Wheeldon v. Madison

• Decision Date: 06 September 1985
• Docket Number: Nos. 14387,14444,s. 14387
• Citation: 374 N.W.2d 367
• Court: South Dakota Supreme Court
• Parties: Mark A. WHEELDON and Sandra L. Wheeldon, and Mark A. Wheeldon as Special Administrator of the Estate of Heather Briann Wheeldon, Deceased, Plaintiffs and Appellants, v. Dean L. MADISON, and Obstetrics & Gynecology, Ltd., a South Dakota Corporation, Defendants and Appellees.

Page 367

374 N.W.2d 367

Mark A. WHEELDON and Sandra L. Wheeldon, and Mark A.

Wheeldon as Special Administrator of the Estate of Heather Briann Wheeldon, Deceased, Plaintiffs and Appellants, v. Dean L. MADISON, and Obstetrics & Gynecology, Ltd., a South

Dakota Corporation, Defendants and Appellees.

Nos. 14387, 14444.

Supreme Court of South Dakota.

Argued Oct. 24, 1984.

Decided Sept. 6, 1985.

Robert J. Burns, Sioux Falls, for plaintiffs and appellants.

Carleton R. Hoy and Edwin E. Evans of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.

WOLLMAN, Justice.

This is a consolidation of two appeals involving a medical malpractice action. Plaintiffs, Mark A. Wheeldon, as special administrator of the estate of his stillborn child, Heather Briann Wheeldon, deceased, and Sandra L. Wheeldon, mother of the child, alleged, inter alia, that defendant Dr. Dean L. Madison had negligently performed certain prenatal procedures, wrongfully causing the death of Heather Briann Wheeldon, who was at the time of her death a viable but unborn child. In addition to the wrongful death claim, plaintiffs sought damages on their own behalf from Dr. Madison and the professional corporation of which he was a member at the time of this action, Obstetrics and Gynecology, Ltd.

In # 14387, plaintiffs appeal from the pre-trial order dismissing the wrongful death count of the complaint. In # 14444, plaintiffs appeal from the judgment entered following a jury verdict in favor of defendants in plaintiffs' suit for damages on their own behalf. We affirm the judgment in # 14444. We dismiss as moot the appeal in # 14387.

On appeal from the verdict in # 14444, plaintiffs contend that the trial court erred: (1) by not completely and adequately instructing the jury on the issue of informed consent and in refusing to instruct the jury on the issue of alternative treatment; (2) by admitting testimony from a physician who was treating Mrs. Wheeldon at the time of trial; and (3) by not allowing a certain trial exhibit to be taken into the jury room during jury deliberations.

In late 1981, Mrs. Wheeldon became pregnant with her second child. In August of 1982, Mrs. Wheeldon's family physician, Dr. Gregory Magnuson, believing that Mrs. Wheeldon should undergo a repeat caesarean section for delivery of the baby, referred her to Dr. Dean L. Madison (Dr. Madison), a board-certified obstetrician and gynecologist. Dr. Madison had delivered Mrs. Wheeldon's first child by caesarean section.

On August 27, 1982, a nurse from Dr. Madison's office called Mrs. Wheeldon to schedule her for an amniocentesis procedure. Amniocentesis is the tapping of the amnion (inner layer of tissue which forms the bag containing the fetus in the uterus) with a needle inserted through the abdominal wall. This procedure is used to obtain a sample of the amniotic fluid for laboratory testing. Mrs. Wheeldon told the nurse that she did not want to undergo the procedure. She had learned from reading general magazine articles and through discussions with several people that there were some risks associated with the procedure. Specifically, she was concerned about the possibility of a miscarriage or the hitting of the fetus with the needle. The nurse stated that it was Dr. Madison's practice for all repeat caesarean section patients to have an amniocentesis. Following Mrs. Wheeldon's conversation with the nurse, Dr. Madison telephoned her. He explained to her that the purpose of the amniocentesis was to determine fetal lung maturity and to guard against the possibility of respiratory distress in the newborn infant. Dr. Madison further stated that the risk of delivering a prematurely born child with respiratory distress far outweighed the risk of undergoing the amniocentesis. Mrs. Wheeldon then inquired whether she could forego the amniocentesis and just wait to go into labor. Dr. Madison explained that the risk of possible anesthesia complications dictated against this approach.

