907 N.E.2d 974 (Ind. 2009), 45S05-0906-CV-273, Spar v. Cha

Docket Nº:45S05-0906-CV-273.
Citation:907 N.E.2d 974
Opinion Judge:BOEHM, Justice.
Party Name:Brenda SPAR, Appellant (Plaintiff below), v. Jin S. CHA, M.D., Appellee (Defendant below).
Attorney:Steven L. Langer, Tara M. Wozniak, Valparaiso, IN, Timothy J. Kennedy, Indianapolis, IN, Attorneys for Appellant. Robert D. Brown, Merrillville, IN, Attorney for Appellee.
Case Date:June 16, 2009
Court:Supreme Court of Indiana

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907 N.E.2d 974 (Ind. 2009)

Brenda SPAR, Appellant (Plaintiff below),


Jin S. CHA, M.D., Appellee (Defendant below).

No. 45S05-0906-CV-273.

Supreme Court of Indiana.

June 16, 2009

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[Copyrighted Material Omitted]

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Steven L. Langer, Tara M. Wozniak, Valparaiso, IN, Timothy J. Kennedy, Indianapolis, IN, Attorneys for Appellant.

Robert D. Brown, Merrillville, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A05-0611-CV-683

BOEHM, Justice.

We hold that, with possible exceptions not relevant here, incurred risk is not a defense to medical malpractice based on negligence or lack of informed consent. We also hold that the plaintiff's consents to prior surgeries were admissible to counter her lack-of-informed-consent claim to the extent that claim was based on failure to inform her of typical risks in the procedure. We reverse and remand for a new trial.

Facts and Procedural History

Brenda Spar brought this medical malpractice action against obstetrician/gynecologist Jin S. Cha, who performed laparoscopic surgery on Spar in 2001. Spar alleged negligence in failing to advise her of less risky procedures and also failure to obtain informed consent.

A. Spar's Prior Medical History

Spar underwent emergency surgery and spent approximately two months in an intensive care unit after an auto accident in 1986. She suffered a detached liver and her spleen was removed. Because the accident and subsequent surgeries resulted in extensive scarring to her abdomen, Spar consulted plastic surgeon McKay McKinnon shortly after her recovery. Dr. McKinnon performed a series of scar-revision procedures on Spar in 1987, 1989, 1991, and 1994. Before each procedure Dr. McKinnon and Spar discussed the risks of surgery, including bowel perforation, inflammation, infection, pain, and possible need for additional surgeries.

In 2000, after Spar experienced abdominal pain, she was diagnosed with gallstones and her gallbladder was removed in July of 2000. Before the procedure, general

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surgeon M. Nabil Shabeeb explained the risks of abdominal surgery, which included bleeding, infection, and injury to internal organs including the bowel and bile duct. Dr. Shabeeb first attempted to remove Spar's gallbladder laparoscopically, i.e., by creating an incision below Spar's navel, insufflating the abdomen using carbon dioxide gas, and viewing the internal organs by inserting a small camera. Spar's internal scarring from the prior surgeries prevented completion of the procedure laparoscopically, and a larger incision was made to permit viewing of the organs directly.

B. Consultation with and Treatment by Dr. Cha

Spar consulted Dr. Cha in 1999 and again in November of 2000 because of difficulty in conceiving a child. Dr. Cha suspected Spar's fallopian tubes were blocked and that she had endometriosis, a build-up of the uterine lining inside the pelvic cavity. Dr. Cha recommended a hysterosalpingogram (HSG), a real-time x-ray to identify obstruction of the fallopian tubes, but the results of the HSG were inconclusive. Dr. Cha suggested a laparoscopy to determine if Spar's fallopian tubes were clogged. He explained that a laparoscopy was a simple outpatient procedure and that if he found an abnormality he might be able to fix it. Dr. Cha was aware of Spar's earlier gallbladder removal and knew Dr. Shabeeb had been unable to complete that surgery laparoscopically.

The procedure was scheduled for January 12, 2001. After Spar had changed into a hospital gown, she completed and signed a consent form to " Video Laparoscopy Possible Laparotomy." The consent form, among other things, stated that the

nature, purpose and possible complications of the procedure(s) and medical services described above, the risks and benefits reasonably to be expected, and the alternative methods of treatments have been explained to me by a physician, and I understand the explanation I have received.

Spar first saw Dr. Cha that morning when she was on a gurney and hooked up to an I.V. outside the operating room. Dr. Cha explained how the surgery would be performed and told her that the procedure posed possible complications including bleeding, bowel injury, and infection. Spar told Dr. Cha that she did not want him to make any long incisions, which Dr. Cha took to mean she did not want a laparotomy, and Dr. Cha told Spar that he would make only two small cuts. A preoperative report reflects that Spar " refused laparotomy."

