Perez v. Hu

87 N.E.3d 1130

Francisco PEREZ, Jr., Individually, and by Laura Aguirre his natural guardian and next friend, and Laura Aguirre, Individually, Appellants–Plaintiffs,

v.Michael P. HU, M.D., and St. Catherine Hospital of East Chicago Indiana, Inc., an Indiana Not-for-Profit Corporation, Appellees–Defendants.

Court of Appeals Case No. 45A04–1701–CT–113

Court of Appeals of Indiana.

FILED November 17, 2017

Attorney for Appellants : Thomas L. Kirsch, Thomas L. Kirsch & Associates, P.C., Munster, Indiana

Attorney for Appellee Michael P. Hu, MD : Jeremy W. Willett, Michael E. O'Neill, O'Neill McFadden & Willett, LLP, Schererville, Indiana

Barnes, Judge.

Case Summary

[1] Laura Aguirre, on behalf of her son Francisco Perez, Jr., appeals the trial court's grant of a directed verdict in favor of Dr. Michael Hu. We reverse and remand.

Issue

[2] The restated issue before us is whether the trial court properly granted directed verdict in Dr. Hu's favor on the issue of whether Aguirre gave informed consent to give birth to Francisco vaginally rather than by caesarean section ("c-section").

Facts

[3] We present the evidence in a light most favorable to Francisco and Aguirre, in accordance with the standard of review for a directed verdict. Francisco is Aguirre's fourth child. Her previous three children all were born vaginally without complications, including her last child, who weighed over ten pounds.

[4] In early December 2009, Aguirre became the patient of Dr. Hu, an obstetrician-gynecologist ("OB–GYN"). Aguirre was seven months pregnant with Francisco at the time; her previous OB–GYN had moved her practice, and Dr. Hu took over Aguirre's care. Aguirre was diagnosed with gestational diabetes and was treated for it. Gestational diabetes increases the risk of having a significantly larger than average, or macrosomic, baby. The combination of gestational diabetes and a macrosomic baby significantly increases the risk of shoulder dystocia during a vaginal birth. Shoulder dystocia occurs when the baby's head exits the birth canal but one of the shoulders remains stuck behind the mother's pubic bone, necessitating additional efforts by the doctor to complete the birth. Shoulder dystocia may result in brachial plexus injury to the baby, which is nerve damage that can cause permanent paralysis or palsy to the affected limb. Such injury may occur as the result of the doctor having to use additional traction on the baby to resolve the shoulder dystocia. A pregnant mother's obesity also may increase the risk of shoulder dystocia during vaginal birth; Aguirre qualified as obese during her pregnancy. A c-section substantially reduces the risk of shoulder dystocia during birth.

[5] Aguirre, who has an elementary school education and does not speak English, does not recall Dr. Hu ever discussing the increased risk of harm to her baby during a vaginal birth as opposed to a c-section.¹ Rather, according to Aguirre, when she specifically asked Dr. Hu about the size of her baby and whether she would need a c-section, Dr. Hu said everything was fine and that she would not need one. She later testified, through an interpreter, "I told him that if [sic] everything was fine or if I was going to have operation. But he said that everything was fine. ... He didn't say anything about surgery." Tr. Vol. II pp. 69–71. Dr. Hu recalled that he did discuss with Aguirre the risks and benefits of vaginal birth versus c-section but recommended vaginal birth to her. Dr. Hu claimed to have documented this discussion with Aguirre in her medical chart, but any such documentation is missing from the chart.²

[6] On February 7, 2010, Aguirre went to the hospital for induction of labor, using the drug Pitocin to do so. The use of Pitocin to induce labor is an additional risk factor for shoulder dystocia during birth. Prior to her labor being induced, Aguirre signed a consent to treatment form, specifying that she was consenting to a vaginal delivery. Although Aguirre could not read the form because it was in English, it was translated for her by a phone translation service. The 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.

Ex. 3 p. 7.

