¶1¶ 58. (concurring). I agree with the majority's analysis and disposition of the present case. I write separately, however, to address this court's recent reformulation of the harmless error test. See majority op. at ¶ 51.
¶2¶ 59. For the reasons stated in Justice Crooks' concurring opinion in Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727, which I joined in full, I am confident that the harmless error test with which this court long has grappled should be understood in terms of "probability" rather than "possibility":
An error will not provide grounds for reversal or a new trial unless the error is significant enough to undermine confidence in the outcome of the proceeding at issue. An error is significant enough to undermine confidence in the outcome if there is a reasonable probability that without the error, the outcome would have been different.
¶3*60¶ 60. Although this formulation of the harmless error test is more stringent than the majority's "reasonable possibility" test, I nonetheless agree with the majority that the error in this case requires us to remand this case for a new trial on the issue of damages. As the majority indicates, although the evidence regarding the amounts paid by the plaintiff s insurers was inadmissible and prejudicial, it became central in the dispute over the appropriate amount of medical expenses that the jury should award. See majority op. at ¶¶ 51-55. As such, I conclude that without the erroneous admission of this evidence, there is a reasonable probability that the damages awarded by the jury would have been different. The error in this case was significant enough to undermine confidence in the outcome below.
¶4¶ 61. (dissenting). While I join Justice Diane S. Sykes' dissent, I write separately to express my concerns about the majority's standard for harmless error. See majority op. at ¶ 51. The majority's standard is "whether there is a reasonable possibility that the error contributed to the outcome," and that a "reasonable possibility" is one "sufficient to 'undermine confidence in the outcome.'" Id. (quoting State v. Dyess, 124 Wis. 2d 525, 545, 370 N.W.2d 222 (1985)). Since the standard for harmless error is the same for civil, as well as criminal, cases (Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986)), it is imperative that the standard be accurately conveyed.
¶5¶ 62. For at least the past 35 years, this court has wrestled with formulating a standard for harmless error. See, e.g., Pulaski v. State, 24 Wis. 2d 450, 456-57, *61129 N.W.2d 204 (1964); State v. Spring, 48 Wis. 2d 333, 339-40, 179 N.W.2d 841 (1970); Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973); State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987). In an attempt to formulate a single, uniform test for harmless error, Dyess"conclude[d] that the test of prejudice as formulated in Strickland subsumes the various statements of the harmless error test that this court has used over the years." Dyess, 124 Wis. 2d at 545.
¶6¶ 63. There can be no doubt that there is a significant difference between what is reasonably probable and what is reasonably possible. "A possibility test is the next thing to automatic reversal." Wold, 57 Wis. 2d at 356-57.
¶7¶ 64. I do not take issue with the term "reasonable possibility," so long as it is made clear that this term means reasonable probability, and probability is the standard to be applied. Accordingly, I offer the following test for harmless error, which makes clear that Dyess' use of the term "reasonable possibility" is intended to require "reasonable probability":'
Wisconsin Stat. § 805.18(2) provides that an error requires reversal only where it has "affected the substantial rights of the party" claiming error. We have long recognized that the focus of a court's analysis under this statute is whether, in light of the applicable burden of proof, the error is significant enough to "undermine confidence in the outcome" of the trial. Dyess, 124 Wis. 2d at 544-45. An error is significant enough to undermine confidence in the outcome if there is a reasonable probability of a different outcome without the error. Dyessmade it clear that "probability" is substantially the same as "possibility" under Wisconsin law. Id. at 544.
¶8¶ 65. That Wisconsin courts have often used "reasonable possibility" rather than "reasonable probability" should not dissuade the court from correcting such missteps today. See, e.g., State v. Sullivan 216 Wis. 2d 768, 792, 576 N.W.2d 30 (1998); State v. Alexander, 214 Wis. 2d 628, 653, 571 N.W.2d 662 (1997). There is no time like the present — dum fervet *64opus
¶9¶ 66. For the reasons stated herein, I respectfully dissent.
¶10Dyess' single test for harmless error standard has not been without controversy. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985). In addition to the majority opinion's discussion of Dyess' harmless error standard, authored by Justice Day, in State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987), Chief Justice Heffernan, Justice Day, Justice Abrahamson, and Justice Callow separately concurred on the Dyessissue. The controversy has continued. See State v. Dodson, 219 Wis. 2d 65, 92-98, 580 N.W.2d 181 (1998) (Crooks, J., concurring, joined by Justice Steinmetz and Justice Wilcox).
¶11See also Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727; Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698; Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768; and Nommensen v. American Cont'l Ins. Co., 2001 WI 112, 246 Wis. 2d 132, 629 N.W.2d 301. (I have written dissents or concurrences in these cases.) But see State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223(Strickland's probability sufficient to undermine the confidence in the outcome test used to determine ineffective assistance of counsel claim).
