians filed motions in limine, seeking, inter alia, an order permitting the physicians to introduce at trial evidence of collateral source payments, namely, life insurance proceeds and social security benefits received by Theresa Weborg as a result of her husband's death. The physicians argued that Wis. Stat. § 893.55(7), clarified by this court in Lagerstrom v. Myrtle Werth Hospital–Mayo Health System, 2005 WI 124, 285 Wis.2d 1, 700 N.W.2d 201, expressly allows evidence of collateral source payments to be introduced in medical malpractice actions.

¶ 22 The Weborgs objected to the physicians' motion at a hearing on September 14, 2009. Relying on Lagerstrom, the Weborgs contended that the jury is not permitted to use evidence of collateral source payments to reduce its award of damages, and consequently, Theresa Weborg's receipt of life insurance proceeds and social security benefits has no relevance. In any case, the Weborgs argued, the evidence should be excluded under Wis. Stat. § 904.03 on the grounds of confusion and unfair prejudice.

¶ 23 The physicians countered that “the language of [Wis. Stat. § 893.55(7) ] is directory,” taking the admission of collateral source payments in medical malpractice actions out of the circuit court's discretion. Furthermore, the physicians maintained, the Lagerstrom court specifically mentioned life insurance proceeds as a type of payment encompassed by § 893.55(7).

¶ 24 The circuit court agreed. By a letter decision dated September 17, 2009, the circuit court granted the...

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