                                                                              FILED
                                                                         Nov 17 2017, 9:10 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE,
                                                          MICHAEL P. HU, MD
Thomas L. Kirsch
Thomas L. Kirsch & Associates, P.C.                       Jeremy W. Willett
Munster, Indiana                                          Michael E. O’Neill
                                                          O’Neill McFadden & Willett, LLP
                                                          Schererville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Francisco Perez, Jr.,                                     November 17, 2017
Individually, and by Laura                                Court of Appeals Case No.
Aguirre his natural guardian and                          45A04-1701-CT-113
next friend, and Laura Aguirre,                           Appeal from the Lake Superior
Individually,                                             Court
Appellants-Plaintiffs,                                    The Honorable Thomas Webber,
                                                          Sr., Judge
        v.                                                Trial Court Cause No.
                                                          45D10-1409-CT-185
Michael P. Hu, M.D., and St.
Catherine Hospital of East
Chicago Indiana, Inc., an
Indiana Not-for-Profit
Corporation,
Appellees-Defendants.



Barnes, Judge.




Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                       Page 1 of 19
                                              Case Summary
[1]   Laura Aguirre, on behalf of her son Francisco Perez, Jr., appeals the trial

      court’s grant of a directed verdict in favor of Dr. Michael Hu. We reverse and

      remand.


                                                      Issue
[2]   The restated issue before us is whether the trial court properly granted directed

      verdict in Dr. Hu’s favor on the issue of whether Aguirre gave informed consent

      to give birth to Francisco vaginally rather than by caesarean section (“c-

      section”).


                                                      Facts
[3]   We present the evidence in a light most favorable to Francisco and Aguirre, in

      accordance with the standard of review for a directed verdict. Francisco is

      Aguirre’s fourth child. Her previous three children all were born vaginally

      without complications, including her last child, who weighed over ten pounds.


[4]   In early December 2009, Aguirre became the patient of Dr. Hu, an obstetrician-

      gynecologist (“OB-GYN”). Aguirre was seven months pregnant with Francisco

      at the time; her previous OB-GYN had moved her practice, and Dr. Hu took

      over Aguirre’s care. Aguirre was diagnosed with gestational diabetes and was

      treated for it. Gestational diabetes increases the risk of having a significantly

      larger than average, or macrosomic, baby. The combination of gestational

      diabetes and a macrosomic baby significantly increases the risk of shoulder

      dystocia during a vaginal birth. Shoulder dystocia occurs when the baby’s head
      Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 2 of 19
      exits the birth canal but one of the shoulders remains stuck behind the mother’s

      pubic bone, necessitating additional efforts by the doctor to complete the birth.

      Shoulder dystocia may result in brachial plexus injury to the baby, which is

      nerve damage that can cause permanent paralysis or palsy to the affected limb.

      Such injury may occur as the result of the doctor having to use additional

      traction on the baby to resolve the shoulder dystocia. A pregnant mother’s

      obesity also may increase the risk of shoulder dystocia during vaginal birth;

      Aguirre qualified as obese during her pregnancy. A c-section substantially

      reduces the risk of shoulder dystocia during birth.


[5]   Aguirre, who has an elementary school education and does not speak English,

      does not recall Dr. Hu ever discussing the increased risk of harm to her baby

      during a vaginal birth as opposed to a c-section.1 Rather, according to Aguirre,

      when she specifically asked Dr. Hu about the size of her baby and whether she

      would need a c-section, Dr. Hu said everything was fine and that she would not

      need one. She later testified, through an interpreter, “I told him that if [sic]

      everything was fine or if I was going to have operation. But he said that

      everything was fine. . . . He didn’t say anything about surgery.” Tr. Vol. II pp.

      69-71. Dr. Hu recalled that he did discuss with Aguirre the risks and benefits of

      vaginal birth versus c-section but recommended vaginal birth to her. Dr. Hu




      1
          An interpreter was present during Aguirre’s prenatal appointments with Dr. Hu.


      Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017          Page 3 of 19
      claimed to have documented this discussion with Aguirre in her medical chart,

      but any such documentation is missing from the chart. 2


[6]   On February 7, 2010, Aguirre went to the hospital for induction of labor, using

      the drug Pitocin to do so. The use of Pitocin to induce labor is an additional

      risk factor for shoulder dystocia during birth. Prior to her labor being induced,

      Aguirre signed a consent to treatment form, specifying that she was consenting

      to a vaginal delivery. Although Aguirre could not read the form because it was

      in English, it was translated for her by a phone translation service. The form

      stated in part:


               I understand this authorization and the reason why the operation
               is necessary, the possible complications and risk involved, the
               possible alternative approach(es) to this surgical method, and I
               acknowledge that no guarantee or assurance has been made as to
               results or cure. . . .


