This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Nicholas Brown, etc., et al.,


Park Nicollet Clinic HealthSystem Minnesota, et al.,

Filed May 15, 2001


Peterson, Judge


Scott County District Court

File No. C9903920


Adam M. Samaha, Kathleen Flynn Peterson, Randall Tietjen, Anne E. Workman, Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN  55402-2015 (for appellants)


William M. Hart, Katherine A. McBride, Barbara A. Zurek, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for respondents)


            Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellants Audrey and Mark Brown, individually and as the parents and natural guardians of Nicholas Brown, brought this medical malpractice action against respondents Park Nicollet Clinic HealthSystem Minnesota and George E. Lundgren, M.D., alleging that Nicholas Brown suffers from cerebral palsy as a result of respondents’ failure to adequately warn Audrey Brown about the risks of attempting a vaginal delivery after a previous delivery by cesarean section.  The jury determined that appellants failed to show that a reasonable person in Audrey Brown’s position would have opted for a cesarean delivery if she had been adequately informed of the risks of vaginal birth after cesarean delivery (VBAC), the showing required to prove causation.  Appellants contend that they are entitled to JNOV because they proved causation as a matter of law.  They also contend that they are entitled to a new trial based on defense counsel’s improper argument to the jury, the trial court’s inadequate response to the improper argument, and the resulting prejudice.  We affirm.


            In 1992, Audrey Brown was pregnant with her third child.  Because her second child had been delivered by cesarean section, she assumed that the third one would be delivered by cesarean section.  She was not aware that vaginal birth was an option following a cesarean section.  In May 1992, Audrey Brown saw Lundgren, her family physician, for prenatal care.  Lundgren referred her to Dr. Stephen November, an obstetrician/gynecologist.

            When Audrey Brown saw November, he discussed the VBAC procedure with her.  November explained to her that because she had had a transverse, or horizontal, and not a vertical incision in her uterus and because she had had a previous vaginal delivery, she was a good candidate for VBAC.  A transverse incision is least likely to result in complications in VBAC because it heals with a stronger scar.  The benefits of vaginal delivery include shorter recovery time, easier bonding with the baby in terms of nursing, and a decreased risk of the mother dying or suffering complications.

            There was conflicting evidence as to whether November discussed the risks involved in VBAC with Audrey Brown.  Audrey Brown testified that November did not discuss any risks involved in VBAC with her and that on the contrary, he said that any risks involved in the procedure did not apply to her because she had a transverse uterine scar.  November testified that he explained the risks and benefits of VBAC.  November testified that he followed his standard procedure in advising Audrey Brown of the risks of VBAC:

* * * I tell them if you have a transverse incision that you’re a good candidate [for VBAC] because [the uterus is] less likely to rupture.  I don’t say you have just no risk of rupture, I say there’s less risk of rupture, and usually I tell them that that occurs perhaps one out of two or three hundred times perhaps 10 or 20% of the time there could be problems for the baby such as some emergency or -- and certainly that it could be a serious problem, but that we try to set things up in terms of having an operating room ready and notify anesthesia and the operating room people that we have such a situation or we have somebody in trial of labor, so if a serious situation or emergency situation occurs we can take care of it as soon as humanly possible.


November testified that he advised Audrey Brown that a uterine rupture would require an emergency cesarean section and could result in fetal distress.  November did not advise Audrey Brown that a uterine rupture could result in death or permanent neurological injury to the baby.

            November also gave Audrey Brown a pamphlet on VBAC prepared by the Committee on Patient Education of the American College of Obstetricians and Gynecologists.  Audrey Brown looked through the pamphlet while November discussed VBAC with her.  The pamphlet states:

Your doctor will need to consult your medical records from the previous cesarean birth to verify which type of uterine incision was used.  This is because the main risk to both you and your baby during an attempted vaginal birth is separation or rupture of the scar left by that incision.  Rupture may be more or less likely, depending on what type of incision was used.


            * * * *


            The transverse incision * * * is usually preferred for cesarean delivery.  It heals with a stronger scar and is least likely to result in complications in a subsequent vaginal delivery.


