A medical malpractice claim alleging lack of informed consent requires expert medical testimony to establish harm, Ohio’s high court has ruled.
In a case arising from a medical malpractice suit filed by Robert and Mary White against Dr. Warren Leimbach II, the Supreme Court of Ohio found that the tort of lack of informed consent is a medical claim and requires expert medical testimony to establish: 1) the material risks or dangers inherent in a procedure, and 2) that an undisclosed risk or danger actually materialized and proximately caused injury, according to an announcement released by the Court.
The Court further explained that it is for the trier of fact to determine whether a patient would have agreed to the procedure had the risks or dangers been disclosed.
The court’s majority opinion, authored by Justice Terrence O’Donnell, reversed a ruling by the 10th District Court of Appeals.
The complaint alleged that Leimbach performed a second discectomy back surgery on Robert White without adequately disclosing that there was a higher risk of negative results from a follow-up discectomy than from his first operation, and therefore failed to obtain White’s informed consent before performing the second surgery.
The trial court found in Leimbach’s favor, determining that the Whites failed to present expert testimony concerning whether the material risks and dangers of the second surgery actually materialized and proximately caused injury.
On review, the 10th District Court of Appeals vacated the directed verdict and remanded the case for further proceedings in the trial court. Dr. Leimbach sought and was granted Supreme Court review of the 10th District’s ruling.
In the decision reversing the 10th District, Justice O’Donnell cited the Supreme Court of Ohio’s 1985 decision in Nickell v. Gonzalez.
Justice O’Donnell, writing for the majority, explained that the tort of lack of informed consent is a medical claim, and as such, it requires medical expert testimony. “In general, when a medical claim questions the professional skill and judgment of a physician, expert testimony is required to prove the relevant standard of conduct.”
According to the evidence in the current case, “the record reveals that the Whites relied on Leimbach’s admission and Miner’s confirmation that a second discectomy poses a greater risk of nerve damage and that the patient should have been informed of this greater risk,” O’Donnell wrote. “However, both doctors testified that they warned White of all material risks of the second discectomy. White disputed their testimony and testified that neither doctor had informed him of the greater risk he faced, and he asserted that, had he known of that risk from the second surgery, he would not have consented to that procedure.”
Dispositive of the case was the fact that White failed to produce expert medical testimony on the issue of proximate cause. Justice O’Donnell noted: “White produced no expert testimony to the effect that the second surgery proximately caused the nerve damage. Miner and Rea opined that the second surgery did not harm White. Although each acknowledged the possibility that the second discectomy could have caused the nerve damage, neither doctor testified to a reasonable degree of medical certainty that the risk of nerve damage materialized and proximately caused injury in this case.
” … Thus, because there is no evidence to support the second element of White’s informed consent claim, the trial court properly directed a verdict in this case. … Accordingly, the judgment of the appellate court is reversed, and the verdict of the trial court is reinstated.”
Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.
Justice Paul E. Pfeifer concurred with the majority’s judgment that Dr. Leimbach was entitled to a directed verdict based on White’s failure to present expert testimony establishing that the second surgery actually caused his injuries.
He disagreed, however, with the majority’s analysis “that expert testimony is necessary to establish which risks of the procedure were material.”
The case is: 2010-0988; White v. Leimbach, Slip Opinion No. 2011-Ohio-6238. Franklin App. No. 09AP-674, 2010-Ohio-1726.
Source: Ohio Supreme Court
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