               Possible complications have been explained to me by my
               physician. I understand the material risks of this procedure. I
               also understand this is not intended to be an all inclusive list of
               possible complications associated with this procedure, and
               although less likely, other unforeseen complications may occur.
               I understand that medicine is not an exact science and that no
               guarantees can be made as to the outcome of this surgery.




      2
        There is a notation in Aguirre’s chart from an appointment with Dr. Hu on December 10, 2009, stating,
      “Multiple options discussed with patient. Patient to consider.” Tr. Vol. III p. 112. This notation alone does
      not establish that Dr. Hu discussed with Aguirre the relative risks and benefits of a vaginal delivery versus c-
      section, as opposed to other matters related to Aguirre’s prenatal care.

      Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                         Page 4 of 19
      Ex. 3 p. 7.


[7]   On February 8, 2010, Aguirre gave birth to Francisco. During the delivery,

      shoulder dystocia occurred. Dr. Hu had to apply additional pressure to

      Francisco’s head to deliver him. Francisco weighed eleven-and-a-half pounds

      and had to be placed in the neonatal intensive care unit of a different hospital

      for ten days. The shoulder dystocia resulted in brachial plexus injury to

      Francisco’s left arm. Francisco underwent two operations to attempt to correct

      that injury, but they were unsuccessful and he is unable to use that arm.


[8]   On February 2, 2012, Francisco and Aguirre filed a proposed medical

      malpractice complaint with the Indiana Department of Insurance against Dr.

      Hu and the hospital where Francisco was born. The proposed complaint

      alleged negligence by Dr. Hu and the hospital in Aguirre’s prenatal care and the

      delivery of Francisco. It also alleged that Dr. Hu failed to provide sufficient

      information to Aguirre to have allowed her to give informed consent to vaginal

      delivery versus a c-section. On July 16, 2014, a medical review panel

      unanimously opined that the evidence did not establish that Dr. Hu “failed to

      meet the applicable standard of care as charged in the complaint.” Appellee’s

      App. p. 37.


[9]   On September 12, 2014, Francisco and Aguirre filed a complaint against Dr.

      Hu and the hospital, largely mirroring their proposed complaint. A jury trial

      was held on October 31, 2016, to November 4, 2016. During trial, Aguirre

      presented the expert testimony of Dr. Bruce Halbridge; Dr. Halbridge is a long-


      Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 5 of 19
       time practicing OB-GYN and also currently a clinical instructor at the

       University of Texas-San Antonio medical school. He testified that he has

       delivered approximately 10,000 babies, that approximately 600 deliveries

       involved shoulder dystocia, but that none of those babies had brachial plexus

       injury. He stated that Aguirre had several risk factors associated with a

       significant increase in shoulder dystocia, including maternal obesity, gestational

       diabetes, a macrosomic fetus, and the induction of labor using Pitocin. Dr.

       Halbridge also explained that, if a mother is a diabetic, there is a three percent

       chance of shoulder dystocia during delivery; but, if a mother is diabetic and is

       giving birth to a macrosomic baby weighing more than ten pounds, the risk of

       shoulder dystocia increases to ninety-five percent.3


[10]   Dr. Halbridge went on to testify that, given Aguirre’s risk factors, Dr. Hu

       should have advised her of the risk of shoulder dystocia and resulting brachial

       plexus injury occurring during vaginal birth and the reduced risk of such injury

       during a c-section. As he explained:


                He could have told the patient that you’ve got this big baby,
                you’ve had uncontrolled diabetes, you have all these risk factors,
                and then explain what a shoulder dystocia is and what happens if
                the baby is born and the brachial plexus is injured, that it’s a
                permanent injury. And he could have recommended, and should
                have recommended, a c-section delivery. Because if you get a
                shoulder dystocia during a c-section, you can actually cut more



       3
         In his testimony, Dr. Hu agreed that the combination of maternal diabetes and a macrosomic baby
       increases the risk of shoulder dystocia by at least thirty-one percent, which number increases if the baby
       weighs more than ten pounds.