[7] On February 8, 2010, Aguirre gave birth to Francisco. During the delivery, shoulder dystocia occurred. Dr. Hu had to apply additional pressure to Francisco's head to deliver him. Francisco weighed eleven-and-a-half pounds and had to be placed in the neonatal intensive care unit of a different hospital for ten days. The shoulder dystocia resulted in brachial plexus injury to Francisco's left arm. Francisco underwent two operations to attempt to correct that injury, but they were unsuccessful and he is unable to use that arm.

[8] On February 2, 2012, Francisco and Aguirre filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Dr. Hu and the hospital where Francisco was born. The proposed complaint alleged negligence by Dr. Hu and the hospital in Aguirre's prenatal care and the delivery of Francisco. It also alleged that Dr. Hu failed to provide sufficient information to Aguirre to have allowed her to give informed consent to vaginal delivery versus a c-section. On July 16, 2014, a medical review panel unanimously opined that the evidence did not establish that Dr. Hu "failed to meet the applicable standard of care as charged in the complaint." Appellee's App. p. 37.

[9] On September 12, 2014, Francisco and Aguirre filed a complaint against Dr. Hu and the hospital, largely mirroring their proposed complaint. A jury trial was held on October 31, 2016, to November 4, 2016. During trial, Aguirre presented the expert testimony of Dr. Bruce Halbridge; Dr. Halbridge is a long-time practicing OB–GYN and also currently a clinical instructor at the University of Texas–San Antonio medical school. He testified that he has delivered approximately 10,000 babies, that approximately 600 deliveries involved shoulder dystocia, but that none of those babies had brachial plexus injury. He stated that Aguirre had several risk factors associated with a significant increase in shoulder dystocia, including maternal obesity, gestational diabetes, a macrosomic fetus, and the induction of labor using Pitocin. Dr. Halbridge also explained that, if a mother is a diabetic, there is a three percent chance of shoulder dystocia during delivery; but, if a mother is diabetic and is giving birth to a macrosomic baby weighing more than ten pounds, the risk of shoulder dystocia increases to ninety-five percent.³

[10] Dr. Halbridge went on to testify that, given Aguirre's risk factors, Dr. Hu 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. As he explained:

He could have told the patient that you've got this big baby, you've had uncontrolled diabetes, you have all these risk factors, and then explain what a shoulder dystocia is and what happens if the baby is born and the brachial plexus is injured, that it's a permanent injury. And he could have recommended, and should have recommended, a c-section delivery. Because if you get a shoulder dystocia during a c-section, you can actually cut more room. You can make the opening in the uterus bigger and get the baby out easily. So, it's not as dangerous as a shoulder dystocia vaginally, where you can't cut the bone and make more room at the top of the womb.

Tr. Vol. II p. 156. He further stated that there was no indication in Aguirre's medical chart that Dr. Hu ever had such a discussion with Aguirre. Dr. Halbridge did not specifically testify about the general risks of a c-section versus vaginal delivery.⁴ He did testify as follows:

Q: In your experience, when you tell a mother that there's a one percent chance in your personal experience, if you tell your mother there's a one percent chance of her baby having a serious injury if you proceed one way or the other way, what does the mother tell you?

A: Mother will become fearful and the mother will choose the method eliminates [sic] the risk, even if it's just one percent.

Tr. Vol. III p. 149. Additionally, Aguirre testified that, if she had known the risk of injury to her baby by vaginal delivery, she would have chosen to have a c-section.

[11] After Aguirre's presentation of evidence, the hospital moved for directed verdict in its favor, which the trial court granted. Aguirre does not appeal that ruling. Also, Dr. Hu moved for a partial directed verdict, only as to the informed consent issue. The trial court took this matter under advisement but granted it after Dr. Hu's presentation of evidence. The jury then returned a verdict in Dr. Hu's favor on the remaining negligence claim against him. Aguirre now appeals the directed verdict in favor of Dr. Hu.

Analysis

[12] Motions for directed verdict, also called motions for judgment on the evidence, are controlled by Indiana Trial Rule 50(A). Think Tank Software Dev. Corp. v. Chester, Inc., 30 N.E.3d 738, 744 n.4 (Ind. Ct. App. 2015), trans. denied. That rule provides in part:

Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to

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