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Campbell v. Breedlove5/31/2000
JO-034
Sylvia Campbell and her husband David Campbell sued Sylvia Campbell's obstetrician for medical malpractice and battery after their child died in utero. The jury returned a verdict for the physician. The Campbells appeal from the judgment entered on the verdict, contesting certain evidentiary rulings. Because we have determined that either no error or no reversible error occurred, we affirm.
The record shows that on April 2, 1996, when Mrs. Campbell was 34 weeks pregnant, the obstetrician told her that the baby was in breech presentation and that he would attempt to turn the fetus by external cephalic version procedure. This procedure is one in which the physician manipulates the outside of the mother's abdomen to turn the baby from a breech presentation to a vertex or head-first presentation. The obstetrician, Dr. David Breedlove, attempted the procedure in his office that day, on April 16, 1996 and again on April 23, 1996. He was unsuccessful on each occasion.
According to Mrs. Campbell, before the first attempt to turn the fetus, she asked Dr. Breedlove whether the procedure was safe, whether the procedure would cause premature labor or bleeding, and whether it would harm the baby. Dr. Breedlove responded that he had been successful in the past in performing the procedure and that there was "nothing to worry about." Mrs. Campbell testified that before the second and third attempts she again questioned Dr. Breedlove about the safety of the procedure. At trial, Dr. Breedlove denied that Mrs. Campbell had asked questions about any risks and denied that he had told her that there was no need to worry. It is, however, undisputed that Dr. Breedlove never disclosed any of the risks associated with the procedure.
On May 4, because she no longer felt fetal movement, Mrs. Campbell went to the hospital, where Dr. Breedlove determined that her baby had died in utero. During the delivery of the stillborn baby, Dr. Breedlove observed that the umbilical cord was wrapped tightly three times around the baby's neck and told Mrs. Campbell that the cord entanglement was a likely cause of her child's death.
The Campbells sued Dr. Breedlove for medical malpractice, alleging that he breached the standard of care when he attempted the procedure without using certain screening and monitoring devices. The Campbells amended their complaint to include a claim for battery based on the theory that Mrs. Campbell's consent to the procedure was obtained by fraud. They alleged that Dr. Breedlove failed to inform them of the general terms of the procedure and that he failed to disclose the material risks in response to Mrs. Campbell's inquiries.
Before trial, Dr. Breedlove moved in limine to exclude evidence of informed consent, arguing that informed consent did not apply in this case. The trial court determined that this case did not involve any of the specific surgical or diagnostic procedures set forth in OCGA § 31-9- 6.1 and so excluded evidence regarding informed consent to prove a violation under that code section. However, the trial court ruled that evidence of informed consent would be permitted to prove a violation of OCGA § 31-9-6, which sets out more general requirements for establishing valid consent to medical treatment.
After the close of evidence, the trial court directed a verdict against the Campbells with respect to their fraud claim. The jury returned a verdict for Dr. Breedlove as to the malpractice claim, and the trial court entered judgment on the verdict. The Campbells appeal, claiming that the trial court improperly excluded their medical expert's testimony regarding their battery claim. We are not called upon to address, in
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