On December 8, 2011 the Supreme Court of Ohio issued an opinion laying out when expert testimony is needed in a medical claim based on lack of informed consent. The case is White v. Leimbach, 2011-Ohio-6238.
Dr. Warren Leimbach, a neurosurgeon, successfully operated on Robert White for acute back pain caused by a herniated disc. Several months later, White fell and re-injured his back. After consulting Leimbach again, and getting a second opinion a second time from Dr. Michael Miner, White agreed to have Dr. Leimbach perform a second discectomy surgery. The second surgery left White in acute, ongoing pain.
White and his wife filed suit against Leimbach alleging he had failed to get White’s informed consent before performing the second discectomy. White claimed that Dr. Leimbach failed to inform him that a second surgery posed a greater risk of a bad outcome, and had he known that he would not have consented to the second surgery.
At trial, it was established that risks of the second procedure were nerve damage and chronic pain. Dr. Miner testified both as a fact witness and as an expert witness for Dr. Leimbach. He testified that based on his review of the medical records nerve damage—one of the risks of the procedure—had not materialized, and that he saw no evidence that the surgery had worsened White’s pain. The trial court granted a directed verdict in favor of Dr. Leimbach, finding there was no proof of the second element—that the undisclosed risks actually materialized and caused injury. The Tenth District Court of Appeals reversed.
Lack of informed consent is a quirky little tort. In Ohio, it is a medical claim, with all that entails. It was once a battery—an intentional tort involving unagreed to bodily contact. But over time, it came to be part of the satellite of medical claims, and is generally now recognized as a negligence action.
The Supreme Court of Ohio set forth the elements of the common law tort of lack of informed consent in 1985 in Nickell v. Gonzales, (1985), 17 Ohio St.3d 136, 477 N.E.2d 1145. Those elements are
(a) The physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any;
(b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and
(c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy.
In the White case the Court further explained Nickell. What hadn’t been clear in Nickell is when the plaintiff needed expert testimony to prove his or her claim. In the 7-0 decision (Justice Pfeifer concurred in judgment only, which I’ll discuss further) written by Justice O’Donnell, the Court held that there are two parts to the first Nickell element: the material risks and dangers and the significance of those risks and dangers, and that expert medical testimony is required to establish both aspects of that first element. Expert testimony is also required to establish the second element, namely, that the undisclosed risks actually materialized and harmed the patient. But the Court held that expert testimony was not required to establish the third element–what a reasonable person in the patient’s position would have done had that information been given to the patient.
All the justices on the court agreed that there was a failure of proof on the required second element–that the undisclosed risks actually materialized–and reinstated the trial court’s directed verdict in favor of Dr. Leimbach.
Justice Pfeifer wrote an interesting separate concurrence, disagreeing with the other justices on the need for expert testimony on the first element—failure to disclose the material risks of the surgery. He agrees that the first element has two aspects to it–the need to establish the risks of the procedure and then whether that risk was material to the patient’s decision. He would require expert testimony on the first prong, but not the second. He thinks juries, unaided by expert testimony, are able to determine whether the undisclosed information was material to the patient’s decision.
In 1994, when I was on the First District Court of Appeals, I came to pretty much the same conclusion in Valerius v. Freeman et al., (Oct. 19, 1994), Hamilton App. No. C-930658, unreported, 1994 WL 570289 as Justice Pfeifer in the White case.
There is one important holding in White that was barely discussed at all. It has been an open question whether a patient bringing an informed consent claim needs expert testimony on the third and final element of the claim- whether a reasonable person in the position of the patient would have decided against the therapy had the material risks been disclosed to the patient before the treatment. All seven justices agreed that expert testimony is not required for this element. That should help plaintiffs in these kinds of cases. And incidentally, that is an objective, not a subjective test—would a reasonable person in the patient’s position—not that particular patient—have declined the treatment given the undisclosed risks.
The tort of lack of informed consent is a medical claim, and therefore expert medical testimony is required to establish both the material risks and dangers inherently and potentially involved with a medical procedure and that an undisclosed risk or danger actually materialized and proximately caused injury to the patient, but is not necessary to establish what a reasonable person in the position of a patient would have done had the material risks and dangers been disclosed prior to therapy because that is a separate issue for jury consideration. ( Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 17 OBR 281, 477 N.E.2d 1145, followed and explained.)