Klutschkowski v. Peacehealth

• Decision Date: 21 September 2011
• Docket Number: 160615518; A138722.
• Citation: 263 P.3d 1130,245 Or.App. 524
• Parties: Bobbi KLUTSCHKOWSKI and Kevin Klutschkowski, personally and as guardians ad litem for Braedon Klutschkowski, a minor child, Plaintiffs–Respondents,v.PEACEHEALTH, Defendant,andOregon Medical Group, P.C.; Amy McCarthy; Center for Women's Health, P.C.; Zena I. Monji; and Zena I. Monji, M.D., P.C., Defendants–Appellants.
• Court: Oregon Court of Appeals

245 Or.App. 524

263 P.3d 1130

Bobbi KLUTSCHKOWSKI and Kevin Klutschkowski, personally and as guardians ad litem for Braedon Klutschkowski, a minor child, Plaintiffs–Respondents,

v.PEACEHEALTH, Defendant,andOregon Medical Group, P.C.; Amy McCarthy; Center for Women's Health, P.C.; Zena I. Monji; and Zena I. Monji, M.D., P.C., Defendants–Appellants.

160615518; A138722.

Court of Appeals of Oregon.

Argued and Submitted July 8, 2010.Decided Sept. 21, 2011.

Janet M. Schroer and Matthew J. Kalmanson, Portland, argued the cause for appellants. With them on the briefs were Marjorie A. Speirs and Hoffman Hart & Wagner LLP.Richard M. Rogers, Portland, argued the cause for respondents. With him on the brief were Patrick L. Block and Rogers & Block, LLP.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.HASELTON, P.J.

Defendant Oregon Medical Group, P.C. (OMG) appeals a general judgment entered on a jury verdict in favor of plaintiffs Bobbi and Kevin Klutschkowski and their son Braedon Klutschkowski in this medical negligence action arising from the circumstances of Braedon's birth and a supplemental judgment awarding plaintiffs their costs and disbursements.¹ On appeal, OMG contends, inter alia, that the trial court erred in (1) denying its motion for a directed verdict and instructing the jury on plaintiffs' “informed consent claim”; (2) denying its motion to reduce the jury's award of noneconomic damages to $500,000 because application of the statutory cap— ORS 31.710—to plaintiffs' claim for prenatal injuries does not violate the remedy clause and jury trial provisions of the Oregon Constitution; and (3) awarding plaintiffs, as the prevailing party, their costs in preparing trial transcripts under ORS 21.470(5). As amplified below, we reject OMG's challenge to the trial court's denial of its motion for a directed verdict because OMG failed to demonstrate that it was prejudiced by the ruling and conclude that its challenge to the trial court's jury instruction concerning informed consent is unreviewable. Further, we conclude that the trial court erred in denying OMG's motion to reduce the jury's award of noneconomic damages and in awarding plaintiffs the cost of preparing daily trial transcripts. Accordingly, we reverse the general and supplemental judgments, in part, and remand for further proceedings.

Consistently with our standard in reviewing the denial of a motion for directed verdict, we view the evidence, including any inferences, in the light most favorable to the nonmoving party, here, plaintiffs. Hudjohn v. S & G Machinery Co., 200 Or.App. 340, 342, 114 P.3d 1141 (2005). In general terms, this negligence case concerns alleged complications arising from Braedon's birth by vaginal delivery and Braedon's alleged resultant injuries. To provide essential context, before turning to the particular facts, we begin by briefly describing a delivery complication that is at the heart of the dispute— viz., a shoulder dystocia.

A shoulder dystocia occurs when a baby's shoulder becomes stuck behind the mother's pubic bone. Generally, once a shoulder becomes stuck, doctors use obstetric maneuvers to attempt to facilitate the baby's delivery. Two such maneuvers are (1) the McRoberts maneuver, which involves flexing the mother's hips to change the angle of the pubic bone by bringing her legs back up against her chest, and (2) the Woods corkscrew maneuver, which involves the doctor placing his or her hands inside the mother's vagina on the baby's shoulders and turning or rotating the baby 180 degrees.

When a shoulder dystocia occurs, the baby is at risk of suffering a variety of injuries, including death. A brachial plexus injury is one of the most common and serious injuries that occurs with a shoulder dystocia.² Here, it is undisputed that Braedon has a brachial plexus injury.

Based on expert testimony at trial, a shoulder dystocia occurs approximately once in every 100 births. Of that group of children who experience a shoulder dystocia during delivery, 15 percent will suffer a brachial plexus injury, and, of that group, 10 to 15 percent will have a permanent injury. Significantly, for purposes of this case, once a shoulder dystocia occurs during a delivery, there is a significantly higher risk that a shoulder dystocia will occur in subsequent deliveries involving the same mother.

