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Arrabal v. Crew-Taylor12/3/2004
rly informed, a reasonable person in her position would have opted on October 18 to have an immediate Caesarian section. If that were sufficient to prove lack of informed consent (it was not), the damages to Mrs. Crew-Taylor (death of her child) would have been identical to those caused by the negligent failure to perform an immediate Caesarian section on October 18. No matter what theory was chosen, the damages to Che's estate and to Che's parents would not have changed. Thus, a new trial is not warranted even though the court erred in submitting the lack-of-informed-consent issue to the jury.
D. Question 4
Appellants argue:
The trial court erred in instructing the jury on pain and suffering and itemizing such damages on the special verdict because the testimony did not establish the consciousness of this fetus/infant and his capacity for pain and suffering.
Although appellants claim that their counsel objected to certain evidence introduced by the plaintiffs concerning the (alleged) pain and suffering experienced by Che, appellants do not argue that reversible error was committed when the judge made those evidentiary rulings. Instead, according to appellants, reversible error was committed when the trial judge overruled their objection to the verdict sheet, which allowed the estate to recover for Che's conscious pain and suffering. The sole ground for that exception was that, allegedly, there was insufficient evidence to support that claim by the estate.
Dr. David Peisner, one of the plaintiffs' experts, gave the following testimony on direct examination:
Q: Doctor, understanding that's your opinion that Dr. Arrabal deviated from the applicable standards of care not timely delivering these babies, do you have an opinion based upon reasonable medical probability what, if any damage or injury occurred to Che Taylor as a result of that delay?
A: Yes.
Q: What is that opinion?
A: In my opinion the babies suffered hypoxic ischemic encephalopathy, HIE, when the babies' heart rate was slow for that long period of time prior to the actual delivery.
Q: And, doctor, do you have an opinion based on reasonable medical probability whether Che Taylor suffered any conscious pain and suffering another or in his mom during this bradycardic event?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
BY [PLAINTIFFS' COUNSEL]:
Q: What is your opinion?
A: In my opinion the baby suffered conscious pain and suffering for the reason that newborns have been demonstrated to suffer conscious pain and suffering when something is done for them. A baby just prior to birth is right around the same time period and when there is a noxious stimulus to the baby, namely the baby is holding its breath, baby basically drowning as you will, then that's conscious pain and suffering as the baby is suffering from those consequences.
Dr. Peisner's opinion came in without a valid objection. And, defense counsel never cross-examined Dr. Peisner regarding his conscious-pain-and-suffering opinion, nor did defense counsel move to strike that testimony. We hold that Dr. Peisner's testimony, standing alone, was sufficient to present a jury issue as to whether Che suffered conscious pain and suffering.
Appellants also contend that the opinions of plaintiffs' expert regarding Che's conscious pain and suffering had an insufficient factual basis. That, however, was not the objection raised at the trial level. At trial, the appellants' argument was that the estate had presented no evidence that
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