Comments

Merit Decision: The Necessity of Expert Testimony in an Informed Consent Claim. White v. Leimbach. — 4 Comments

  1. Judge Bettman’s anyalysis of White v. Leimbach is on point. However there is one other matter that needs to be addressed. Ohio has an “Informed consent” statute, ORC 2317.54. If a patient signs a written consent form, and it meets the three requirements of the statute, then the consent is presumed valid and effective so as to bar any claims based on the theory of informed consent. I just tried a case here in Cincinnati on the basis of informed consent. A women, age 19 at the time, became pregnant with her first child. Mom is a pregestational diabetic and these women tend to have larger babys. Third trimester ultrasounds suggested this was a very large baby, probably exceeding 10 pounds. The standard is that if the baby may be over 10 pounds, then mom should be advised of the risks and benefits of C-section v. vaginal delivery. Mom was never given the option, and during birth, the baby became “stuck” (shoulder dystocia), causing a tearing of the 3rd and 4th cervical nerve roots, also known as a brachial plexus injury, leaving the child with permenant dysfunction of his right arm. The defense raised the informed consent statute as a bar. The trial judge struggled to reconcile the statute with the common law (Nickell), and finally instructed the jury on both theories. We argued the written consent form did not meet the requirements of the statute in that it was signed by mom before there was any concern about a macrosomic infant, and further, none of the risks of shoulder dystocia were on the form. We did present expert testimony as to the first two elements of Nickell. When we focused on the third element of Nickell, the trial judge was NOT even going to allow the plaintiff to testify as to what she would have done had she been given the option of C-section in that the standard is what a reasonable person would have done. I showed the trial judge the Nickell decision wherein the Supreme Court stated that the testimony of the plaintiff, while relevent, was not the standard, and then the judge allowed me to question plaintiff as to what she would have done had she been so advised. The jury found that indeed the written consent form did not comply with the statute, and further held that the defendant physician had not provided informed consent, and returned with a verdict in favor of our client for $1.14m. The case is now over.

  2. It seems to me what Justice Pfeiffer was saying is that the first element is not that much different from the third: if a person can testify as to what he or she would have decided to encounter in terms of risk given the potential magnitude of the risk and gravity of the harm, and that is also an objective test, viz., what others – including the jurors – would find on that issue, then what is a “material” risk that must be disclosed is also within the purview of the patient/plaintiff, as well as the lay jurors. What the majority seems to be saying is that an expert must disclose the details: what are the known risks and complications, what is the relative incidence of such complications, and what are the medical ramifications of such. Without that information, the jury cannot deem the patient was, in fact, even denied a necessary opportunity to make an informed decision about what transpired. I tend to agree with both points of view, and do not really see this as an earth shattering decision; I cannot imagine trying such a claim without having had an expert establish those things as a matter of both law and persuasion.