¶12 According to my research, on few occasions since Dyesshas this court, in a majority opinion, noted that reasonable possibility means reasonable probability. See State v. Armstrong, 223 Wis. 2d 331, 372 n.40, 588 N.W.2d 606 (1999); see also State v. Huntington, 216 Wis. 2d 671, 695-96, 575 N.W.2d 268 (1998). However, several court of appeals opinions have applied the Dyess harmless error test using the correct "reasonable probability" standard. See, e.g., State v. A.H., 211 Wis. 2d 561, 569, 566 N.W.2d 858 (Ct. App. 1997); State v. Joseph P., 200 Wis. 2d 227, 237, 546 N.W.2d 494 (Ct. App. 1996).
¶13 Wold's "reasonable probability" test for harmless error was replaced by Dyess’ "reasonable possibility" test.
¶14 "While the action is fresh; in the heat of action." Black's Law Dictionary 518 (7th ed. 1999).
¶15¶ 67. (dissenting). I respectfully dissent, for the reasons stated in my dissent in Ellsworth v. Shelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 76 (Sykes, J., dissenting).
¶16¶ 68. As in Ellsworth, I agree with the majority here that the collateral source rule applies. The main focus of the analysis is the proper measure of damages for past medical expenses in a personal injury case, and also the influence of the law of subrogation.
¶17¶ 69. I conclude, as I did in Ellsworth, that the proper measure of medical damages is the amount reasonably and necessarily incurred for the care and treatment of the plaintiffs injuries, not an artificial, higher amount based upon what the plaintiff might have incurred if he or she had a different sort of health plan or no health plan at all. See Ellsworth, 2000 WI 63, ¶¶ 27, 31 (Sykes, J., dissenting). It is inconsistent with the "make whole" function of compensatory damages to enrich a plaintiff by measuring medical expense damages by reference to their highest retail value rather than what was actually incurred. Id. at ¶¶ 23, 31.
¶18¶ 70. The purpose of the collateral source rule is to prevent payments made on behalf of the plaintiff from inuring to the benefit of the defendant. Majority op. at ¶ 29; see also Ellsworth, 2000 WI 63, ¶ 7. That *65purpose is not served by completely disengaging the measure of medical damages from the facts and requiring the defendant to pay an amount in excess of what was actually incurred by the plaintiff or absorbed by someone else (employer, insurer, government or charity) on the plaintiffs behalf.
¶19¶ 71. The purpose of subrogation is to prevent double recovery. Majority op. at ¶ 33; see also Ells-worth, 2000 WI 63, ¶ 18.1 see little difference between double recovery and the inflated recovery that results in the circumstances of this case. Where subrogation is present and the application of the collateral source rule would defeat its purposes, subrogation trumps the collateral source rule. See id.at ¶25 n.1 (Sykes, J., dissenting) (citing Jindra v. Diederich Flooring, 181 Wis. 2d 579, 511 N.W.2d 855 (1994); Voge v. Anderson, 181 Wis. 2d 726, 512 N.W.2d 749 (1994); Rixmann v. Somerset Pub. Sch., 83 Wis. 2d 571, 266 N.W.2d 326 (1978); and Lambert v. Wrensch, 135 Wis. 2d 105, 399 N.W.2d 369 (1987), relying on Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973)).
¶20¶ 72. The majority cites Thoreson v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 231, 243, 201 N.W.2d 745 (1972) and McLaughlin v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 31 Wis. 2d 378, 395, 143 N.W.2d 32 (1966) for the proposition that the measure of medical damages is the "reasonable value" of the medical services rendered, regardless of whether the plaintiff incurred, was charged or paid for those services. This may make sense as a measure of damages in cases — like Thoresonand McLaughlin— where there is no actual charge by which to measure damages because the plaintiff's medical costs were gratuitously absorbed by another (the welfare *66department in Thoresonand the plaintiffs religious order in McLaughlin).
¶21¶ 73. But Thoresonacknowledged that in most cases the measure of damages is the actual expense incurred or charged. Thoreson, 56 Wis. 2d at 243-44; see also Ellsworth, 2000 WI 63, ¶ 15. And here, as in most cases, there was an actual amount incurred (a small amount by the plaintiff and a larger amount by his insurers), and that amount came to a total of $66,062.58. I see no justification, either in the collateral source rule or the law of subrogation, for simply disregarding that actual amount and instead allowing recovery of an artificial, higher amount — $187,931.78—that no one ever has or ever will incur.
¶22¶ 74. As I said in Ellsworth, "the measure of damages is not what the highest payor would have paid for the same medical services but what was actually incurred in the care and treatment of the plaintiff's injuries. . . .By this measure, the defendant is not relieved of responsibility for his tortious conduct, and the plaintiff is made whole." Id. at ¶ 31 (Sykes, J., dissenting). I reach the same conclusion here, and would affirm the circuit court.