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Arrabal v. Crew-Taylor12/3/2004
at could happen to the fetuses if hypoxia was the cause of the non- reassuring test results, nor did he discuss the likely consequences if the hypoxia continued without treatment.
By the time he was sued, Dr. Arrabal had no notes or recollection as to what he had discussed with Mrs. Crew-Taylor in October of 1998 concerning the non-reassuring test results or about what, if anything, he had told the mother regarding the risks associated with continuing the pregnancy.
Dr. David Feisner, an OB/Gyn from Michigan, was called as an expert witness by plaintiffs. He testified that Dr. Arrabal deviated from the standard of care in several respects. In regard to the lack of informed consent claim, he testified that the doctor deviated from the standard of care because
he failed to inform Mrs. Taylor what the situation was. She had numerous tests, all of which have been described as non-reassuring, and that's a situation that she should have been made aware of so that a plan of management could be formulated. Any time any person has a test it's important to let them know what's going on so that they can be aware that yes, things are okay or things are not okay.
Appellants' expert, Dr. Harold Fox, on cross-examination, agreed with plaintiffs' counsel that, as a general proposition, it is reasonable for a mother to know her status and the status of her fetuses, and to be informed of the probable success of treatment alternatives, when those probabilities can be defined. Another of appellants' experts, Dr. Donald Chambers, testified that Che's parents should have been told that the results of the biophysical profile were non-reassuring.
II. QUESTIONS PRESENTED
The questions presented by appellants, which we have re-ordered and re-phrased, are as follows:
1. Did the trial court err in submitting appellees' informed consent claim to the jury because lack of informed consent must be predicated on the failure to advise of material risks and medical alternatives in the context of an affirmative treatment affecting the physical integrity of the patient under Reed v. Campagnolo, 332 Md. 226 (1993), and the continuation of a patient's pregnancy (the failure to deliver) does not qualify as such an affirmative treatment?
2. Assuming, arguendo, the trial court did not err in allowing the jury to consider the action for informed consent, whether the trial court nevertheless abused its discretion in restricting cross-examination of Mrs. Crew- Taylor concerning the course she would have taken if Dr. Arrabal had advised her that delivery was an option, and of the risks associated with premature delivery, including long term morbidity?
3. Did the trial court's failure to require the jury to itemize damages for both negligence and informed consent require a new trial because the award to Mrs. Crew-Taylor may have improperly included damages based on informed consent?
4. Did the trial court err in submitting to the jury the estate's claim for conscious pain and suffering, instructing on such damages, and including them in the special verdict to be itemized by the jury, because the expert and lay testimony did not establish the consciousness of this fetus/infant and his capacity for pain and suffering?
5. Did the trial court err in submitting the estate's claim for medical expenses to the jury?
6. Even assuming, arguendo, that the trial court did not err in submitting the estate's claims for medical expenses to the jury, did the trial court err in restricting appellants' cross- examination of Mrs. Crew-Taylor concerning the payment of those medical expenses and in refusing to modify the
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