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COA reverses directed verdict in OB-GYN’s favor

November 17, 2017

A northern Indiana trial court must revisit the issue of whether a doctor adequately informed his patient of the risks associated with having a natural birth after the Indiana Court of Appeals reversed a grant of a directed verdict in the doctor’s favor on the issue of informed consent.

While pregnant with her fourth child, Francisco, Laura Aguirre was diagnosed with gestational diabetes. Aguirre also qualified as obese during her pregnancy, and the combination of obesity and gestational diabetes increases the risk of an infant suffering from paralysis during birth.

The risk of these injuries, known as shoulder dystocia, can be mitigated by giving birth via Cesarean section. However, Aguirre claimed her OB-GYN, Dr. Michael, Hu, did not discuss the increased risk of a vaginal birth with her, but instead said she would not need a C-section.

Then, when she arrived at the hospital for her labor to be induced, Aguirre signed a consent form specifying she would have a vaginal delivery. Francisco was then born and suffered from shoulder dystocia during delivery, resulting in his inability to use his left arm.

Two years after her son’s birth, Aguirre filed a proposed medical malpractice complaint, claiming Hu failed to provide her with sufficient information to allow her to give informed consent to a vaginal delivery. However, a medical review panel found the evidence did not establish that Hu failed to meet the applicable standard of care.

Aguirre then filed a complaint against Hu and the hospital in Lake Superior Court that mirrored the proposed medical malpractice complaint. During an ensuing trial, Dr. Bruce Halbridge, an OB-GYN, testified for Aguirre that each of the risk factors associated with her pregnancy created a 95 percent risk that shoulder dystocia would occur during delivery, and that Hu should have notified her of that risk and recommended a C-section. Further, Aguirre testified that had she known of the risks, she would have opted for a C-section.

Hu then moved for a partial directed verdict as to the issue of informed consent, which the trial court granted, while the jury returned a verdict in favor of Hu. Aguirre then filed the instant appeal, challenging only the grant of a directed verdict on the informed consent issue.

The Indiana Court of Appeals reversed the grant of the directed verdict on Friday, with Judge Michael Barnes writing that Halbridge’s expert testimony provided evidence of the fact that Aguirre’s baby was at a high risk of encountering shoulder dystocia. Barnes also said there was evidence Hu did not convey that information to Aguirre, and that as a result Francisco suffered severe damage to his left arm.

That evidence combined satisfied four of the five elements of an informed consent claim, as laid out in Spar v. Cha, 907 N.E.2d 974, 984 (Ind. 2009), thus defeating a directed verdict, Barnes said. He also grappled with the question of whether Aguirre was required to present expert testimony that a “reasonable person” would have chosen a C-section – as has been held in some, but not all, previous precedent – and ultimately determined that if she were required to do so, Aguirre met that burden.

Finally, considering there are issues of fact regarding whether Hu adequately explained the risks of a vaginal birth, the appellate panel determined Aguirre was not bound by the signed consent form and instead reversed the entry of the directed verdict and remanded the case for further proceedings.

The case is Francisco Perez, Jr., Individually, and by Laura Aguirre his natural guardian and next friend, Laura Aguirre, Individually v. Michael P. Hu, M.D., and St. Catherine Hospital of East Chicago Indiana, Inc., an Indiana Not-for-Profit Corporation, 45A04-1701-CT-113.

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