Ohio high court: Expert witnesses required in cases alleging lack of informed consent

The court overturns a ruling that allowed some claims to proceed without such experts.

By — Posted Jan. 11, 2012

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Patients who sue doctors over lack of informed consent must obtain expert medical testimony before pursuing their claim, the Supreme Court of Ohio has ruled.

The decision, which overturns an appeals court ruling, prevents more lawsuits against physicians and strengthens tort reform protections in place in Ohio, said Bret C. Perry, an attorney for the Academy of Medicine of Cleveland & Northern Ohio. The academy submitted a friend-of-the-court brief in the case.

The high court's decision "reaffirmed the longstanding precedent that a claim for lack of informed consent constitutes a 'medical claim' requiring plaintiffs to produce competent expert medical testimony establishing what a reasonable medical practitioner would have disclosed to his patient about the risks" of a proposed treatment, Perry said in an email.

In the case, Robert White was treated by Hilliard, Ohio-based neurological surgeon Warren Leimbach II, MD, in 1998 for back pain. The doctor diagnosed White with a herniated disk and recommended a discectomy, according to court records.

White obtained a second opinion from Columbus-based neurological surgeon Michael E. Miner, MD, who also recommended the procedure, records show. Both doctors informed White of the surgery's risks and success rate, according to court documents. White had the procedure done.

Later that year, White returned to Dr. Leimbach after falling and reinjuring his back. During separate visits, Dr. Leimbach and Dr. Miner recommended a second discectomy, which White underwent.

In 2003, White and his wife sued Dr. Leimbach, claiming that the second surgery made his pain worse. White said Dr. Leimbach and Dr. Miner failed to warn him that a second discectomy posed a greater risk of an adverse outcome. Had he been advised of the risks, White said he would not have agreed to the second discectomy.

Dr. Leimbach testified that he knew of his duty to warn White and that he discussed the second discecotomy's risks with White. Dr. Miner testified that he informed White of the potential complications of a second discectomy, including nerve damage and chronic pain.

A trial court in 2009 ruled in favor of Dr. Leimbach, concluding that the Whites failed to show an undisclosed risk or danger materialized and caused White's injury. The Whites appealed.

The 10th District Court of Appeals for the State of Ohio in 2010 vacated the trial court's judgment. The appellate court said a claim for lack of informed consent is not a medical claim, but rather a common law claim based on battery. Furthermore, the court ruled that expert testimony was not necessary to establish a claim for lack of informed consent. Dr. Leimbach appealed.

In its Dec. 8, 2011, opinion, the Supreme Court of Ohio sided with the doctor, throwing out the case.

"The cause of action for a physician's failure to obtain informed consent is a medical claim, and a patient bears the burden to present expert medical testimony identifying the material risks and dangers of the medical procedure and showing that one or more of those undisclosed risks and dangers materialized and proximately caused injury," the court said. "Expert testimony is necessary because these elements of the tort require the knowledge, training and experience of a medical expert to assist the jury in rendering its verdict."

At this article's deadline, an attorney for White had not returned messages seeking comment.

Ruling a victory for doctors

Had the appeals court ruling been allowed to stand, it would have created a significant loophole for plaintiffs suing doctors, said Martin T. Galvin, Dr. Leimbach's attorney. More litigants would have included a claim for lack of informed consent, aware that if their medical negligence claim was dismissed they could still pursue their case without expert testimony, he said.

"It would have made it harder to dispose of lawsuits in the early stage. More lawsuits would have been filed, and they would have lasted longer," he said.

The appeals court ruling was in direct conflict with Ohio law, and it would have had a resounding and negative impact on physician-defendants if left undisturbed, the Academy of Medicine of Cleveland & Northern Ohio said in its brief.

Expert testimony must be presented to establish the standard of care, breach and proximate cause, according to Ohio law. The state has a $250,000 noneconomic damages cap for most medical liability claims or three times that of economic damages. The cap increases to $1 million for some injuries and does not apply to wrongful death claims.

The high court's decision protects doctors and allows for a more fair legal arena, Perry said.

"The decision of the Ohio Supreme Court in White is significant in that it closed the judicially created loophole permitting claims for lack of informed consent in the absence of expert medical testimony," he said.

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Case at a glance

Are "lack of consent cases" liability cases, and is expert testimony required to pursue these claims?

The Supreme Court of Ohio says yes. The high court ruled that lack of informed consent lawsuits are medical claims. The court said a patient bears the burden of presenting expert medical testimony identifying the material risks and dangers of the medical procedure and showing that one or more of those undisclosed risks and dangers materialized and proximately caused injury.

Impact: The ruling will prevent a rise in lack of informed consent claims against doctors and reaffirm tort reform protections in place in the state, experts said.

Robert White v. Warren Leimbach II, MD, Supreme Court of Ohio, Dec. 8, 2011 (link)

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