Kathryn Davis Messerich, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent Abbott Northwestern Hospital)

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 Respondent Dr. Roger Larson)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.

In this medical malpractice action, appellants Jody J. and Todd C. Holtan argue that the trial court erred (1) by refusing to grant their motion for a judgment notwithstanding the verdict, (2) in its jury instruction regarding the emergency exception to the informed consent requirement, and (3) by excluding evidence. We affirm.

On November 1, 1992, Jody's water broke. The Holtans arrived at the hospital at about 9:45 p.m. After learning the details of Jody's condition, Dr. Larson thought that a vaginal birth was an option for Jody. Dr. Larson testified that Jody was in pain, was apprehensive about a vaginal birth, and said she wanted a cesarean section. Dr. Larson testified that he wanted to explain the advantages of vaginal birth over cesarean section. He ordered an epidural catheter to ease Jody's pain so that she would be comfortable while making a decision about how to proceed with the delivery. Dr. Larson said that once Jody's pain was controlled, "[I]f she still insisted upon having a cesarean section, I would have done one at that point."

At about 11 to 11:15 p.m., an anesthesiologist attempted to place an epidural catheter. Because Jody reported an urge to push, the procedure was abandoned. At approximately 11:25 p.m., Jody was "9 plus" centimeters dilated. Dr. Larson testified that for a woman who has never delivered a baby vaginally, the second stage of labor--the time between full dilation (10 centimeters) and birth--is about 50 minutes. The room was then prepared for the impending vaginal delivery. A nurse testified that an inch to an inch and a half of the baby's scalp was showing. Ten to 15 seconds later, at 11:37 p.m., the baby was explosively propelled past the nurse's hand, landing on delivery pads on the floor.[1] Dr. Larson then delivered the placenta and repaired a vaginal tear.

The Holtans filed suit, claiming that Dr. Larson and the hospital were negligent and that Jody did not give consent for a vaginal birth. The jury found that (1) neither Dr. Larson nor the hospital was negligent, and (2) although Dr. Larson did not obtain consent for a vaginal delivery, he was justified in not doing so. The Holtans moved for judgment notwithstanding the verdict or a new trial. The trial court denied the motions.

A patient may bring a cause of action against a treating physician if the treatment consists of a touching that is substantially different from that to which the patient consented. Cornfeldt v. Tongen, 262 N.W.2d 684, 699 (Minn. 1977). But a physician may be excused from obtaining consent when immediate treatment is necessary to save the patient's life or health. Bang v. Charles T. Miller Hosp., 251 Minn. 427, 433-34, 88 N.W.2d 186, 190 (1958).

The Holtans argue that Dr. Larson should not be allowed to rely on the emergency justification because his failure earlier in the labor to perform the agreed-upon cesarean section necessitated the vaginal birth. They claim the evidence shows that there was ample time to complete a cesarean section if it had been commenced at an earlier time.

We cannot say that reasonable minds could reach only one conclusion against the verdict. The timing of events made this a highly irregular birth, and there was no testimony that Dr. Larson breached the standard of care by making arrangements to discuss birthing options with Jody. Dr. Larson testified that after controlling Jody's pain, he would have performed a cesarean section if she had insisted. It may be easy to see in hindsight that the time that elapsed due to Dr. Larson's desire to reevaluate and discuss Jody's evolving options made the vaginal birth necessary. The unusual nature of this birth, however, supports the jury's determination that Dr. Larson was reasonably justified in delivering the baby vaginally without Jody's consent.

2. The Holtans argue they are entitled to a new trial because there was no basis for giving an emergency instruction to the jury and the instruction as given was incorrect. Absent an abuse of discretion, we will not reverse a trial court's ruling on a new trial motion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 Minn. 1990). A trial court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).

The rules of civil procedure require a party to object to instructions to preserve the issue for appeal. Minn. R. Civ. P. 51. The Holtans explicitly agreed to the jury instructions, which included the emergency exception. A party may, however, raise "[a]n error in the instructions with respect to fundamental law or controlling principle" in a motion for a new trial even if "it was not otherwise called to the attention of the court." Id. Because the Holtans objected to the instruction for the first time in their new trial motion, our review is limited to errors of fundamental law or controlling principles. An error is fundamental or controlling if it causes a miscarriage of justice, destroys the substantial correctness of the instructions as a whole, or results in substantial prejudice on a vital issue. Marshall v. Galvez, 480 N.W.2d 358, 362-63 (Minn. App. 1992).

We find no error in the jury instructions. The Holtans contend there was no need for an instruction because there was no emergency preventing Dr. Larson from performing the cesarean section earlier in the evening. The evidence is clear, however, that when the birth became imminent, Dr. Larson had no other choice but to deliver the baby vaginally. Getting Jody's consent at that point would have been impractical and futile. As Dr. Larson points out, the emergency arose because stage two of Jody's labor, which normally takes almost an hour, occurred almost instantly. Further, the instruction as a whole accurately conveyed the justification defense, and the trial court acted within its broad discretion in choosing the language of the instruction.

3. The Holtans argue that the trial court erred by excluding evidence that the baby landed on the floor during delivery. A trial court has broad discretion in determining whether to exclude or admit evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A party is entitled to a new trial on the basis of improper evidentiary rulings only if it can show prejudicial error. Id. Relevant evidence may be excluded if the danger of unfair prejudice outweighs its probative value. Minn. R. Evid. 403.

We believe that the baby's expulsion was probative because it tended to show and explain the severity of Jody's injuries. Because the jury found that Dr. Larson and the hospital were not liable for Jody's injuries, however, damages were not an issue. As for the Holtans' arguments that suppressing the evidence affected their ability to present credible testimony, we conclude that these considerations do not rise to a level of prejudicial error.

Affirmed.

[ ]¹ There has been no claim of injury to the baby.