Mrs. Wheeldon agreed to undergo the procedure, and an appointment was scheduled for September 1, 1982. The amniocentesis procedure performed on that date occurred without incident. The results from this test were inconclusive, however, and a second amniocentesis was scheduled for the following week. Mrs. Wheeldon returned to Dr. Madison's office on September 8, 1982, for the repeat amniocentesis. During this second amniocentesis, blood appeared in the amniotic fluid. There was also a simultaneous movement of the fetus during the course of the procedure. This test result, where blood is expressed along with amniotic fluid, is known in medical literature as a "bloody tap." Dr. Madison then terminated the procedure, believing he had withdrawn a sufficient amount of amniotic fluid to conduct a test. The ultrasound technician assisting Dr. Madison in the procedure scanned Mrs. Wheeldon's abdomen for the purpose of observing fetal movement and cardiac activity. He concluded that everything appeared normal. Mrs. Wheeldon returned home.

Later that same day, after arising from a nap, Mrs. Wheeldon determined that she could not feel any fetal activity. This condition persisted throughout the evening of September 8. Mrs. Wheeldon was admitted to Sioux Valley Hospital later that same night. Drs. Madison and Magnuson then performed a caesarean section delivery of Mrs. Wheeldon's stillborn fetus. The cause of death was determined to be fetal exsanguination, i.e., death due to extensive loss of blood by the fetus. Dr. Madison conducted an examination of the fetus and concluded that a small fetal vessel on the surface of the placenta had probably been lacerated by the needle used to perform the amniocentesis, resulting in fetal exsanguination.

Plaintiffs' contention during trial was that Dr. Madison's conduct in managing the "bloody tap" fell below the professionally acceptable standard of care. Plaintiffs and defendants presented expert testimony on this issue, with the jury resolving the question in favor of Dr. Madison.

Plaintiffs also contended at trial that Dr. Madison was negligent in failing to inform Mrs. Wheeldon of the risks to the unborn child associated with the amniocentesis procedure and in failing to discuss with her alternative forms of treatment. The trial court instructed the jury on the issue of informed consent. The trial court concluded, however, that the evidence presented did not warrant an instruction on the issue of alternative treatment.

Adequacy of Jury Instruction

Defendants objected to the trial court's instruction on informed consent, contending that plaintiffs had failed to present expert testimony establishing the existence or the extent of defendants' duty to disclose the risks of the amniocentesis procedure. In rejecting defendants' motion for directed verdict on plaintiffs' informed consent claim, the trial court, while acknowledging that the question has not yet been expressly decided by this court, ruled that expert testimony is not necessary on the question of informed consent. Rather, the trial court concluded, the issue could be resolved by the jury's employing an objective, reasonably prudent person test notwithstanding the absence of expert testimony.

The trial court's instruction on the issue of informed consent to the jury read as follows:

16.

It is the duty of a physician to obtain the consent of a patient before treating or operating on him. Such consent may be express or may be implied from the circumstances.

In this regard, it is the duty of the physician or surgeon to disclose to his patient all material information to enable the patient to make informed decision regarding the proposed operation or treatment.

Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one which is not commonly appreciated.

There is no duty to discuss minor risks inherent in common procedures, when such procedures very seldom result in serious ill effects.

However, when a procedure inherently involves a known risk of death or serious bodily harm it is the physician's or surgeon's duty to disclose to his patient the possibility of such outcome and to explain in lay terms the complications that might possibly occur.

Even though the patient has consented to a proposed treatment or operation, the failure of the physician or surgeon to inform the patient as stated in this instruction before obtaining such consent is negligence and renders the physician or surgeon subject to liability for any injury proximately resulting from the treatment if a reasonably prudent person in the patient's position would not have consented to the treatment if he had been adequately informed of all the significant perils.

Plaintiffs contend that this instruction does not adequately reflect the current law in this state on informed consent. They proposed an instruction as follows:

A doctor has the duty to make a reasonable disclosure to his patient of the significant risks in view of the gravity of the patient's condition, the probabilities of success, and any alternative treatment or procedures, if such are reasonably appropriate, so that the patient has the information reasonably necessary to form the basis of an intelligent and informed consent to the proposed treatment or procedure.

This proposed instruction was based upon our decision in Cunningham v. Yankton Clinic, P.A., where we held in part:

A doctor has the duty to make a reasonable disclosure to his patient of the significant risks in view of the gravity of the patient's condition, the probabilities of success, and any alternative treatment or procedures, if such are reasonably appropriate, so that the patient has the information reasonably necessary to form the basis of an intelligent and informed consent to the proposed...