            * * * *


            * * * Because an attempt to deliver vaginally after a previous cesarean birth carries some risk, certain protective measures will be taken during labor and delivery.  It is important that the setting in which you give birth be equipped to perform necessary procedures quickly so that if a problem does occur during labor, an emergency cesarean delivery can be carried out.


            During labor, fetal monitoring will be used to detect unusual changes in the fetus’s heart rate.  With this procedure, the heartbeat and activity of the fetus, as well as contractions of the mother’s uterus, are measured and recorded.  Fetal monitoring cannot always prevent a problem, but it can help your doctor be alert to warning signs.


            After seeing November, Audrey Brown returned to Lundgren for ongoing prenatal care.  Lundgren testified that he discussed the risk of uterine rupture with Audrey Brown and that because, as a matter of personal philosophy, he does not favor VBAC, he encouraged Audrey Brown to undergo a repeat cesarean.  Lundgren testified that Audrey Brown’s previous cesarean had been very difficult and painful, that her biggest concern was not having another painful delivery, and that she was very frightened of having a repeat cesarean. Audrey Brown denied that Lundgren discussed any risks of VBAC with her, that he encouraged her to have a repeat cesarean, and that she did not want to have a repeat cesarean because the first one was painful.  According to Lundgren, he and Audrey Brown discussed VBAC at just about every prenatal appointment, and she repeatedly changed her mind regarding which option she preferred.

            Audrey Brown went into labor and was admitted into the hospital.  During labor, her uterus ruptured, and an emergency cesarean section was performed.  The fetus was found extruded from Audrey Brown’s uterus, and the placenta had separated from the uterus.  As a result, Audrey and Mark Brown’s son, Nicholas Brown, suffers from cerebral palsy.

            Respondents’ expert, Dr. David Curran, testified that about half of his patients, after being advised of the pros and cons of VBAC, consent to VBAC.  Appellants’ expert, Dr. Anthony Giefer, testified that VBAC and a repeat cesarean are both medically appropriate options and that reasonable people, after being fully apprised of the risks and benefits of the two procedures, have chosen each of the two alternatives.  Giefer opined that Lundgren and November deviated from standard practice for obtaining informed consent to VBAC.  Specifically, Giefer testified that the doctors were obligated to inform Audrey Brown that uterine rupture and neurological injury to the baby, or even death, were risks of VBAC.


            1.  Appellants argue that they proved causation as a matter of law and, therefore, they were entitled to JNOV.  This court reviews the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  This court must view the evidence in the light most favorable to the prevailing party and must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.  Id.  The evidence must be practically conclusive against the verdict so that reasonable minds can reach only one conclusion.  Nadeau v. County of Ramsey, 277 N.W.2d 520, 522 (Minn. 1979).

            A claim for negligent nondisclosure focuses on a doctor’s duty to inform patients of the risks attendant upon certain medical procedures.  To [prove causation in] a claim for negligent nondisclosure plaintiff must demonstrate that a reasonable person knowing of the risk would not have consented to treatment, and that the undisclosed risk actually materialized in harm.


            Doctors have a duty to disclose risks of death or serious bodily harm which are a significant probability.  A doctor must also disclose risks which a skilled practitioner of good standing in the community would reveal, and to the extent a doctor is aware that a patient attaches a particular significance to risks not generally considered serious enough to require discussion, these too must be discussed.

K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995) (citations omitted); see also Reinhardt v. Colton, 337 N.W.2d 88, 96 (Minn. 1983) (explaining two-part test for causation).

