In its unpublished opinion filed on October 24, 2016, the Court of Appeal of the State of California Second Appellate District Division One (“Appellate Court”) reversed a California medical malpractice defense verdict, finding that the trial judge had erroneously failed to instruct the jury with the plaintiff’s requested jury instruction regarding informed consent. The California medical malpractice plaintiff is a child who suffered a devastating stroke before she was delivered by Cesarean section at the defendant’s hospital.
The plaintiff contended on appeal that the trial court erred when it refused to instruct the jury regarding her theory of informed refusal, which was exacerbated by the defendant’s attempt to place responsibility on the plaintiff’s mother for delaying the Cesarean delivery. The Appellate Court stated, “given the state of the evidence, the insufficiency of other instructions to address the informed refusal theory, and counsel’s arguments, we conclude the trial court’s refusal to give the requested instruction prevented plaintiff from placing her full case before the jury and was, therefore, prejudicial.”
The California medical malpractice case involved the medical care and treatment a pregnant woman received in the defendant hospital during labor and delivery. Her child was born on June 21, 2005 by Cesarean section delivery after she spent many hours in the second stage of labor with little or no progress. Soon after the child was born, it was determined that the child had suffered a stroke that left her with hemiplegic cerebral palsy.
The mother testified during trial that up until the time she actually had the C-section delivery, no one ever told her that the baby was in distress, that there was any risk whatsoever to the baby by delaying the C-section, or that the baby’s heart rate had dropped so many times. The plaintiff further testified that she never refused to have a C-section and would have agreed to one without regard to her birth plan (to have a natural delivery) had she been advised of any danger.
The defense argued that the mother was to blame for the delay in having the C-section and that the defendant physicians were simply conforming to the mother’s birth plan.
At the conclusion of the California medical malpractice trial, the plaintiff requested that the trial judge instructs the jury regarding her theory that defendants were negligent for failing to advise her of the risks of delaying the child’s delivery by C-section after her second stage of labor became prolonged. The defense objected to the informed consent jury instruction, arguing that the plaintiff had not pled the lack of informed consent. The trial court refused to provide the plaintiff’s informed consent instruction to the jury, and the California medical malpractice jury returned a defense verdict. The plaintiff appealed.
The plaintiff argued on appeal that the trial court’s refusal to give her requested informed consent instruction deprived the jury of an instructional basis that would have permitted it to conclude that even if it was not below the standard of care to delay performing the caesarian delivery, it was below the standard of care not to inform plaintiff’s parents about the risks associated with that delay so that they could make an informed decision. The plaintiff argued that this was necessary in light of defense efforts to blame the mother for the delay in having the C-section and to claim the defendant physicians were simply conforming to the parents’ birth plan. The plaintiff further argued that the jury had no basis to consider whether the parents would have given different directions had they known about the risks associated with a delayed caesarean delivery.
The Appellate Court held that the plaintiff’s complaint alleged medical negligence in general terms broad enough to encompass the plaintiff’s informed refusal theory, which is merely one form of medical malpractice: the plaintiff’s theory was that the failure of the medical personnel to inform the mother of the risks entailed in delaying performance of the appropriate, advantageous, and inevitable procedure constituted negligence.
The Appellate Court noted that the defense witnesses repeatedly invoked their deference to the mother’s birth plan and attempted to depict the mother as being highly resistant to their efforts to convince her to have a C-section. Yet it was undisputed that no one informed the mother of any risk to her baby (or herself) from continuing to push instead of having the baby delivered by C-section. The Appellate Court held, “the evidence at trial not only supported, but demonstrated the necessity of the proposed instruction to inform the jury of plaintiff’s alternative theory of negligence as a basis for recovery. UCLA’s claim that informed refusal was never raised before plaintiff submitted her proposed instruction, which apparently convinced the trial court, was demonstrably false.”
The Appellate Court held that the plaintiff was prejudiced by the trial court’s refusal to instruct the jury with regard to informed consent: the plaintiff’s case essentially was based upon delay in performing the C-section and had two alternative theories: UCLA violated the standard of care either through the delay itself or by failing to inform the mother about the risk to her baby from delaying the C-section so that she could make an informed decision. The refused instruction was essential to provide the jury with a legal framework for liability on the latter theory, which was neither addressed by nor an obvious application of either the general medical negligence or standard of care instructions given.
The Appellate Court held, “Accordingly, given the state of the evidence, the insufficiency of other instructions to address the informed refusal theory, and counsel’s arguments, we conclude the trial court’s refusal to give the requested instruction prevented plaintiff from placing her full case before the jury and was, therefore, prejudicial.”
Source Ihly v. Regents of the University of California, B259042.
If a physician failed to obtain your informed consent regarding medical treatment or a medical procedure in California or elsewhere in the United States, you should promptly consult with a medical malpractice lawyer in California or in your state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.
Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you with your lack of informed consent claim.
Turn to us when you don’t know where to turn.