The laparoscopy was difficult because of Spar's scar tissue. Dr. Cha's field of vision was limited, but he diagnosed Spar with pelvic endometriosis, a bilateral tubal occlusion, and adenomyosis of the uterus. At the conclusion of the procedure, Dr. Cha was unaware of any complications.

C. Post-operative Complications

Spar was discharged after the surgery and was prescribed Tylenol with codeine for pain relief. The following day she experienced abdominal pain and nausea, and her husband, Christopher, called Dr. Cha to report this. Dr. Cha was concerned that Spar was experiencing a complication from the laparoscopy and recommended that Christopher bring her to the emergency room. Christopher responded that Spar did not want to come to the hospital, so Dr. Cha prescribed a new pain medication.

Spar took the medication as prescribed, but the next day she felt feverish and one of her incisions began to leak. Spar had Christopher contact Dr. Cha for an antibiotic, and again Dr. Cha told Christopher to bring her to the emergency room, but Spar declined. Dr. Cha called in a prescription for an antibiotic and told Christopher

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that if Spar was not feeling better by the next day she should come to the hospital.

The following morning, after Spar experienced increased leakage from her incision and severe abdominal inflammation, Christopher took her to the emergency room. Dr. Shabeeb performed an emergency surgery and determined that Spar's bowel had been perforated during the laparoscopy. A segment of Spar's bowel was removed, and her abdominal cavity was disinfected.

In the following weeks, Spar developed peritonitis, cysts, and fistulas and was hospitalized for five and one-half weeks. She returned to Dr. McKinnon the following June for cosmetic repair, and she required follow-up surgery in November 2001 to treat her cysts and remove an infected fallopian tube. She continues to experience periodic fever-like symptoms and severe bowel irregularity.

D. Spar's Malpractice Action

Spar initiated the present suit by submitting a complaint to a medical review panel in accordance with the Indiana Medical Malpractice Act, Ind.Code § 34-18-8-4 (2004). The panel unanimously found that Dr. Cha had failed to meet the standard of care, and the case proceeded to trial under two theories: (1) negligence in failing to employ alternative diagnostic procedures in lieu of surgery, and (2) failure to obtain Spar's informed consent to the chosen course of treatment.

Although the experts and medical review panel members agreed that bowel perforation commonly occurs during laparoscopy without negligence, Spar's witnesses testified that (1) because Spar was forty-one years old at the time of consultation and had a complicated history of abdominal surgery, Dr. Cha should have assessed Spar's ovarian function and her husband's sperm viability before considering any invasive diagnostic procedures; (2) Dr. Cha should not have performed the laparoscopy in view of Spar's medical history; (3) Dr. Cha should have referred Spar to an infertility specialist; (4) Dr. Cha should not have gone forward with the procedure after Spar expressed her aversion to large incisions outside the operating room; and (5) Dr. Cha should have insisted that Spar come into the emergency room rather than prescribing additional medication for postoperative abdominal pain.

The plaintiff's evidence on failure to obtain informed consent included testimony that Dr. Cha should have clarified that the surgery would not necessarily enhance Spar's fertility, that there were additional risks due to her prior abdominal procedures, and that alternative means of diagnosis and treatment were available, including ovarian reserve tests and in vitro fertilization. The plaintiff's witnesses also testified that informed consent should be obtained well in advance of surgery, not on the day of the procedure. Spar testified that she would not have consented to the laparoscopy had Dr. Cha informed her that other forms of testing and treatment were available, that the surgery would be purely diagnostic, and that even if the surgery were performed correctly, it could result in a bowel injury that would necessitate more serious operations.

Dr. Cha introduced expert testimony that he had complied with the applicable standard of care in treating Spar and obtaining her informed consent to the laparoscopy. Evidence of Spar's informed consent to the surgeries by Drs. McKinnon and Shabeeb was admitted over Spar's objection.

At the close of Dr. Cha's case-in-chief, the trial court denied Spar's motion for judgment on the evidence on the issue of

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incurred risk and instructed the jury as follows:

The Plaintiff incurs the risk of injury if she actually knew of the specific danger, understood the risk involved and voluntarily exposed herself to that danger. Incurred risk requires much more than the general awareness of a potential for mishap. Determining whether the Plaintiff has incurred the risk of injury requires a subjective analysis focusing upon:

First, the Plaintiff's actual knowledge and appreciation of a specific risk; and

Second, the Plaintiff's voluntary acceptance of that risk....

Dr. Cha's counsel argued in closing that " [t]he Judge has instructed you on incurred risk.... The risk at issue is infection.... Ms. Spar admits that she was told by Dr. Cha about the risk of...

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