On November 17, 2017, the Court of Appeals of Indiana (“Indiana Appellate Court”) reversed the trial court’s directed verdict in favor of the defendant obstetrician in an Indiana medical malpractice case that also alleged that the defendant had failed to obtain the plaintiff’s informed consent to give birth vaginally rather than by Cesarean section delivery.
The plaintiff was seventh months pregnant with her fourth child (her three prior deliveries were vaginally without complications, including her last child, who weighed over ten pounds) when she became the patient of the defendant OB-GYN. The plaintiff was diagnosed with gestational diabetes, which increases the risk of having a significantly larger than average (macrosomic) baby. The combination of the plaintiff’s gestational diabetes, her obesity during pregnancy, and a macrosomic baby significantly increased the risk of shoulder dystocia during a vaginal birth, which may result in a brachial plexus injury to the baby.
The plaintiff did not recall the defendant OB-GYN ever discussing with her the increased risk of harm to her baby during a vaginal birth as opposed to a Cesarean section delivery (“C-section”) but did recall specifically asking the defendant about the size of her baby and whether she would need a C-section, to which the defendant allegedly responded that everything was fine and that she would not need a C-section. The defendant, however, recalled discussing with the plaintiff the risks and benefits of vaginal birth versus C-section but recommended vaginal birth to the plaintiff (the defendant alleged that he documented this discussion with the plaintiff in her medical chart, but any such documentation was missing from the plaintiff’s chart).
On February 7, 2010, the plaintiff went to the hospital for induction of labor using Pitocin (the use of Pitocin to induce labor is an additional risk factor for shoulder dystocia during birth).
Prior to her labor being induced, the plaintiff signed a consent to treatment form, specifying that she was consenting to a vaginal delivery, which consent form stated in part: “I understand this authorization and the reason why the operation is necessary, the possible complications and risk involved, the possible alternative approach(es) to this surgical method, and I acknowledge that no guarantee or assurance has been made as to results or cure … Possible complications have been explained to me by my physician. I understand the material risks of this procedure. I also understand this is not intended to be an all inclusive list of possible complications associated with this procedure, and although less likely, other unforeseen complications may occur. I understand that medicine is not an exact science and that no guarantees can be made as to the outcome of this surgery.”
During the February 8, 2010 delivery, the baby suffered shoulder dystocia due to additional pressure applied to the baby’s head in order to deliver him vaginally. The baby weighed eleven-and-a-half pounds and was admitted to the neonatal intensive care unit of a different hospital for ten days. The baby’s shoulder dystocia resulted in a brachial plexus injury to his left arm that required two surgeries to attempt to correct the injury, but the surgeries were unsuccessful and the child is unable to use his left arm.
The plaintiff subsequently filed an Indiana medical malpractice lawsuit on her own behalf and on behalf of her son, including a claim that the defendant OB-GYN failed to provide sufficient information to the plaintiff to have allowed her to give informed consent to vaginal delivery versus a C-section.
During the Indiana medical malpractice jury trial, the plaintiff’s medical expert testified that, given the plaintiff’s risk factors, the defendant should have advised her of the risk of shoulder dystocia and resulting brachial plexus injury occurring during vaginal birth and the reduced risk of such injury during a C-section.
At the conclusion of the plaintiff’s presentation of her case, the defendant moved for a partial directed verdict as to the informed consent issue, which the trial court granted after the defendant’s presentation of evidence. The Indiana medical malpractice jury then returned a verdict in the defendant’s favor on the medical negligence claim against him. The plaintiff appealed the directed verdict in favor of the defendant.
The Indiana Appellate Court Decision
The Indiana Appellate Court stated that a directed verdict is proper only if all or some of the issues are not supported by sufficient evidence; the appellate court reviews only the evidence and the reasonable inferences that may be drawn therefrom that are most favorable to the nonmovant, and the motion should be granted only where there is no substantial evidence supporting an essential issue in the case (a directed verdict or judgment on the evidence is improper if there is evidence that would allow reasonable people to differ as to the result).
