Illinois Appellate Court Reverses Dismissal of Birth Trauma Injury Case Based on Informed Consent

In August 2015, the plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim, filed a medical malpractice lawsuit against the defendant physician, Dr. Gina Dietrich, claiming that she chose not to comply with the standard of care applicable to an obstetrician. The Crims claimed that Dr. 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.

Following the presentation of the Crims’ case to the jury, Dr. Dietrich moved for a partially directed verdict on the issue of informed consent, which was granted by the trial judge. After additional evidence and argument, the jury returned a verdict in Dr. Dietrich’s favor and against the Crims on their remaining claim.

The Crims had sought expenses under Section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (2014)). The court later imposed costs on the Crims as permitted by Section 5-109 of the Code of Civil Procedure, 735 ILCS 5/5-109. The Crims appealed, arguing that the trial judge erred by (1) granting Dr. Dietrich a directed verdict on the issue of informed consent; and (2) barring certain medical testimony. As the appeals panel pointed out, because they agreed with the Crims’ first argument on the directed verdict on informed consent, the trial court’s decisions were reversed.

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 diagnosis if the procedure is not performed and alternative medical treatment.” Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 53, 957 N.E.2d 413. The issue in this case is the Crims’ claim that Dr. Dietrich should have informed Teri about the alternatives to natural childbirth, which if elected may have removed the risk of injury to the Crims’ child.

The underlying lawsuit claimed that Dr. Dietrich, an obstetrician, was negligent because they claimed that during Teri’s pregnancy, Dr. Dietrich chose not to inform Teri that (1) Collin’s increasing weight would place him at risk for injury if he was delivered by natural birth 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 a network nerves known as the brachial plexus. At trial, Teri Crim testified that during her prenatal care, Dr. Dietrich did not discuss Collin’s weight, potential complications with a natural birth of a large infant, or the option of delivery by C-section.

In February 2006, pediatric neurosurgeons surgically repaired Collin’s brachial plexus by grafting a nerve from Collin’s leg into his neck. At trial, Dr. Dietrich was called as an adverse witness. Dr. Dietrich testified that she told Teri that she estimated Collin’s weight at birth to be 8 or 9 lbs. Dr. Dietrich agreed that “a major concern in delivery of macrosomic infant’s shoulder dystocia and the attendant risk of permanent brachial plexus palsy.”

Dr. 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 the delivery. The Crims’ medical expert, a Dr. Benson, opined to a reasonable degree of medical certainty that Dietrich’s performance fell below the standard of care for an obstetrician in that Dietrich (1) relied on an incomplete April 2005 ultrasound report to rule out that Collin was potentially macrosomic, (2) failed to recognize that Collin was macrosomic based on Teri’s fundal height measurements in April 2005 clinical presentation, (3) failed to estimate fetal weight within 48 hours of delivery and (4) chose not to order an ultrasound immediately prior to Teri’s induction. Benson also opined to a reasonable degree of medical certainty that Collin’s brachial plexus injury was caused by Dietrich’s negligence in proceeding with the natural childbirth and would have more likely than not been avoided had Dietrich performed a C-section.

The Crims’ appeal argued in part that the trial judge erred by granting the defendant a directed verdict on the issue of informed consent. Essentially, the Crims claimed that the court incorrectly determined that the Crims were required to present expert medical testimony that Teri would have elected a C-section over natural childbirth. The appeals panel agreed.

In this case, the Illinois Appellate Court agreed with the Crims that the trial judge erred by granting a partial directed verdict in Dr. Dietrich’s favor on the issue of informed consent because the Crims presented competent evidence that (1) an alternative to the natural birth procedure existed, (2) the alternative procedure could have mitigated the injuries Collin sustained and (3) Teri testified that had she been advised of that alternative, she would not have proceeded with natural childbirth. Accordingly, the court reversed the trial judge’s judgment and remanded the case back to the trial court for a new trial.

Collin Crim, a minor, et al. v. Gina Dietrich, D.O., 2016 IL App (4th) 150843.

Kreisman Law Offices has been handling birth trauma injury cases, brachial plexus injury cases, medical negligence cases and obstetrician medical negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and surrounding areas, including Flossmoor, Homewood, Highwood, Highland Park, Lake Forest, Lake Bluff, Zion, Gurnee, Grayslake, Arlington Heights, Antioch, Bolingbrook, Joliet, Waukegan, Aurora, St. Charles, Geneva, Calumet City, Blue Island, South Chicago Heights, Chicago Heights, Chicago (Lincoln Square, South Loop, West Town, Austin, Pullman, Pilsen), Schaumburg and Winfield, Ill.

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