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Klutschkowski v. Peacehealth

Supreme Court of Oregon, En Banc

September 26, 2013

BOBBI KLUTSCHKOWSKI and KEVIN KLUTSCHKOWSKI, personally and as guardians ad litem for BRAEDON KLUTSCHKOWSKI, a minor child, Petitioners on Review, Cross-Respondents on Review,

Argued and submitted September 17, 2012

Resubmitted January 7, 2013.

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. 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 McCarthy agreed, 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 gestational age and of the April 23, 2004, ultrasound documentation of an estimated fetal weight of 3964 g. and greater than the 97th percentile[.]"

In a separate paragraph of the complaint, plaintiffs alleged that the Medical Group "did not obtain [mother's] informed consent to delay Braedon Klutschkowski's delivery past [the date of the ultrasound], and to deliver Braedon Klutschkowski vaginally rather than by cesarean section." Finally, plaintiffs alleged that, as a result of the Medical Group's negligence and failure to obtain mother's informed consent, "Braedon Klutschkowski suffered permanent and severe birth injuries when he was born on or about May 2, 2004."

We discuss below the specific objections and rulings that have given rise to the petition and cross-petition for review in this case. At this point, it is sufficient to note that the jury returned a general verdict, finding that the Medical Group had been negligent. It awarded plaintiffs $557, 881.11 in economic damages and $1, 375, 000 in noneconomic damages. After the jury returned its verdict, defendant moved to impose a $500, 000 statutory cap on the jury's award of noneconomic damages. Plaintiffs responded that applying the cap would violate Article I, sections 10 and 17, of the Oregon Constitution. The trial court denied defendant's motion. On appeal, the Court of Appeals reversed the trial court's ruling that capping the jury's award of noneconomic damages would violate the Oregon Constitution but otherwise affirmed the trial court's judgment.


On appeal and again on review, the parties debate whether the trial court erred in instructing the jury and whether applying a statutory cap to the jury's damages award would violate the Oregon Constitution. We begin with defendant's challenges to giving plaintiffs' requested instruction on informed consent and to declining to give defendant's requested instruction regarding its responsibility for its employees.


Defendant argues initially that the trial court erred in giving plaintiffs' requested instruction on informed consent. Because the Court of Appeals ruled that defendant did not preserve its objection to that instruction or properly except to it, we set out defendant's objections and exception to the instruction. We then consider whether defendant's objections and exception were sufficient to preserve the issue it sought to raise on appeal. Because we conclude that they were, we consider finally whether the trial court committed reversible error in instructing the jury on informed consent.

At multiple points during the trial, the parties discussed whether and how ORS 677.097, the informed consent statute, applies to a vaginal delivery. Defendant consistently took the position that a vaginal delivery is not a "procedure or treatment" that requires "informed consent" within the meaning of ORS 677.097.[4] In defendant's view, a vaginal delivery is the natural consequence of a pregnancy and will occur without regard to whether the physician seeks or obtains the mother's consent. As a result, defendant argued, the informed consent statute never applies to a vaginal delivery. Plaintiffs took precisely the opposite position. They argued that, as a matter of law, the statute always applies to vaginal deliveries. The trial court, for its part, consistently expressed its view that whether and how the informed consent statute applies to vaginal deliveries is a question for the jury.

On Monday morning, two days before the trial court instructed the jury, defendant moved for a directed verdict on plaintiffs' informed consent claim, reiterating its position that the informed consent statute does not apply to vaginal deliveries. The trial court denied that motion. Immediately after ruling on that motion, the trial court invited objections to its proposed instructions. In a colloquy that covers more than 50 pages of the transcript, both sides raised numerous objections to the proposed instructions. When they reached the instruction on informed consent, the court unilaterally noted the parties' competing positions and posed a hypothetical to the parties to begin the discussion:

"THE COURT: A woman shows up. She's pregnant. Her first set of options is have the child, not have the child. She decides on having the child. Everyone, I gather from the testimony I'm hearing, decides it will be vaginal. That's the, for lack of a better term, the default position. Your position [defendant] is that informed consent is not required because [a vaginal delivery is] the default position.
"[DEFENSE COUNSEL]: Right. Yes. I mean, I don't know how --let's assume there's no -- there's no discussion at all, and the vaginal birth just occurs. Can the mother then just sue the doctor because, you know, she -- she experiences complications and then says, hey, you didn't tell me a pregnancy was dangerous, you didn't tell me a vaginal delivery could cause me problems[.] I wouldn't have done it otherwise. I just -- it doesn't follow. There's -- you can't obtain informed consent for a vaginal delivery."

The trial court explained that it had difficulty reconciling defendant's position that informed consent is never required and plaintiffs' position that it is always required. It asked defense counsel:

"[I]f you take vaginal delivery as a default position, but [if you do] not automatically assume there's no informed consent required [as defendant does], nor automatically assume that it must be required [as plaintiffs do], then is the determination of the duty not the jury's?"

Given that question, defense counsel answered, "It's the jury's. It's the jury's determination." The trial court then asked, "So, if that's correct, then does this [instruction on informed consent] belong in [the jury instructions] or not? Because that's my position." Defense counsel answered, "No."

After considering the parties' objections, the trial court told the parties that it would take the objections that they had made on the record as exceptions and that they need not renew those exceptions after the court instructed the jury. Specifically, the trial court told the parties:

"All right. I'm going to ask for exceptions after I instruct, and if you want to just be extra careful with your record, you can do that, but I'm going to just -- I'm going to tell you now that any disagreement you have on the record or any disagreement you have by virtue of an instruction you offered the court that I haven't given, I will take that right now as an exception, and I don't feel the need to add to that.
"The purpose of the change in [ORCP 59] is to articulate [a] reason that might change my mind. And I spent a couple weeks thinking about these things, and I know that the three of you have spent far more than a couple weeks thinking about these. So I think we've had a pretty full discussion, and I'm comfortable with your record."

The trial ended two days later on Wednesday. That morning, the trial court shared a "new version" of the instructions with the parties. Plaintiffs objected to the new version of the informed consent instruction because the court "ha[d] taken out the direct instruction that Oregon Medical Group had the obligation to obtain her informed consent." The court acknowledged that it had taken out "the first paragraph [of the instruction on informed consent] that I had had before" and noted plaintiffs' objection.

Later that day, the court instructed the jury. In its instructions, the court told the jury that plaintiffs had made five specific allegations of negligence and then repeated to the jury, essentially verbatim, the five specifications of negligence quoted above. The court described what plaintiffs had to prove to recover on their negligence claim, instructed the jury on foreseeability, and also instructed on the standard of care. It then turned to informed consent. The instruction on informed consent divides into two parts. The first part, which we do not quote in full, told the jury what "a physician must explain" "[t]o obtain the informed consent of a patient." The second part of the instruction told the jury:

"A failure to obtain Mrs. Klutschkowski's informed consent may be considered by you in determining whether or not ...

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