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                        Page 6 of 19
                room. You can make the opening in the uterus bigger and get
                the baby out easily. So, it’s not as dangerous as a shoulder
                dystocia vaginally, where you can’t cut the bone and make more
                room at the top of the womb.


       Tr. Vol. II p. 156. He further stated that there was no indication in Aguirre’s

       medical chart that Dr. Hu ever had such a discussion with Aguirre. Dr.

       Halbridge did not specifically testify about the general risks of a c-section versus

       vaginal delivery.4 He did testify as follows:


                Q: In your experience, when you tell a mother that there’s a one
                percent chance in your personal experience, if you tell your
                mother there’s a one percent chance of her baby having a serious
                injury if you proceed one way or the other way, what does the
                mother tell you?


                A: Mother will become fearful and the mother will choose the
                method eliminates [sic] the risk, even if it’s just one percent.


       Tr. Vol. III p. 149. Additionally, Aguirre testified that, if she had known the

       risk of injury to her baby by vaginal delivery, she would have chosen to have a

       c-section.


[11]   After Aguirre’s presentation of evidence, the hospital moved for directed verdict

       in its favor, which the trial court granted. Aguirre does not appeal that ruling.

       Also, Dr. Hu moved for a partial directed verdict, only as to the informed



       4
         Dr. Hu testified that there is a thirteen times greater risk of maternal death following a c-section and a
       fifteen times greater risk of infection, and also that there is an increased risk of fetal death, to an unspecified
       degree, due to respiratory distress.

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                             Page 7 of 19
       consent issue. The trial court took this matter under advisement but granted it

       after Dr. Hu’s presentation of evidence. The jury then returned a verdict in Dr.

       Hu’s favor on the remaining negligence claim against him. Aguirre now

       appeals the directed verdict in favor of Dr. Hu.


                                                    Analysis
[12]   Motions for directed verdict, also called motions for judgment on the evidence,

       are controlled by Indiana Trial Rule 50(A). Think Tank Software Dev. Corp. v.

       Chester, Inc., 30 N.E.3d 738, 744 n.4 (Ind. Ct. App. 2015), trans. denied. That

       rule provides in part:


               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


       A directed verdict is proper only if all or some of the issues are not supported by

       sufficient evidence. Think Tank, 30 N.E.3d at 744. “We will examine only the

       evidence and the reasonable inferences that may be drawn therefrom that are

       most favorable to the nonmovant, and the motion should be granted only where

       there is no substantial evidence supporting an essential issue in the case.” Id. A

       directed verdict or judgment on the evidence is improper if there is evidence

       that would allow reasonable people to differ as to the result. Id.




       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 8 of 19
[13]   The law in Indiana regarding informed consent is not entirely clear. What is

       clear is that “physicians have a duty to disclose to their patients information

       material to a proposed course of treatment.” Spar v. Cha, 907 N.E.2d 974, 984

       (Ind. 2009) (citing Bader v. Johnson, 732 N.E.2d 1212, 1217 (Ind. 2000)). “Lack

       of informed consent” is a theory of liability that is distinct from a medical

       malpractice claim that a doctor provided treatment that negligently failed to

       meet the requisite standard of care. Id. at 979. Lack of informed consent is

       viewed as a battery claim if there is an alleged complete lack of consent to

       medical treatment, but otherwise it is “regarded as a specific form of negligence

       for breach of the required standard of professional conduct.” Id. Aguirre’s lack

       of informed consent claim clearly is of the second type.


[14]   What is less clear is precisely what the elements of an informed consent claim

       are, and to what extent expert testimony is required to prove such a claim.

       Twenty-five years ago, our supreme court decided Culbertson v. Mernitz, 602

       N.E.2d 98 (Ind. 1992). In a 3-2 decision, the court addressed whether a

       “reasonably prudent physician” or “reasonably prudent patient” standard is

       controlling in informed consent cases and whether expert testimony is required

       to prove an informed consent claim. The majority stated:


               Resolution of the issue of the necessity of expert medical
               testimony in informed consent cases depends on whether the
               issue is viewed through the eyes of the physician or the patient.
               When viewed through the eyes of the physician, it is easy to see
               that a physician should not be required to guess or speculate as to
               what a hypothetical “reasonably prudent patient” would “need to
               know” in order to make a determination. A physician should

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 9 of 19
               only be required to do that which he is trained to do, namely,
               conduct himself as a reasonably prudent physician in taking a
               history, performing a physical examination, ordering appropriate
               tests, reaching a diagnosis, prescribing a course of treatment, and
               in discussing with the patient the medical facts of the proposed
               procedure, including the risks inherent in either accepting or
               rejecting the proposed course of treatment. From a physician’s
               viewpoint, he should not be called upon to be a “mind reader”
               with the ability to peer into the brain of a prudent patient to
               determine what such patient “needs to know,” but should simply
               be called upon to discuss medical facts and recommendations
               with the patient as a reasonably prudent physician would.


