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Appeals Court Upholds Birth Injury Verdict

courthouseA three-judge panel in the District IV Court of Appeals affirmed a jury verdict in a case of delivery room negligence, rejecting the defendant’s argument that the testimony of an expert witness did not meet the standard of admissibility for expert testimony.

The defendant, Dr. Kay Balink, had provided the plaintiff with prenatal care and had delivered the child, who suffered a vacuum-assisted birth injury that resulted in permanent damage.

Expert testimony covered shoulder dystocia risk factors

The jury found the defendant liable for nearly $900,000 in damages late in July 2015, thanks in part to the expert testimony of Dr. Jeffery Wener, who opined that Dr. Balink had breached the standard of care in providing prenatal care and delivery services. Dr. Wener testified that this breach of the standard of care ultimately resulted in the child’s brachial plexus injury, which has caused the child to suffer the permanent impairment of his left arm. According to Dr. Wener’s testimony, Dr. Balink was negligent in the delivery room for failing to perform an ultrasound for the purpose of estimating the fetal weight.

Furthermore, Dr. Wener asserted that Dr. Balink should have ordered a three-hour glucose test to ascertain whether the mother had gestational diabetes. Because of certain risk factors, Dr. Wener stated that Dr. Balink should not have performed a vacuum-assisted delivery.

Shoulder dystocia occurs when the infant’s head is delivered, yet the infant’s anterior shoulder remains lodged in the birth canal. This can cause injury to the brachial plexus, which is the network of nerves that begins in the neck and controls movement in the arm. One of the significant risk factors of shoulder dystocia is fetal macrosomia, or an abnormally large fetal size or weight. According to Dr. Wener, the defendant was negligent in failing to recognize the risk factors for shoulder dystocia and failing to provide an appropriate medical response. Typically, if a vaginal birth is deemed to be potentially unsafe for mother or child, the obstetrician may recommend an emergency C-section.

Defendant made numerous arguments upon appeal

On appeal, Dr. Balink argued that Dr. Wener’s testimony regarding the alleged negligence did not fulfill the Daubert standard for admissibility. The Daubert standard states that an expert witness may present an opinion or other testimony only if the testimony is based upon verifiable facts and if these facts resulted from reliable methods and principles. Additionally, the Daubert standard requires that the expert witness apply these reliable methods to the case-specific facts.

Dr. Balink’s appeal argued that Dr. Wener’s testimony failed to meet these standards and that it was based on his personal experiences or preferences. The court of appeals rejected this argument, noting that it was acceptable to “consider personal experience and knowledge when determining the reliability of expert testimony.”

Judge Paul Higginbottom of the appeals court further noted that, “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.”

  1. State Bar of Wisconsin, Physician’s Testimony Admissible in Med-Mal Case, Appeals Court Rules,

  2. Wisconsin Court System, Court of Appeals Decision,