            The supreme court has adopted an objective standard for proving that disclosure would have caused a refusal to consent to treatment.  The test is whether a reasonable person in the plaintiff’s position would have refused the treatment had she been informed of the undisclosed risk.  Cornfeldt v. Tongen, 262 N.W.2d 684, 701 (Minn. 1977) (Cornfeldt I) (citing Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972)).  Although the test is objective, a patient’s testimony regarding whether she would have consented to the procedure had she been adequately informed of the risks is relevant to determining causation.  See Canterbury, 464 F.2d at 790-91 (a patient’s testimony is relevant in determining whether adequate disclosure of the risk that materialized in harm could reasonably have been expected to have caused her to decline the treatment); see also Reinhardt, 337 N.W.2d at 96 (holding that patient’s testimony regarding the nature of the risks of which she was made aware, her view of the severity of the allegedly undisclosed risks relative to the benefits of the treatment, and regarding her injuries was sufficient to establish elements for which expert testimony not required: to prove that reasonable person in patient’s position would have refused treatment had she been informed of the undisclosed risk).

            Appellants argue that evidence showing that it is reasonable for a woman, when adequately informed of the risks of VBAC, to opt for a cesarean delivery proved causation as a matter of law.  Giefer testified that both VBAC and repeat cesarean are medically appropriate options and that “reasonable people may choose one, reasonable people may choose the other.”  Curran testified that about half of his patients, after being advised of the pros and cons of VBAC, consent to VBAC.  Literature introduced into evidence showed that 40 to 50% of women who are eligible for a VBAC opt for a repeat cesarean.

            Appellants’ argument that this evidence establishes causation as a matter of law misapplies the burden of proof.  In an ordinary civil action, the plaintiff has the burden of proving every essential element of his case by a fair preponderance of the evidence.  Wick v. Widdell, 276 Minn. 51, 53-54, 149 N.W.2d 20, 22 (1967).

This means that all of the evidence, regardless of which party produced it, must lead you to believe that the claim is more likely true than not true.


4 Minnesota Practice, CIVJIG 14:15 (2000).  The evidence cited by appellants is insufficient to establish that it is more likely than not that a reasonable person, being adequately informed of the risks and benefits of VBAC, will opt for a repeat cesarean.  The evidence establishes at most an equal likelihood of both possibilities, a person opting for VBAC and a person opting to have a repeat cesarean.

            Appellants also argue that the evidence that up to 50% of patients opt for a repeat cesarean, considered together with Audrey Brown’s testimony that she initially preferred to have a repeat cesarean and would have done so if she had not been advised that VBAC was risk free, established causation as a matter of law.  But there was also evidence that Audrey Brown’s previous cesarean had been very difficult and painful, that her biggest concern was not having another painful delivery, and that she was very frightened of having a repeat cesarean.  There was evidence that in patients with a transverse incision, the risk of uterine rupture is only one in 200 or 300 and, of those cases, only about 10 to 20% result in an emergency or potentially serious problem for the baby.

Considering the evidence as a whole and viewing it in the light most favorable to the verdict, the district court did not err in denying appellants’ motion for JNOV.  Respondents presented evidence that some of the risks of VBAC were disclosed to Audrey Brown.  The jury could reasonably have concluded that even if Audrey Brown had been given additional information about the risk of uterine rupture and the possibility of death or neurological injury to the baby, given the small risk of uterine rupture and the even smaller risk of a serious problem for the baby, Audrey Brown would, nevertheless, have chosen to go ahead with VBAC.

            2.  Appellants argue that they are entitled to a new trial based on improper closing argument by respondents’ counsel.

The decision whether to grant a new trial due to improper argument by counsel rests almost entirely within the discretion of the trial court and should not be reversed on appeal absent a clear abuse of discretion.


Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989) (citations omitted).

            Appellants object to the following argument as improper:

[The court has given you] an instruction on negligence and reasonable care.  The definition of negligence is doing something a reasonable person would not do.


            Question #2 on this verdict form:  “Would a reasonable person have not gone forward” and hence anybody who does go forward, by that definition would be negligent.  By the law’s definition of negligence, if you believe that reasonable people will not go forward you’ll have to conclude that those women who do are negligent.  And I think that’s hardly the case.