       Culbertson, 602 N.E.2d at 103. Ultimately, the majority concluded, “except in

       those cases where deviation from the standard of care is a matter commonly

       known by lay persons, expert medical testimony is necessary to establish

       whether a physician has or has not complied with the standard of a reasonably

       prudent physician.” Id. at 104. The majority did not explicitly adopt a set of

       elements needed to prove an informed consent claim.


[15]   The lengthy dissent began by citing a decision by that court in the previous year

       in Matter of Lawrance, 579 N.E.2d 32, 39 (Ind. 1991). The dissent stated:


               Emphasizing respect for patient autonomy, we acknowledged
               that liberty interests protected in the Indiana Constitution and
               public policy values preserved in Indiana statutory and common
               law reflect “a commitment to patient self-determination.” In
               seeming disregard of these fundamental principles, however,
               today’s decision rejects the prudent patient standard in informed
               consent cases. It ignores “the basic human need of self-
               determination and individual autonomy” in deference to
               decision-making by physicians.

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 10 of 19
        The central concern of the majority appears to be whether a
        plaintiff should be permitted to establish an informed consent
        claim without presenting expert medical testimony. This issue
        should not blind the Court to the basic values articulated in
        Lawrance. Nor does the prudent patient standard eliminate the
        need for a plaintiff to present medical expertise.


Culbertson, 602 N.E.2d at 104 (Dickson & DeBruler, JJ, dissenting). The dissent

also observed:


        Although there is widespread acceptance of the doctrine of
        informed consent as a theory of liability, there is disagreement
        concerning the role of expert medical witnesses in determining
        whether the informed consent of the patient has been obtained.
        Those invoking the “prudent patient” standard assess the
        adequacy of the disclosure by requiring mention of all inherent
        risks which a reasonably prudent patient would consider material
        in deciding to undergo or forego a particular procedure. While
        medical expertise would be required to identify the risks of
        proposed treatment and non-treatment, the fact finder needs no
        expert guidance to determine the materiality of a particular risk
        to a patient. The “prudent physician” standard, on the other
        hand, evaluates the adequacy of the risk disclosure only from the
        physician’s viewpoint.


Id. at 105. The majority did not respond directly to the dissent’s arguments.

Thus, it appeared after Culbertson that an informed consent claim rested entirely

upon what a “reasonably prudent physician” would believe necessary to

disclose, as proven by expert testimony, without reference to what a

“reasonably prudent patient” would want to know.




Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 11 of 19
[16]   In later years, our supreme court has seemingly drifted away from the majority

       holding in Culbertson and toward the dissent’s view, although it has never been

       overruled. In Weinberg v. Bess, 717 N.E.2d 584, 588 n.5 (Ind. 1999), the court

       stated, “Under the doctrine of informed consent, a physician must disclose the

       facts and risks of a treatment which a reasonably prudent physician would be

       expected to disclose under like circumstances, and which a reasonable person would

       want to know.” (Emphasis added). For this proposition, the court cited a part of

       the Culbertson opinion that was discussing cases from other jurisdictions that

       had adopted the view that “a jury is in the best position to determine whether

       the physician gave the patient the information needed by the patient to weigh

       the alternatives and make the ultimate decision of whether to proceed with the

       proposed treatment.” Culbertson, 602 N.E.2d at 100 (citing Cobbs v. Grant, 8

       Cal.3d 229 (1972)). However, this was precisely the position the Culbertson

       majority seemed to end up rejecting and the dissent wanted to adopt. There is

       nothing in the Culbertson majority opinion indicating that “and which a

       reasonable person would want to know” is an element of an informed consent

       case in Indiana.


[17]   Nevertheless, our supreme court subsequently cited the Weinberg footnote as a

       correct statement of the law of informed consent, in Spar, 907 N.E.2d at 984.

       The Spar opinion also adopted a five-element framework for informed consent

       claims, derived from a treatise on torts. Those elements, which a plaintiff must

       prove, are: (1) nondisclosure of required information; (2) actual damage; (3)

       resulting from the risks of which the patient was not informed; (4) cause in fact,

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 12 of 19
       or proof that the plaintiff would have rejected the medical treatment if he or she

       had known of the risk; and (5) that reasonable persons, if properly informed,

       would have rejected the proposed treatment. Id. at 979-80.


