Melissa M. Keeley, as trustee for the heirs and next-of-kin of Sky Keeley Olson, Appellant, vs. Peter H. Germscheid, M. D., Respondent.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
Melissa M. Keeley, as trustee for the heirs
and next-of-kin of Sky Keeley Olson,
Peter H. Germscheid, M. D.,
Filed June 8, 2010
Morrison County District Court
File No. 49-CV-08-627
Teresa Fariss McClain, Hallberg & McClain, St. Paul, Minnesota (for appellant)
William M. Hart, Cecilie M. Loidolt, Damon L. Highly, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Hudson, Judge; and
In this appeal from judgment in favor of doctor-respondent in a medicalmalpractice action, appellant argues that the district court erred by (1) refusing to include
on the special-verdict form separate interrogatories relating to appellant’s negligent-
nondisclosure theory of liability, and (2) denying appellant’s motion for judgment as a
matter of law. Because the jury instructions as a whole correctly stated the applicable
law on negligent nondisclosure, and because the jury’s determination of negligence may
be sustained on the evidence presented, we affirm.
Appellant Melissa M. Keeley first visited respondent Dr. Peter M. Germscheid, a
family-practice physician practicing in Little Falls, for prenatal care when she was
expecting her first child in 2001.
When appellant was 38 weeks pregnant, her
membranes ruptured, and labor was induced with Pitocin.
During her delivery, a
condition known as shoulder dystocia developed. Shoulder dystocia occurs when the
baby’s shoulders become lodged behind the mother’s pubic bone due to the opposing
angles of the baby and the mother’s pelvis.
The shoulder dystocia noted during
appellant’s 2001 delivery lasted about two or three minutes, after which respondent
performed maneuvers to dislodge the shoulders and deliver the child. The child had a
low Apgar score on delivery, but he was resuscitated and suffered no lasting effects.
Appellant became pregnant with her second child in early 2005 and again visited
respondent for prenatal care. A notation placed in appellant’s medical record at her first
prenatal visit specified a history of shoulder dystocia. Respondent testified that this
notation indicated that he discussed shoulder dystocia with appellant, although he did not
use that term in the discussion. He testified that he told her that her ―first baby got stuck‖
and ―we’ll have to be aware of that as [the] pregnancy progressed.‖ Appellant testified
that, after her first pregnancy, respondent did not discuss the history of shoulder dystocia
or her risk for that condition.
In August 2005, appellant was hospitalized with contractions.
testified that he then told appellant that ―because her baby got stuck before, I’d like to get
this baby delivered before it got too big to deliver vaginally again.‖ He testified that he
preferred a trial of labor, and if that was unsuccessful or the baby showed signs of
distress, he would perform a cesarean section. He testified that the standard of care
would have been to attempt a trial of labor and that he had done this before with other
patients who had risk factors. He did not tell appellant that her baby could die as a result
of vaginal delivery because he estimated the risk of death from shoulder dystocia to be
about one per one thousand. He stated that a risk of death exists with any vaginal
delivery, and if it happens it is ―absolutely‖ significant to the patient. The nurse present
during this visit noted in appellant’s medical chart that respondent had ―discusse[d]
options with patient.‖
At 5:00 a.m. the next morning, respondent started Pitocin to induce labor. He
documented that he would have appellant labor for about eight to ten hours, and if there
was no change, he would stop the Pitocin and decide either to wait or have a cesarean
Respondent testified that, by 10:00 p.m., he offered appellant a cesarean
section, but she declined to have a cesarean or to continue with Pitocin. Respondent
discontinued the Pitocin, but he kept her in the hospital overnight because he ―didn’t
want [her] to leave without having the baby one way or the other.‖ He testified that, the
next morning, he told her that he wanted to get the baby delivered, but she said she
wanted to go home and wait for spontaneous contractions.
Appellant’s boyfriend, the baby’s father, testified that respondent offered a
cesarean and that he and appellant rejected that option because they both wanted her to
have a ―natural birth,‖ but the decision to discontinue Pitocin was appellant’s. Appellant
initially testified that she did not know that shoulder dystocia could be a risk with
delivery, but later testified that ―it could be possible‖ that respondent discussed the option
of a cesarean. She testified that she knew that the baby getting stuck could cause some
trouble with breathing, but not that the baby could have a brain injury or die.
