Klutschkowski v. PeaceHealth
263 P.3d 1130
Or. Ct. App.2011Background
- Braedon Klutschkowski suffered a permanent brachial plexus injury during vaginal delivery; plaintiffs allege OMG failed to inform Bobbi of prior shoulder dystocia risk and to obtain informed consent for vaginal delivery.
- Plaintiffs alleged OMG was negligent in (i) not informing about prior shoulder dystocia and related risks, (ii) not offering cesarean as an alternative, (iii) failing to document prior shoulder dystocia in records, and (iv) failing to inform Monji of prior events; these formed the basis for the informed consent and standard-of-care theories.
- Prior delivery (Anna, 1999) involved shoulder dystocia not disclosed to Bobbi; experts disputed whether a prior shoulder dystocia occurred, shaping the standard of care for consent and delivery method.
- McCarthy and Monji were dismissed before trial; only OMG remained as defendant for the negligence theory at trial.
- The court denied OMG’s motion for directed verdict on the informed consent claim and instructed the jury on informed consent as a negligence specification, leading to a general verdict finding negligence by OMG.
- OMG challenged the noneconomic damages cap (ORS 31.710) as applied to prenatal injuries, and sought reversal of trial transcript cost awards under ORS 21.470(5); the trial court denied these, resulting in appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying directed verdict and instructing on informed consent. | Klutschkowski seeks reversal because informed consent is improper; case should not be grounded in ORS 677.097. | OMG contends informed consent is inapplicable to a vaginal delivery and should not be submitted to the jury. | No reversible error; lack of prejudice means no direction reversal; challenge to instruction unreviewable. |
| Whether ORS 31.710 improperly applies to prenatal injuries under the remedy and jury-trial provisions. | Plaintiffs say cap violates remedy clause and jury-trial guarantees for preexisting negligence claims. | Cap applies; prenatal injuries did not exist in 1857, so no remedy/jury-trial issue. | Cap applies; remedy and jury-trial provisions do not preclude ORS 31.710 in these facts. |
| Whether the trial court properly awarded daily trial transcript costs under ORS 21.470(5). | Transcript costs should be recoverable as disbursements under ORS 21.470(5). | Transcript costs for trial are not recoverable; statute covers appeal transcripts. | Trial transcript costs were improperly awarded; reverse and remand to reduce noneconomic damages. |
Key Cases Cited
- Christiansen v. Providence Health System, 344 Or. 445 (2008) (prenatal injuries not cognizable at statehood; remnant remedy considerations)
- Lakin v. Senco Products, Inc., 329 Or. 62 (1999) (Article I, section 17 jury-trial right limited to cases of like nature to 1857)
- Shoup v. Wal-Mart Stores, Inc., 335 Or. 164 (2003) (reversal on directed verdict requires prejudice showing when a general verdict rests on multiple specifications)
- Hughes v. PeaceHealth, 344 Or. 142 (2008) (limits expansive reading of jury-trial right in post-1857 cases)
- Voth v. State of Oregon, 190 Or. App. 154 (2003) (Article VII Amendment 3 and Article I, §17 not substantive claims; juries limited to traditional remedies)
- Greist v. Phillips, 322 Or. 281 (1995) (Article VII Amendment 3—scope of jury reexamination after verdict)
- Deason v. Tri-County Metropolitan, 241 Or. App. 510 (2011) (preservation of objections to instructions under ORCP 59 H)
- Cestaro v. State of Oregon, 229 Or. App. 8 (2009) (ORCP 59 H preservation and briefing standards)
- Peitsch v. Keizer, 219 Or. App. 114 (2008) (preservation of instructional error)