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Crim v. Dietrich

Court of Appeals of Illinois, Fourth District

November 7, 2016

COLLIN CRIM, A Minor, By His Parents and Next Friends, KRISTOPHER CRIM and TERI CRIM, Individually, Plaintiffs-Appellants,
v.
GINA DIETRICH, D.O., Defendant-Appellee.

         Appeal from Circuit Court of Adams County No. 06L89 Honorable Mark A. Drummond, Judge Presiding.

          JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Appleton concurred in the judgment and opinion.

          OPINION

          STEIGMANN JUSTICE

         ¶ 1 In August 2015, plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim (born June 17, 2005), filed a fourth amended medical malpractice claim against defendant, Gina Dietrich, D.O., alleging that she failed to comply with the standard of care applicable to an obstetrician. The Crims claimed, in pertinent part, that Dietrich's negligent failure to obtain Teri's informed consent prior to Collin's natural birth resulted in a fracture to Collin's right clavicle and nerve damage that extended down his right side to his shoulder, wrist, hand, and fingers.

         ¶ 2 Following the presentation of the Crims' case at a September 2015 jury trial, Dietrich moved for a partially directed verdict on the issue of informed consent, which the trial court granted. Thereafter, following additional evidence and argument, the jury returned a verdict in Dietrich's favor and against the Crims on their remaining claim, which sought to recover medical expenses under section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2014)). The court later imposed costs on the Crims as permitted by section 5-109 of the Code of Civil Procedure (Code) (735 ILCS 5/5-109 (West 2014)).

         ¶ 3 The Crims appeal, arguing that the trial court erred by (1) granting Dietrich a directed verdict on the issue of informed consent and (2) barring certain medical testimony. Because we agree with the Crims' first argument, we reverse.

         ¶ 4 I. BACKGROUND

         ¶ 5 A. Informed Consent

         ¶ 6 Because our resolution of this case concerns the trial court's grant of a directed verdict in Dietrich's favor on the issue of informed consent, we provide the following brief explanation of that concept to place the Crims' claim in its proper context.

         ¶ 7 In a medical malpractice action raising a lack of informed consent, a plaintiff must prove that a physician "should have informed the patient, prior to administering medical treatment, of the diagnosis, the general nature of the contemplated procedure, the risks involved, the prospects of success, the prognosis if the procedure is not performed and alternative medical treatment." (Internal quotation marks omitted.) Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 53, 957 N.E.2d 413 (quoting Coryell v. Smith, 274 Ill.App.3d 543, 549, 653 N.E.2d 1317, 1321 (1995), quoting Roberts v. Patel, 620 F.Supp. 323, 325 (N.D. Ill. 1985)). At issue in this case is the Crims' claim that Dietrich should have informed Teri about alternatives to natural childbirth.

         ¶ 8 B. The Crims' Claim

         ¶ 9 In August 2015, the Crims, acting on behalf of their minor son, Collin, filed a fourth amended medical malpractice claim against Dietrich, alleging that she failed to comply with the standard of care applicable to an obstetrician. Essentially, the Crims claimed that during Teri's pregnancy, Dietrich failed to inform Teri that (1) Collin's increasing weight would place him at risk for injury if he was delivered by natural childbirth and (2) Teri had the option of delivering Collin by cesarean section (C-section) to mitigate possible injury. During Collin's June 17, 2005, natural delivery, he suffered shoulder dystocia-that is, an obstructed labor whereby after the delivery of the head, the anterior shoulder of the infant cannot pass or requires significant manipulation. As a result, Collin suffered a clavicle fracture and "extensive injury" to the network of nerves known as the brachial plexus. See http://www.mayoclinic.org/diseases-conditions/ brachial-plexus-injury/home/ovc-20127336 (last visited Sept. 26, 2016) (defining brachial plexus as a "network of nerves that sends signals from your spine to your shoulder, arm[, ] and hand"). In their prayer for relief, the Crims sought a judgment in their favor and compensation for Collin's injuries.

         ¶ 10 C. The Evidence at Trial

         ¶ 11 At a September 2015 jury trial on the Crims' medical malpractice suit, they pre- sented the following evidence.

