Klutschkowski v. Peacehealth

Decision Date26 September 2013
Docket NumberSC S059869).,(CC 160615518,CA A138722
Citation311 P.3d 461,354 Or. 150
PartiesBobbi KLUTSCHKOWSKI and Kevin Klutschkowski, personally and as guardians ad litem for Braedon Klutschkowski, a minor child, Petitioners on Review, Cross–Respondents on Review, v. PEACEHEALTH; Amy McCarthy; Center for Women's Health, P.C.; Zena I. Monji; and Zena I. Monji, M.D., P.C., Defendants, and Oregon Medical Group, P.C., Respondent on Review, Cross–Petitioner on Review.
CourtOregon Supreme Court


Held Unconstitutional

West's Or.Rev. Stat. Ann. § 31.710(1).

On review from the Court of Appeals.*

Kathryn H. Clarke, Portland, argued the cause and filed the brief for petitioners on review/cross-respondents on review. With her on the brief were Richard M. Rogers and Patrick L. Block, Portland.

Matthew J. Kalmanson and Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and filed the briefs for respondent on review/cross-petitioner on review. With them on the briefs was Marjorie A. Speirs.

W. Eugene Hallman, Pendleton, filed the brief for amicus curiae Oregon Trial Lawyers Association.


Plaintiffs brought this medical malpractice action to recover for injuries that their son sustained during delivery. On review, the issues are whether ORCP 59 H limits an appellate court's ability to review objections to a trial court's instructional rulings and whether a statutory cap on noneconomic damages constitutionally can be applied to actions brought by children injured during birth. The Court of Appeals held that, because defendant had not excepted to the trial court's rulings as ORCP 59 H requires, it could not seek appellate review of those rulings. Klutschkowski v. PeaceHealth, 245 Or.App. 524, 543–44, 263 P.3d 1130 (2011). The Court of Appeals also explained that, because the common law did not recognize a cause of action in 1857 for injuries a child sustained during birth, Article I, sections 10 and 17, of the Oregon Constitution do not limit the legislature's authority to cap the damages resulting from those injuries; the Court of Appeals accordingly held that the trial court should have applied a statutory cap to the jury's award of noneconomic damages. Id. at 548–49, 263 P.3d 1130. We allowed the parties' cross-petitions for review and now reverse the Court of Appeals decision to the extent that it reduced the jury's award of noneconomic damages.


We set out the facts consistently with the jury's verdict. See Mead v. Legacy Health Sys., 352 Or. 267, 269 n. 2, 283 P.3d 904 (2012); Delaney v. Taco Time Int'l, 297 Or. 10, 12, 681 P.2d 114 (1984). Mother and father have four children. When mother gave birth to her fourth child Braedon, he sustained an injury to the nerves that control the use of his arm. That injury is more likely to occur when a condition known as a shoulder dystocia has occurred during a previous delivery and when the child's fetal size exceeds a certain weight.

A shoulder dystocia occurs when an infant's shoulder becomes stuck behind the mother's pubic bone as the infant travels down the birth canal. When a shoulder dystocia occurs, the delivering physician customarily uses one of two maneuvers (the McRoberts maneuver or the Woods corkscrew maneuver) to free the infant's shoulder and complete the delivery. 1 Those maneuvers and the traction resulting from the shoulder dystocia can stretch and sometimes injure the infant's brachial plexus, a network of nerves that run from the area of the spine around the infant's neck and control the movement of the infant's arm. Once a shoulder dystocia has occurred during a delivery, the risk of a brachial plexus injury in a subsequent delivery increases; it is ten times more likely that another shoulder dystocia will occur during a subsequent delivery.

The second factor that increases the risk of a brachial plexus injury is the infant's fetal size. An infant whose fetal size exceeds 3500 to 4000 grams is more likely to sustain a brachial plexus injury during birth because of the increased traction that a relatively large infant experiences as he or she travels through the birth canal. The expert medical testimony in this case permitted the jury to find that, when those two risk factors are present, the standard of care requires an obstetrician to inform an expectant mother of the risk of a brachial plexus injury if she delivers the child vaginally and to discuss the option of proceeding with a caesarian delivery, commonly known as a C-section.

In 1999, mother gave birth to her third child Anna. When Anna was born, she weighed 4135 grams, and her delivery was complicated by a shoulder dystocia. Dr. Powell, the obstetrician who delivered Anna, worked for defendant Oregon Medical Group (defendant or the Medical Group). Powell diagnosed the shoulder dystocia but did not mention it to mother. In the hospital chart, he documented that [t]here was a shoulder dystocia [which he] managed by shoulder rotation maneuver with the patient's hips in a flexed position.” 2 Anna did not suffer any injuries as a result of the shoulder dystocia.