Appellant next saw respondent on August 30, 2005. Respondent testified that he
was then ―very upset‖ that the baby had not yet delivered and ―extremely worried‖ that
appellant ―would get into trouble by continuing to wait.‖ He testified that he offered her
another trial of labor but that she did not want that option. He did not offer a cesarean
section that day because he ―had offered it three times before.‖
He then ordered
additional testing to determine whether the baby was at risk. An ultrasound revealed that
the baby had an estimated weight of approximately nine pounds but did not show other
risk factors. Respondent discussed the size of the baby with appellant, and she came to
the hospital for delivery on the morning of September 5.
Appellant was induced with Pitocin and labored throughout the day with a regular
labor pattern. She testified that she asked respondent for a cesarean section, but he stated
that he did not see a need for one. Appellant’s sister-in-law testified that respondent
indicated that if the baby was not delivered by 6:00 p.m., he would perform a cesarean
section, but a cesarean was not performed. At about 8:30 p.m., when the baby’s head
was delivered, shoulder dystocia developed. The dystocia lasted about six minutes, and
respondent performed prescribed maneuvers to deliver the baby. But the baby had no
respiratory rate at birth, resuscitation was unsuccessful, and the baby died.
Appellant filed suit in Morrison County district court, alleging that respondent:
(1) negligently treated her by failing to document her risk factors for shoulder dystocia, to
refer her to an obstetrician, or to have one present at delivery; and (2) negligently failed
to disclose her increased risk of shoulder dystocia and injury, should she elect a vaginal
delivery, so that she was not informed of the risks of vaginal delivery and did not give
informed consent to that delivery, which resulted in the baby’s death.
At trial, appellant presented evidence from experts Dr. Sander Kushner, an
osteopathic family physician, and Dr. Frank Bottiglieri, an obstetrician. Dr. Kushner
offered the opinion that because appellant was at risk for shoulder dystocia with her
second delivery, respondent failed to meet accepted standards of practice by not referring
her to an obstetrician and by failing to inform her of the potential complications of
shoulder dystocia, including the risk of injury or death to her baby. Dr. Kushner testified
that offering a cesarean section after a failed attempt at labor would not meet the standard
of care unless the doctor told the patient about the potential risks of vaginal delivery. He
testified that the recommendations listed in Bulletin No. 40 of the American College of
Obstetrics and Gynecology (ACOG), an article on shoulder dystocia, were consistent
with accepted standards of care for a family-practice physician.
Dr. Bottiglieri cited an article that indicated a recurrence rate of 13.8 percent for
shoulder dystocia. He testified that the disclosures made in this case were not sufficient
to meet the standard of care for informing a patient of the risk of recurrent shoulder
dystocia, and that more specific risks should have been discussed.
Respondent presented expert-witness testimony from Dr. Bruce Ferrara, a
neonatologist, and Mark Matthias, a family physician. Dr. Ferrara testified that based on
medical literature, the death rate from asphyxia due to shoulder dystocia was between
two and three per one hundred thousand deliveries. Dr. Matthias gave his opinion that
appellant had risk factors for shoulder dystocia, including maternal size, the size of the
baby, and previous shoulder dystocia, but that respondent was ―well within the scope of
his practice to continue to follow her and manage her labor.‖
Dr. Matthias testified that he agreed with AGOG Bulletin No. 40, which stated
that ―shoulder dystocia is most often unpredictable and unpreventable‖ and that although
risk factors could be identified, their predictive value was ―not high enough to be useful
in a clinical setting.‖ He agreed that the ACOG bulletin referred to a history of shoulder
dystocia being associated with a recurrence rate of one percent to 16.7 percent. He also
referred to an additional article that stated that the incidence of death from shoulder
dystocia was found to be 0.025 per one thousand deliveries.
He testified that the
estimated weight of appellant’s baby did not place her in the category for which a
planned cesarean delivery was recommended in Bulletin No. 40; that the standard of care
did not require respondent to tell her about the risk of death to her baby if she tried to
deliver vaginally; and that he believed respondent acted appropriately by discussing risks
and options, not getting an obstetrical consult, and allowing her to have a trial labor.