            * * * *


            * * * Would a reasonable person * * * not [Audrey] Brown, because [Audrey] Brown now has had a bad outcome and it’s pretty hard to imagine anybody sitting her saying, yeah if I knew that was going to happen I’d do it again, but “would a reasonable person.”  Do reasonable people every day make that decision and accept those risks and go forward?  Absolutely.  Would a reasonable person have refused VBAC under those circumstances?  And I think the answer there again is no.  No, reasonable women do that every day.  They aren’t negligent.  Reasonable women do that every day.


The district court gave a curative instruction directing the jury to follow the court’s instruction on negligence and to disregard any argument by counsel that differed from the court’s instructions.  The district court also allowed appellants’ counsel to argue that negligence applied only to the doctors’ duty to disclose risks and not to Audrey Brown’s decision whether to proceed with VBAC.  In denying appellants’ motion for a new trial, the district court found that its curative instruction was an inadequate response to respondents’ counsel’s improper argument.  The court explained:

The Court should have told the jury that the “negligence” definition should have been applied in the jury’s consideration of Question #1, but not Question #2.  [Appellants’] counsel forcefully made this point in her closing argument, but the Court’s instruction would have carried more weight.


Even if respondents’ counsel’s argument was improper and the curative instruction was inadequate, appellants still needed to demonstrate prejudice to obtain a new trial.

The purpose of a new trial is not to punish counsel, but to cure prejudice.  A new trial is not warranted unless the misconduct of counsel clearly resulted in prejudice to the losing party.


Sather v. Snedigar, 372 N.W.2d 836, 839 (Minn. App. 1985).  The district court is in a much better position than the appellate court to determine whether improper argument by counsel resulted in prejudice.  Ellingson v. Burlington Northern R.R. Co., 412 N.W.2d 401, 405 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987); see also Smith v. Great Northern Ry. Co., 133 Minn. 192, 194, 158 N.W. 46, 47 (1916) (when trial court refused party’s request for curative instruction, party was entitled to a new trial upon a showing of substantial prejudice).

            The district court found that the improper argument was not severe misconduct and that it did not result in prejudice:

            The main “danger” in [respondents’ counsel’s argument] arises from the negative connotations that the word “negligent” carries with it.  In other words, in its common usage, the word implies some kind of fault, which can range from illogical thinking or behavior to nearly a moral lapse.  Thus, when defense counsel argued that if [appellants’] theory was correct, then anyone who chose VBAC would have to be negligent, the jury may have gone through the following though process:  that negligence carries with it a negative connotation; they would not be willing to brand Audrey Brown with that connotation (in part because she is a very sympathetic person who has undergone a terrible tragedy); therefore Audrey Brown was not negligent; therefore, reasonable people in the position of Audrey Brown are not negligent in making the same choice she did; and finally that a reasonable person in Audrey Brown’s position would therefore not refuse VBAC.


            The Court is troubled by the aforesaid “danger.”  * * * [A]fter giving the matter much consideration, the Court doubts that the objected to portion of the argument had a significant impact on the jury, and thus cannot say that the argument clearly resulted in prejudice to [appellants].  The Court’s speculation, above, on what the jury may have thought is simply that.  Furthermore, the jury could just as easily have come up with the same analysis without invitation from defense counsel.  In other words, they had the definition of “negligence” before them in the written jury instructions.  Any astute juror could have noted the same interesting point that [respondents’] counsel made in her closing.


            Appellants argue that the district court erred in determining that they were not prejudiced without expressly addressing the strength of the evidence on causation.  The cases relied on by appellant to support this argument are distinguishable from this case in that they involved either the cumulative effect of errors in addition to improper argument or more serious misconduct than any that occurred in this case.  See, e.g., Byrns v. St. Louis County, 295 N.W.2d 517, 521 (Minn. 1980) (cumulative effect of error); Ellwein v. Holmes, 243 Minn. 397, 401, 68 N.W.2d 220, 222 (1955) (in action for fraudulent misrepresentation, counsel’s argument that defendant concealed documents in an effort to avoid liability was directly contrary to the evidence in the record).  Given the deference accorded the district court’s determination of prejudice, we cannot conclude that the district court erred in finding that appellants were not prejudiced by any improper argument and denying their motion for a new trial.



*          Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.