[18]   Assuming these are currently the five elements of an informed consent claim in

       Indiana, it seems clear that no expert testimony would be required with respect

       to whether a particular disclosure did or did not occur, nor as to whether the

       plaintiff herself would have chosen different treatment if she had known of the

       risk involved with the performed treatment. On the other hand, expert

       testimony generally is required to determine what a reasonably prudent

       physician should tell a patient before performing a medical procedure, unless

       the matter is within a layperson’s understanding. Bowman v. Beghin, 713 N.E.2d

       913, 916-17 (Ind. Ct. App. 1999).5 Additionally, whether actual damage was

       caused as a result of an inadequate disclosure generally is a matter requiring

       expert opinion. Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App. 1999).


[19]   In the present case, Dr. Halbridge’s expert testimony clearly provided evidence,

       though disputed by Dr. Hu, that Aguirre’s baby was at high risk of




       5
           What a doctor must disclose to a patient also is enumerated by statute, and includes:

                  (1) The general nature of the patient’s condition.
                  (2) The proposed treatment, procedure, examination, or test.
                  (3) The expected outcome of the treatment, procedure, examination, or test.
                  (4) The material risks of the treatment, procedure, examination, or test.
                  (5) The reasonable alternatives to the treatment, procedure, examination, or test.
       Ind. Code § 34-18-12-3.

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                     Page 13 of 19
       encountering shoulder dystocia and resulting brachial plexus injury during a

       vaginal birth, that she should have been advised of that risk, and that she should

       have been advised that a c-section, while not eliminating the possibility of

       shoulder dystocia, would greatly reduce the risk of brachial plexus injury. Dr.

       Halbridge also believed Aguirre should have been expressly advised to have a c-

       section. Through a combination of Aguirre’s lay testimony and Dr. Halbridge’s

       expert review of her medical chart, there was evidence that Dr. Hu did not

       convey such information and advice to Aguirre. There was expert testimony by

       Dr. Halbridge that the decision to have a vaginal delivery rather than a c-

       section did, in fact, result in a difficult-to-resolve shoulder dystocia that left

       Francisco with brachial plexus injury and permanent, severe damage to his left

       arm. There was Aguirre’s testimony that she would have elected to have a c-

       section rather than a vaginal delivery if she had known of the significant

       reduction of a risk of harm to her baby by having a c-section. This evidence

       satisfies the first four of the five Spar elements for an informed consent claim—

       evidence sufficient to defeat a motion for directed verdict.


[20]   Here, the primary focus of the parties’ dispute is whether Aguirre had to present

       expert testimony in support of the element that a properly-informed reasonable

       person would have rejected Dr. Hu’s proposed treatment—i.e., whether an

       objectively reasonable person would have chosen to have a c-section rather than

       a vaginal delivery. There is currently no clear answer to that question. To

       require expert testimony in support of that element would seem consistent with

       the Culbertson majority’s rejection of a “reasonable patient standard” for


       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 14 of 19
informed consent claims and its requirement that an informed consent claim be

proven by expert testimony. On the other hand, the very fact that our supreme

court now has adopted the “reasonable patient” test as an element of an

informed consent claim arguably indicates an implicit overruling of Culbertson

and agreement with the dissent. In accordance with that view, expert testimony

would be required as to some informed consent elements but not others.

Namely, “[w]hile medical expertise would be required to identify the risks of

proposed treatment and non-treatment, the fact finder needs no expert guidance

to determine the materiality of a particular risk to a patient.” Culbertson, 602

N.E.2d at 105 (Dickson & DeBruler, JJ, dissenting) (citing Canterbury v. Spence,

464 F.2d 772, 787 (D.C. Cir. 1972), cert. denied). Furthermore, as a matter of

the meaning of a “reasonable person” standard in legal parlance, normally it is

an objective standard measured by the collective judgment of a lay jury, not

experts. See Pierce v. Horvath, 142 Ind. App. 278, 285, 233 N.E.2d 811, 815

(1968) (stating that the “reasonable man” standard “‘is a personification of a

community ideal of reasonable behavior, determined by the jury’s social

judgment.’”) (quoting Prosser’s Treatise on Torts, § 32 p. 154 (3rd ed. 1964)).