Five years later, in 2004, mother became pregnant with her fourth child Braedon. By that time, Powell no longer worked for the Medical Group, and mother began seeing a new obstetrician employed by the group, Dr. McCarthy. When McCarthy began providing prenatal care to mother, McCarthy reviewed the hospital file from Anna's delivery in 1999. That file contained Powell's notation that a shoulder dystocia had occurred, a notation that McCarthy transferred to Braedon's prenatal records. McCarthy, however, did not tell mother of the increased risk of another shoulder dystocia and a brachial plexus injury, nor did she discuss with mother that, because of that risk, she may want to consider a C-section.

During the third trimester of mother's pregnancy with Braedon, McCarthy observed that Braedon was “large for [his] gestational age.” To determine Braedon's actual size, McCarthy ordered an ultrasound, which revealed that Braedon weighed 3964 grams. Because mother was concerned about the size that Braedon would reach by the time she went into labor, she asked, and McCarthyagreed, to induce labor early. However, after receiving the results of the ultrasound, McCarthy did not tell mother that the baby's fetal size increased the risk of a shoulder dystocia and a brachial plexus injury, even though that risk factor and the earlier shoulder dystocia were both present. By that time, McCarthy had forgotten that a shoulder dystocia had occurred during Anna's delivery.

Mother went into labor before it was scheduled to be induced. When she arrived at the hospital, McCarthy was unavailable; so, Dr. Monji, the on-call obstetrician, assumed responsibility for delivering Braedon. (Monji was also an employee of the Medical Group.) When Monji spoke with mother before the birth, she asked mother whether there had been any complications in her previous deliveries. Mother replied that there had not been. Additionally, the prenatal record that the Medical Group sent to the hospital did not contain the notation of the earlier shoulder dystocia or the results of the ultrasound and fetal size determination. Monji accordingly did not discuss with mother the risks of proceeding with a vaginal delivery rather than a C-section.

During Braedon's delivery, a shoulder dystocia occurred. According to Monji's delivery notes, Braedon was delivered “with a modified McRoberts maneuver.” At one point during Braedon's delivery, Monji asked father, who was in the delivery room, to help “get [mother's] legs way back,” “up close to her chest,” a request that was consistent with using a McRoberts maneuver to deliver Braedon. Father testified at trial that, at a later point during the delivery, he saw Monji “plac[e] her hands around Braedon's [head]—underneath Braedon's jaw around his neck, and [she] was pulling.” At that point, father “thought that maybe something was wrong.”

Braedon was born with bruises on his right arm, shoulder, and areas of his chest. After the delivery, the range of motion in his right arm was limited, and he was transferred to the neonatal intensive care unit for observation. When he was released from the neonatal unit the next day, Braedon's color had substantially returned to normal, but the range of motion in his right arm remained limited. Braedon was eventually diagnosed with a brachial plexus injury, an injury that has substantially impaired Braedon's use of his right arm.

Mother and father (plaintiffs) filed this action for medical malpractice against the Medical Group and various other defendants.3 Before trial, they amended the complaint to allege claims against only the Medical Group, Dr. Monji, and Dr. McCarthy. The day before trial, they dismissed their claims against Monji and McCarthy, leaving the Medical Group as the only defendant. Plaintiffs alleged that the Medical Group was negligent:

[ (1) ] In failing to inform [mother] that the occurrence of shoulder dystocia in the March 3, 1999, delivery and the fetal size determination by Dr. McCarthy and by the April 23, 2004, ultrasound increased the risk of shoulder dystocia occurring in a vaginal delivery of Braedon Klutschkowski;

[ (2) ] In failing to inform [mother] that there was increased risk of Braedon Klutschkowski suffering a brachial plexus injury if shoulder dystocia occurred during his delivery;

[ (3) ] In failing to offer [mother] the option of a C-section as an alternative to a vaginal delivery of Braedon Klutschkowski;

[ (4) ] In failing to document in [mother's] pregnancy record for her pregnancy with Braedon Klutschkowski the occurrence of shoulder dystocia during the March 3, 1999, delivery; [and]

[ (5) ] In failing to inform Dr. Monji of the occurrence of the shoulder dystocia in [mother's] March 3, 1999, delivery, of Dr. McCarthy's assessment of Braedon's fetal size as large for...

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