Appellant submitted proposed jury instructions that included separate specialverdict interrogatories on each element of negligent nondisclosure, following the pattern
jury instruction for that theory of negligence in the Minnesota Civil Jury Instruction
Guide. See 4A Minnesota Practice, CIVJIG 80.25 (2006). Respondent proposed instead
a verdict form containing a single special-verdict question on negligence, following the
pattern jury instruction for medical malpractice. See 4A Minnesota Practice, CIVSVF
80.90. After hearing arguments on this issue, the district court furnished the jury with a
single, special-verdict question relating to the defendant’s negligence: ―Was defendant
Peter Germscheid, M.D. negligent in the care and treatment he provided to Melissa
Keeley?‖1 The district court, however, also provided the jury with oral and written
instructions that included all of the elements of negligent nondisclosure as stated in
After a five-day trial, the jury returned a verdict in favor of respondent. The
district court denied appellant’s motion for a new trial or judgment as a matter of law,
and this appeal follows.
The jury also received special-verdict questions on causation and damages, including
whether, if the jury found respondent to be negligent, such negligence was a direct cause
of the child’s death.
The district court has ―considerable discretion‖ in forming special-verdict
questions. Kohoutek v. Hafner, 383 N.W.2d 295, 302 (Minn. 1986). Absent an abuse of
that discretion, this court will not reverse the district court’s denial of a motion for a new
trial based on a challenge to the formulation of jury instructions. See id. at 300.
The charge of the [district] court must be viewed in its
entirety and from a practical and commonsense point of
view. . . . [A] new trial will not be granted where requested
instructions are refused when the general charge fairly and
correctly states the applicable law. All that is required is that
the charge as a whole convey to the jury a clear and correct
understanding of the law.
Id. (quoting Cameron v. Evans, 241 Minn. 200, 208–09, 62 N.W.2d 793, 798–99 (1954)).
A patient who submits a medical-malpractice action on a theory of negligent
nondisclosure must prove that, although he or she was aware of the nature and character
of a medical treatment, the patient ―was not properly informed of a risk inhering in the
treatment, the undisclosed risk materialized in harm, and consent to the treatment would
not have been secured if the risk were disclosed.‖ Cornfeldt v. Tongen, 262 N.W.2d 684,
699 (Minn. 1977) (Cornfeldt I). A physician has a duty to disclose a risk of treatment if
the doctor knows or should have known of the risk and ―if a reasonable person in what
the physician knows or should have known to be the patient’s position would likely
attach significance to that risk‖ in deciding whether to consent to treatment. Id. at 699,
700. The scope of the duty to disclose risks encompasses information that ―a skilled
practitioner of good standing in the community would reveal,‖ as well as ―risks not
generally considered by the medical profession serious enough to require discussion with
the patient‖ if ―the doctor is or can be aware that [the] patient attaches particular
significance to [those] risks.‖ Kinikin v. Heupel, 305 N.W.2d 589, 595 (Minn. 1981)
(citing Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn. 1980) (Cornfeldt II)).
The Minnesota Civil Jury Instruction Guide recommends the use of jury
instructions that list each element that must be proved on a negligent-nondisclosure
theory. See CIVJIG 80.25. Thus, the recommended pattern jury instruction contains
special-verdict interrogatories specifying each of these elements: (1) the doctor knows or
should know about the risk involved in the treatment or alternatives; (2) the risk of
alternative treatment is significant enough that the doctor should inform the patient of it,
including whether the doctor knows or should have known that a reasonable person in the
patient’s position would view it as significant, or it is the kind of risk that a doctor
customarily tells a patient under similar circumstances; (3) the doctor failed to inform the
patient; (4) a reasonable person in the patient’s position would not have consented to
treatment if the risk had been known; and (5) the undisclosed risk was a direct cause of
Appellant argues that the district court erred by failing to submit to the jury
special-verdict-form interrogatories specific to her negligent-nondisclosure theory. She
maintains that the general negligence special-verdict question did not correctly state the
applicable law, so that the jury was deprived of the opportunity to fully and fairly
consider the issue of negligent nondisclosure.