Under this standard, it would be up to the jury to decide, based on its collective

judgment and experience and not expert testimony, whether a reasonable




Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 15 of 19
       person would have chosen a different course of medical treatment if he or she

       had been adequately informed.6


[21]   Regardless, even if we were to assume that Aguirre was required to present

       expert testimony that a “reasonable person” in Aguirre’s situation would have

       chosen to have a c-section instead of a vaginal delivery if she had been properly

       informed, we believe Aguirre did so. We emphasize the following testimony by

       Dr. Halbridge:


               Q: In your experience, when you tell a mother that there’s a one
               percent chance in your personal experience, if you tell your
               mother there’s a one percent chance of her baby having a serious
               injury if you proceed one way or the other way, what does the
               mother tell you?


               A: Mother will become fearful and the mother will choose the
               method eliminates [sic] the risk, even if it’s just one percent.


       Tr. Vol. III p. 149. This expert testimony, based on years of experience and

       10,000 deliveries, is evidence that a “reasonable” mother in Aguirre’s

       position—faced with a risk of serious injury to her baby if there was a vaginal

       birth and a substantial reduction of that risk if there was a c-section—would

       have chosen to have a c-section. Certainly, it would be reasonable for a jury to

       draw such an inference. Dr. Hu writes off this testimony because it does not



       6
         Such a standard would not require the jury to find that any and every person would have chosen a different
       course of treatment if adequately informed. As noted by the American Medical Association and quoted by
       the Culbertson majority, “Rational, informed patients should not be expected to act uniformly, even under
       similar circumstances, in agreeing to or refusing treatment.” Culbertson, 602 N.E.2d at 104.

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017                    Page 16 of 19
       reflect the concomitant risks of a c-section that are greater than a vaginal

       delivery. That, however, goes to the weight of Dr. Halbridge’s testimony, not

       its sufficiency as a matter of law. It would be reasonable for a jury to presume

       that Dr. Halbridge’s recommendation of a c-section in situations such as

       Aguirre’s, and mothers’ election of that procedure, take into account the risks

       associated with a c-section.


[22]   We also acknowledge that Aguirre signed a consent-to-treatment form to have a

       vaginal delivery, after having the form translated to her. Indiana Code Section

       34-18-12-2 provides:


               If a patient’s written consent is:


                        (1) signed by the patient or the patient’s authorized
                        representative;


                        (2) witnessed by an individual at least eighteen (18) years
                        of age; and


                        (3) explained, orally or in the written consent, to the
                        patient or the patient’s authorized representative before a
                        treatment, procedure, examination, or test is undertaken;


               a rebuttable presumption is created that the consent is an
               informed consent.


       In interpreting this statute, the Seventh Circuit has held that a rebuttable

       presumption arises under this statute only if a doctor has complied with the

       disclosure requirements of Indiana Code Section 34-18-12-3, including “[t]he

       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017    Page 17 of 19
       material risks of the treatment, procedure, examination, or test” and “[t]he

       reasonable alternatives to the treatment, procedure, examination, or test.”

       Lasley v. Moss, 500 F.3d 586, 590 (7th Cir. 2007). As we have explained, there

       are disputed issues of fact here regarding whether Dr. Hu adequately explained

       the risks of a vaginal delivery by Aguirre and the reasonable alternative of

       having a c-section instead.


[23]   Additionally, “[t]his chapter does not relieve a qualified health provider of the

       duty to obtain an informed consent.” I.C. § 34-18-12-4. It makes little sense

       that Aguirre could be bound by a consent form stating that she had been told of

       “the possible complications and risk involved, the possible alternative

       approach(es) to this surgical method,” and that she “understand[s] the material

       risks of this procedure” if she is able to prove that she was unaware of and not

       told of certain risks, possible complications, and an alternative treatment. In

       other words, even if a rebuttable presumption of informed consent arose here

       because of the consent form, Aguirre presented evidence that could have

       rebutted that presumption in the eyes of a jury.


                                                  Conclusion
[24]   Aguirre presented sufficient evidence that Dr. Hu did not convey adequate

       information to her regarding a significant risk of injury to her baby if she

       delivered vaginally rather than by c-section. Therefore, the trial court

       erroneously granted Dr. Hu’s motion for directed verdict on the issue of

       informed consent. We reverse and remand for further proceedings on that

       issue.
       Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 18 of 19
May, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 45A04-1701-CT-113 | November 17, 2017   Page 19 of 19