         ¶ 12 In September 2004, Teri discovered that she was pregnant with her first child. In October 2004, Teri made an initial appointment to see Dietrich, who administered Teri's prenatal care throughout the pregnancy. Dietrich performed ultrasounds in October 2004, January 2005, and April 2005. Teri noted that Dietrich performed the April 2005 ultrasound because Dietrich was concerned that Collin "was measuring large." After conducting that ultrasound, Dietrich confirmed that (1) Teri's fluid levels were "okay" and (2) Collin was progressing normally. In May 2005, Dietrich told Teri that Collin would be about eight pounds at birth. Thereafter, Dietrich did not discuss again Collin's weight with Teri. Ten days after Teri's June 6, 2005, expected delivery date, Dietrich induced Teri's labor at a local hospital. Collin was born 26 hours later, weighing 11 pounds, 2 ounces.

         ¶ 13 Teri testified that during her prenatal care, Dietrich did not discuss (1) Collin's weight, (2) potential complications associated with the natural birth of a large infant, or (3) the option of Teri delivering Collin by C-section. After Collin was born, radiography confirmed that he had a fractured clavicle. Shortly thereafter, Teri learned that Collin had injured his brachial plexus. In the first few days after Collin's birth, Teri observed that he did not move his right arm, turn his hand, or move his fingers.

         ¶ 14 In February 2006, pediatric neurosurgeons surgically repaired Collin's brachial plexus by grafting a nerve from Collin's leg into his neck. Teri then recounted her biannual trips to St. Louis for occupational and physical therapy to improve Collin's gross motor skills, such as catching a ball and lifting his hand up to his mouth. (Each therapy session, which occurred for about an hour, was recorded and published to the jury.) Teri opined that during the November 2007 therapy session, she saw "real improvement" and Collin "was actually gaining a little bit of his *** movement back." Teri noted, however, that Collin's limited range of movement affected the type of clothing they purchased for him, explaining "[w]e couldn't buy [Collin] real tight shirts, things like that, because that would be very difficult, and [Collin] would get upset trying to put clothes on like that." Teri acknowledged that despite his progress, 10-year-old Collin could not lift or pour a full gallon of milk and had difficulty reaching above his head. Teri stated that Collin (1) does not talk about his injury, (2) does not want others to know about his injury, and (3) will change the subject if someone attempts to discuss his injury.

         ¶ 15 Teri reiterated that Dietrich never told her that (1) Collin was a large baby, (2) the complications that might arise with the natural delivery of a large baby, or (3) a C-section delivery could have avoided Collin's clavicle fracture and brachial plexus injury. Teri stated, "[h]ad I known that there was a chance of shoulder dystocia, or brachial plexus or what could happen, I would have opted for a C-section."

         ¶ 16 Dietrich, who testified as an adverse witness, had been Teri's obstetrician from November 2004 to June 2005. During that time, Dietrich acknowledged using a "fundal height" centimeter measurement to "track the progress" and "compare" that length to the weeks of gestation to ensure the proper correlation. Dietrich then explained that the fundal height measurements she took at weeks 26, 28, 30, and 32 of Teri's pregnancy showed fundal height lengths that were approximately 3 to 4 centimeters greater than the expected factor for those respective weeks of gestation. One of Dietrich's concerns with the measurements was that unborn Collin might be "large for his gestational age."

         ¶ 17 Dietrich confirmed that the definition of fetal macrosomia is when "a fetus is in the 90th percentile of size, " which occurs "at the term of the pregnancy" and at 4, 500 grams (approximately 9.92 pounds) to 5, 000 grams (approximately 11.02 pounds). Prior to term, Dietrich generally assesses whether the fetus is large for the corresponding gestational age. At term, Dietrich evaluates whether the fetus is macrosomic. One week prior to Collin's birth, Dietrich told Teri that she estimated Collin's weight at birth to be eight or nine pounds. Dietrich agreed that "a major concern in delivery of macrosomic infants is shoulder dystocia and the attendant risk of permanent brachial plexus palsy." Dietrich noted that one way to avoid shoulder dystocia is to deliver a fetus by C-section, which avoids navigation of the birth canal and, as a result, prevents the shoulder from becoming impacted during that navigation.

         ¶ 18 Dietrich admitted that "the appropriate management of shoulder dystocia begins with recognition that the condition ...


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