For those reasons, the standard of care in the medical profession requires that a doctor inform a mother who has had a previous shoulder dystocia of the increased risk of a subsequent shoulder dystocia and a brachial plexus injury to the baby occurring during a vaginal delivery and advise her to consider a cesarean section to reduce or avoid those risks. With that context in mind, we turn to the historic facts of this case.

On March 3, 1999, Bobbi, who was a patient of OMG, gave birth to her third child, Anna. Bobbi delivered Anna vaginally. Although Anna was unharmed, the delivery was complicated by a shoulder dystocia. Significantly, the doctor who delivered Anna specifically noted, in his report, that “[t]here was a shoulder dystocia managed by shoulder rotation maneuver with the patient's hips in a flexed position.” However, the doctor did not tell Bobbi about the shoulder dystocia, and Bobbi was unaware that a complication had occurred during the delivery.

Several years later, in 2002, Bobbi and Kevin married. Thereafter, in the spring of 2003, Bobbi became pregnant, and she scheduled an appointment with OMG in June. Because the doctor who had previously delivered her other children had since moved, Bobbi was scheduled to see Dr. Amy McCarthy, an obstetrician and employee of OMG.

In preparation for that appointment, Laura Carpenter, a medical assistant, reviewed OMG's medical records. Significantly, based on the doctor's report concerning Anna's delivery, Carpenter noted on the current pregnancy record that Anna's delivery had been complicated by a shoulder dystocia.

Soon after Bobbi arrived for her appointment, however, an ultrasound confirmed that Bobbi had suffered a miscarriage. Accordingly, McCarthy did not address potential obstetrical complications with Bobbi. Nevertheless, following the appointment, McCarthy dictated a report, noting, as part of Bobbi's past medical history, the shoulder dystocia that had occurred during Anna's delivery.

A few months later, Bobbi became pregnant with Braedon, and, in early October, she scheduled an appointment with McCarthy. Rebecca Manwill, a medical assistant, completed a new pregnancy record.³ Unlike Carpenter, who reviewed OMG's medical records for information about Bobbi's prior pregnancies, Manwill obtained that information from Bobbi, who, as previously noted, was unaware that a complication had occurred during Anna's delivery. In sum, the pregnancy record did not indicate that one of Bobbi's previous deliveries had been complicated by a shoulder dystocia.

Following that initial appointment in October, McCarthy managed Bobbi's pregnancy. On April 16, 2004, McCarthy determined that Braedon's size was large for his gestational age, and she ordered an ultrasound for further evaluation. Thereafter, on April 20, before the ultrasound was completed, OMG sent the current pregnancy record to the hospital at which Bobbi planned to deliver.

Three days later, on April 23, an ultrasound confirmed McCarthy's determination about Braedon's size. Specifically, the ultrasound indicated that his weight was approximately 3,964 grams, which was greater than the 97th percentile for babies of his gestational age.⁴ Because of Braedon's size, McCarthy believed that Bobbi “had a risk for a shoulder dystocia” during delivery and, on April 29, she and Bobbi discussed inducing labor. Ultimately, McCarthy scheduled an induction for early May.

According to McCarthy, she had “forgotten about the documentation” in OMG's records—including her own notation in the June 2003 report—concerning a shoulder dystocia during Anna's delivery. Instead, McCarthy relied on the current pregnancy record and Bobbi's statements concerning her previous pregnancies, neither of which indicated that a prior shoulder dystocia had occurred. For that reason, in their discussions on April 29, McCarthy did not inform Bobbi that there was an increased risk of a repeat shoulder dystocia and brachial plexus injury occurring during a vaginal delivery and that, to avoid those risks, she should consider a cesarean section. Had Bobbi been informed of those risks and the alternative of a cesarean section, she would have chosen to have a cesarean section.

On May 2, the day before the scheduled induction, Bobbi went into labor. Dr. Zena Monji, an obstetrician and employee of OMG, was on call that day. Monji reviewed Bobbi's pregnancy record, but, as noted, it did not include any reference to a previous shoulder dystocia or the results of the ultrasound, which indicated that Braedon was large for his gestational age. Monji testified that had she known about the prior shoulder dystocia and the results of the ultrasound, consistently with the standard of care, she would have informed Bobbi that there was an increased risk of a repeat shoulder dystocia and a brachial plexus injury and would have advised her to consider a cesarean section.

Ultimately, Bobbi delivered Braedon vaginally. As had previously occurred when Bobbi delivered Anna, a shoulder dystocia occurred during Braedon's delivery. Although Monji's report referred to a “[n]ormal spontaneous vaginal birth” and did not expressly refer to a shoulder dystocia, she noted that the “[s]houlders and body were delivered with a modified McRoberts maneuver.” ⁵ When Bobbi saw Braedon following his delivery, his right arm was bruised and discolored, and, although he was moving his left arm, his right arm “just laid there.”

Ultimately, Braedon was diagnosed with a permanent, disabling brachial plexus injury that occurred during his vaginal delivery and that would have...