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Harris v. Hewitt3/11/2005
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Venita Harris and her husband, Benjamin (Ben) Harris (collectively the appellants) have appealed from the November 6, 2003, order of the Warren Circuit Court which granted summary judgment to Keith A. Hewitt, M.D., Kela Lyons Fee, M.D., and the partnership of Hewitt, Davis and Fee (collectively the doctors); denied the appellants' motion for summary judgment; and excluded the testimony of their expert witness, Dr. Michael L. Resnick. We conclude that the issue of whether the trial court abused its discretion in excluding Dr. Resnick's testimony is moot. We also conclude that the trial court did not err in denying the appellants' motion for summary judgment. Thus, we affirm the trial court's order in part. We further conclude that the trial court erred in granting summary judgment to the doctors, as there was sufficient evidence to establish the standard of care and a genuine issue as to the breach of that standard of care. Thus, we reverse that portion of the trial court's order and remand for further proceedings consistent with this Opinion.
Appellants filed this action against the doctors alleging medical negligence in the birth of their son, Robert Benjamin Lee Harris, which caused his death on March 23, 1999. The appellants based their claim on a lack of informed consent, alleging that Dr. Hewitt failed, during the period of Venita's prenatal care, to counsel her concerning the risks of undergoing a vaginal birth, after she had previously given birth by cesarean section (C-section) and that any counseling Dr. Fee provided to Venita about the risks of the procedure and her options came after Venita was too far into labor for her to make a rational decision.
Venita and Ben were married in 1997, and on July 27, 1998, Venita saw Dr. Hewitt, who confirmed her pregnancy and began her prenatal care. Venita informed Dr. Hewitt that she had had a child by a prior marriage, approximately 16 years earlier, and that child had been delivered by C-section. Dr. Hewitt informed Venita that she might be able to give vaginal birth even after having delivered by C-section (VBAC). It is undisputed that Dr. Hewitt did not document the scope of his discussions with Venita during prenatal counseling with her. However, he testified that he discussed the advantages and disadvantages of both VBAC and C-section with Venita. Dr. Hewitt stated in his deposition taken on August 21, 2000, as follows:
Q: During your treatment of Venita after it was determined that she was pregnant, did you ever have a discussion with her about the risk of following a trial of labor?
A: Yes.
Q: Do you recall when that took place?
A: At every visit.
Q: Every visit?
A: Every visit. We talk about that every visit.
Q: Tell us exactly what you said every visit.
A: Well, basically, when they've come in with a previous C-section, I'll say: Well, you know you have the option to have a vaginal delivery, and if you desire so after we've educated you on all your findings and all the data, basically, there's risks both ways. There's risks of cesarean sections. There's risk of repeat V-backs . And I always tell them that there are things throughout the pregnancy that might change their decision. And I always try to tell them not to get bent on one decision at the beginning of the pregnancy because they may have data that pop up toward the end that will change their mind. And that frequently happens. You'll frequently have some women that will say they want a V-back and then some that say they want a C-section, and then at the end of the pregnancy will change th
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