London Scott Barney v. Julie Mickelson, MD, 942 N.W.2d 891

London Barney was born with severe, permanent neurologic injuries after labor monitored with an external fetal heart monitor; plaintiffs alleged delayed recognition of fetal oxygen deprivation.
Plaintiffs argued Dr. Julie Mickelson should have switched from the external monitor to an internal fetal scalp electrode or pulse oximeter about 90 minutes before delivery.
Trial featured conflicting expert testimony (three key experts): plaintiffs’ expert said the external monitor was not accurately tracing the fetal heart; defense experts testified the external monitor was adequately tracing the fetal heart and that continuing its use was within the standard of care.
The circuit court, over plaintiffs’ objection, instructed the jury with the Wis JI—Civil 1023 "alternative methods" paragraph (permitting a physician to choose any recognized reasonable method).
The jury (2 dissenting jurors) found no negligence; the court of appeals reversed, holding the instruction was improper under Miller v. Kim because continuing the external monitor amounted to "doing nothing."
The Wisconsin Supreme Court reversed the court of appeals, holding the instruction was proper because the record contained substantial expert testimony that continuing the external monitor was a recognized reasonable alternative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the alternative methods instruction (Wis JI—Civil 1023) should have been given	Barney: Instruction was improper because Mickelson did not adopt an alternative method; continuing the external monitor was effectively "doing nothing."	Defendants: Evidence showed more than one recognized method existed and experts testified continuing the external monitor was a reasonable choice.	Court: Instruction proper—trial testimony created a factual dispute about reasonable alternatives, so jurors could find more than one recognized method.
Whether Miller v. Kim controls (i.e., instruction inappropriate when negligence is failure to act)	Barney: Miller applies; where experts say only one diagnostic method is reasonable, an "alternative methods" charge misleads the jury.	Defendants: Miller is distinguishable—here experts were not unanimous and defense experts identified the external monitor as an acceptable alternative.	Court: Miller inapplicable—record contained substantial, conflicting expert testimony, unlike Miller's unanimous-expert scenario.
Whether any erroneous instruction was prejudicial	Barney: The charge likely misled the jury and warrants a new trial.	Defendants: Any error was not shown to have prejudiced the verdict; instruction reflected the disputed evidence.	Court: No prejudicial error—instruction properly reflected factual disputes for the jury; verdict reinstated.

Nowatske v. Osterloh, 198 Wis. 2d 419 (1996) (upheld alternative methods instruction as proper when evidence supports multiple recognized methods)
Miller v. Kim, 191 Wis. 2d 187 (Ct. App. 1995) (alternative-methods instruction improper where experts unanimously identify only one reasonable diagnostic method)
Finley v. Culligan, 201 Wis. 2d 611 (Ct. App. 1996) (alternative-methods instruction given only when evidence allows jury to find multiple recognized methods)
Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743 (1975) (court must instruct on issues raised by the evidence)
State v. Poellinger, 153 Wis. 2d 493 (1990) (factfinder's role in resolving conflicting testimony)
Kochanski v. Speedway SuperAmerica, LLC, 356 Wis. 2d 1 (2014) (prejudicial error standard: an error is prejudicial when it probably misled the jury)