The Minnesota Supreme Court has held, in a factually similar case, that the district
court did not err by submitting to the jury a single special-verdict question on
malpractice, rather than a series of special-verdict interrogatories setting forth the
elements of negligent nondisclosure. Kohoutek, 383 N.W.2d at 300. In Kohoutek, a
patient alleged that medical professionals negligently failed to inform her about the risks
of vaginal delivery when shoulder dystocia developed during labor and delivery, and her
child died as a result of oxygen deprivation. Id. at 296–97. The district court instructed
the jury on issues of negligent treatment and negligent nondisclosure. Id. at 297. The
court submitted to the jury a special-verdict form which asked whether the conduct of
each defendant amounted to malpractice, but it did not submit special-verdict
interrogatories listing the elements of negligent nondisclosure. Id. at 297–98. The
supreme court concluded on review that:
(1) the special-verdict question on
―malpractice‖ did not confuse the jury because the use of that term, along with
―negligence,‖ in the jury instructions, effectively informed the jury that the two terms
required the same standard of proof; and (2) because the district court separately
instructed the jury on the elements of negligent nondisclosure, ―the jury was reasonably
informed of the two separate claims in negligence.‖ Id. at 302.
Appellant argues that Kohoutek did not reach the issue presented here: whether a
general negligence question on a special-verdict form is legally sufficient to inform a jury
of the elements of negligent nondisclosure, which must be proved. She points out that
both Cornfeldt I and Cornfeldt II strongly endorse the use of special-verdict
interrogatories in negligent-nondisclosure cases. See Cornfeldt I, 262 N.W.2d at 699,
n.11 (stating that ―[i]t is proper to submit the issue [of whether a doctor should have
knowledge of a risk] to the jury as a special interrogatory in a special verdict‖); Cornfeldt
II, 295 N.W.2d at 640 (concluding that, when special-verdict interrogatories had been
submitted to jury, district court erred by ordering judgment for the plaintiff on an element
that had not been submitted for jury’s finding). And she maintains that the district court’s
failure to provide special-verdict interrogatories on each element of the negligentnondisclosure claim deprives her of the right to have the jury determine each issue of
material fact. See Hill v. Okay Constr. Co., Inc., 312 Minn. 324, 340, 252 N.W.2d 107,
118 (1977) (stating ―requirement that [a] special verdict encompass all questions of
material fact . . . [to] ensure the parties their constitutionally guaranteed right to a jury
But we review the district court’s jury instructions in the context of the
instructions as a whole, not just the special-verdict form. See Kohoutek, 383 N.W.2d at
301. The supreme court in Kohoutek specifically concluded, in a negligent nondisclosure
case, that when jury instructions adequately inform the jury of the relevant law and no
jury confusion exists, a particular form of special verdict is not required. See id. at 302;
see also Duxbury v. Spex Foods, Inc., 681 N.W.2d 380, 388 (Minn. App. 2004)
(concluding that district court has no obligation to adopt jury instruction guide specialverdict form as long as law is correctly stated), review denied (Minn. Aug. 25, 2004).
The supreme court’s language in Cornfeldt I and Cornfeldt II, while favorable to the use
of particular special-verdict interrogatories, does not require them in every negligent
nondisclosure case. See Minn. R. Civ. P. 49.01(a) (giving district court discretion in use
of special interrogatories); see also Hill, 312 Minn. at 340, 252 N.W.2d at 118 (stating
that district court has discretion to formulate special-verdict questions ―in the form of
ultimate fact questions‖).
Here, the district court gave the jury specific written and oral instructions on the
elements listed in CIVJIG 80.25. The court told the jury:
A failure to tell a patient about the risks of treatment or the
availability of alternative treatment is negligence if: One, the
doctor knows or should know about the risk involved in
surgery or treatment are [sic] or alternatives to the surgery or
treatment. Two, the risk or alternative treatment is significant
enough that the doctor should tell his patient about it. The
risk—or the existence of alternative treatment is significant if
(a) the doctor knows or should know that a reasonable person
in the Plaintiff’s position would regard it as significant; or
(b) it is the type of risk or alternative treatment that a doctor
customarily tells a patient about under similar circumstances.