Indiana Informed Consent Claim
The Indiana Appellate Court applied a five-element framework for proving informed consent claims: (1) nondisclosure of required information; (2) actual damage; (3) resulting from the risks of which the patient was not informed; (4) cause in fact, or proof that the plaintiff would have rejected the medical treatment if he or she had known of the risk; and (5) that reasonable persons, if properly informed, would have rejected the proposed treatment.
Is Expert Testimony Required For An Informed Consent Claim?
The Indiana Appellate Court stated that no expert testimony would be required with respect to whether a particular disclosure did or did not occur, nor as to whether the plaintiff herself would have chosen different treatment if she had known of the risk involved with the performed treatment. On the other hand, expert testimony generally is required to determine what a reasonably prudent physician should tell a patient before performing a medical procedure, unless the matter is within a layperson’s understanding. In addition, whether actual damage was caused as a result of an inadequate disclosure generally is a matter requiring expert opinion.
What a physician must disclose to a patient also is enumerated by Indiana statute, and includes:
(1) The general nature of the patient’s condition.
(2) The proposed treatment, procedure, examination, or test.
(3) The expected outcome of the treatment, procedure, examination, or test.
(4) The material risks of the treatment, procedure, examination, or test.
(5) The reasonable alternatives to the treatment, procedure, examination, or test.
Ind. Code § 34-18-12-3.
In the present case, the Indiana Appellate Court held that the plaintiff’s expert’s testimony clearly provided evidence, though disputed by the defendant, that the plaintiff’s baby was at high risk of encountering shoulder dystocia and resulting brachial plexus injury during a vaginal birth, that she should have been advised of that risk, and that she should have been advised that a C-section, while not eliminating the possibility of shoulder dystocia, would greatly reduce the risk of brachial plexus injury. The plaintiff’s expert also believed that the plaintiff should have been expressly advised to have a C-section.
The Indiana Appellate Court stated that through a combination of the plaintiff’s lay testimony and her expert’s review of her medical chart, there was evidence that the defendant did not convey the required information and advice to the plaintiff. Furthermore, there was expert testimony that the decision to have a vaginal delivery rather than a C-section did, in fact, result in a difficult-to-resolve shoulder dystocia that left the baby with a brachial plexus injury and permanent, severe damage to his left arm. There was also the plaintiff’s testimony that she would have elected to have a C-section rather than a vaginal delivery if she had known of the significant reduction of a risk of harm to her baby by having a C-section. The Indiana Appellate Court held that this evidence satisfies the first four of the five elements for an informed consent claim, which was evidence sufficient to defeat a motion for directed verdict.
The Indiana Appellate Court stated that the remaining issue was whether the plaintiff had to present expert testimony in support of the element that a properly informed reasonable person would have rejected the defendant’s proposed treatment: whether an objectively reasonable person would have chosen to have a C-section rather than a vaginal delivery.
The Indiana Appellate Court noted that there are disputed issues of fact in this case whether the defendant OB-GYN adequately explained the risks of a vaginal delivery to the plaintiff and the reasonable alternative of having a C-section instead: it makes little sense that the plaintiff could be bound by a consent form stating that she had been told of “the possible complications and risk involved, the possible alternative approach(es) to this surgical method,” and that she “understand[s] the material risks of this procedure” if she is able to prove that she was unaware of and not told of certain risks, possible complications, and an alternative treatment (even if a rebuttable presumption of informed consent arose in this case because of the consent form, the plaintiff presented evidence that could have rebutted that presumption in the eyes of a jury).
The Indiana Appellate Court concluded: “[The plaintiff] presented sufficient evidence that [the defendant] did not convey adequate information to her regarding a significant risk of injury to her baby if she delivered vaginally rather than by c-section. Therefore, the trial court erroneously granted [the defendant’s] motion for directed verdict on the issue of informed consent. We reverse and remand for further proceedings on that issue.”
Source Perez v. Hu, Court of Appeals Case No. 45A04-1701-CT-113
If you believe that you suffered harm as a result of a medical provider’s failure to obtain your informed consent for medical treatment, you should promptly find a medical malpractice lawyer in your U.S. state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.
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