In Swanson v. Gatzke (2018AP305), the Court of Appeals District III held that a circuit court erred in changing jury apportioned negligence in this dental malpractice case.

Mary Swanson was diagnosed with a dental disease that increases the patient’s susceptibility to tooth decay. Despite recommendations from several practitioners, Swanson did not see her dentist Dr. Gatzke regularly. Dr. Gatzke failed to diagnose tooth decay in Swanson’s teeth, forcing her to ultimately undergo a total restoration of her teeth. Swanson filed the instant lawsuit against Gatzke for dental malpractice.

At the circuit court trial, the jury found Swanson 60 percent negligent for her own injuries. According to Wisconsin’s contributory negligence laws (Wis. Stat. § 895.045), Swanson did not receive damages because her negligence was greater than Dr. Gatzke’s. However, the circuit court later determined that the jury did not properly apportion negligence and reapportioned negligence to 50 percent liability for both Swanson and Dr. Gatzke. The new apportionment allowed Swanson to recover damages.

The court of appeals determined that the circuit court erred in reapportioning negligence. Furthermore, the court declined to award Swanson a new trial. The appeals court determined there was sufficient evidence supporting the jury’s decision that Swanson’s negligence was greater than Dr. Gatzke’s.