Now, number three, the doctor does not tell the patient about
the risk or alternative treatment. Four, a reasonable person in
the patient’s position would not have consented to the
treatment or surgery if the risk or alternative treatment had
been known. And five, the undisclosed risk is a direct cause
of death to the patient.
Although it would have been advisable for the district court to have furnished the jury
with special-verdict interrogatories that included the specific elements of negligent
nondisclosure, the district court specifically outlined those elements for the jury in
written and oral instructions. Because the district court’s instructions as a whole fairly
and correctly stated the applicable law, the court did not abuse its discretion by declining
to use special-verdict interrogatories on each element of negligent nondisclosure.
Further, even if the district court had improperly failed to submit a more detailed
special-verdict form, we could not conclude that any error sufficiently prejudiced
appellant as to require a new trial. The district court told the jury that it ―must consider
all the instructions together‖ in arriving at a verdict. And during closing argument,
appellant’s trial counsel reiterated the elements necessary to determine the negligentnondisclosure claim and specified what answer on the special-verdict form would be
favorable to her client on that issue. See Lommen v. Adolphson & Peterson Constr. Co.,
283 Minn. 451, 456, 168 N.W.2d 673, 677 (1969) (concluding that new trial was not
warranted for failure to give specific jury instruction when counsel ―fully, clearly and
vigorously addressed‖ issue in closing arguments, which ―explained and were . . .
consistent with the court’s general instructions‖).
Appellant argues that the district court erred by failing to grant her motion for
judgment as a matter of law (JMOL) on the issue of negligent nondisclosure. This court
reviews de novo the district court’s decision on a JMOL motion.
Schoenrock, 727 N.W.2d 153, 159 (Minn. App. 2007). Under Minn. R. Civ. P. 50.01,
JMOL should be granted ―only in those unequivocal cases‖ in which, on the evidence
taken as a whole, a contrary verdict would be manifestly against the evidence or could
not be maintained under controlling law. Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly,
& Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (citation omitted) (applying Minn.
R. Civ. P. 50.01). This court will not set aside a jury’s verdict ―if it can be sustained on
any reasonable theory of the evidence‖ or unless the evidence is ―practically conclusive
against the verdict.‖
Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998)
Appellant argues that respondent, by his testimony, admitted three of the five
elements of negligent nondisclosure: that he knew of the risk of treatment, that he failed
to inform her of that risk, and that the risk was a direct cause of harm. She maintains that
the district court could have decided, as a matter of law, that the remaining elements were
met because the record shows that the specific risks of injury or death from recurring
shoulder dystocia were significant enough so that respondent should have told her about
them, and that if the risks had been known, a reasonable person in her circumstances
would not have consented to a vaginal delivery.
The jury found that respondent was not negligent in his care and treatment of
In reaching this determination, the jury could have reasonably relied on
respondent’s testimony and the testimony of his experts that he sufficiently informed
appellant of the risk of recurring shoulder dystocia by telling her that ―the baby could get
stuck‖ again and that she could have a difficult delivery. The jury could also have
credited respondent’s testimony that he offered appellant the option of a cesarean section
as an alternative to a vaginal birth.
Appellant argues that respondent had the duty to inform her of more specific risks
of shoulder dystocia, including the risk of infant death. But ―[d]octors have a duty to
disclose risks of death or serious bodily harm which are a significant probability.‖ K.A.C.
v. Benson, 527 N.W.2d 553, 561 (Minn. 1995). The district court correctly instructed the
jury that a risk is significant enough to require disclosure if a doctor knows or should
know that a reasonable person in the plaintiff’s position would regard it as significant, or
if it is the kind of risk that, under similar circumstances, a doctor customarily tells a
patient. Dr. Matthias testified that in many cases, shoulder dystocia resulted in a delivery
without complications, and that in other cases, it resulted in brachial plexus injury, which
often resolved. Dr. Ferrara testified that in 25 years in practice as a neonatologist, he had
not seen a child’s death from shoulder dystocia. On this record, the jury reasonably could
have determined that the risks of death or serious harm as a result of shoulder dystocia
were not significant enough to require disclosure of those risks. The district court did not
err by denying the motion for judgment as a matter of law.