Informed Consent in Ohio: What You Must Prove When a Doctor Didn't Warn You

Published December 16, 2011 · Ohio Supreme Court

Before any surgery, someone hands you a form. It lists risks, you sign it, and the procedure goes forward. But sometimes the risk that matters most, the one that would have changed your mind, was never on the form and never mentioned in the exam room. Then that risk comes true.

Ohio law has recognized a claim for that situation since the 1980s. It is called lack of informed consent. Last week the Supreme Court of Ohio, in White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, decided December 8, 2011, explained in detail what a patient must prove and, critically, what kind of evidence is required for each part. The patient in that case lost. The roadmap the court laid out is nonetheless the most useful thing a prospective plaintiff can read before deciding whether to pursue such a claim.

The case

Robert White had a herniated disc at the base of his spine. In March 1998 Dr. Warren Leimbach, a neurosurgeon, performed a discectomy that relieved his pain completely. Five months later Mr. White fell while running through a hotel parking lot and the pain returned. Dr. Leimbach found the same disc had herniated again and recommended a second discectomy.

A second operation at the same level is riskier than the first, because scar tissue from the first surgery makes it harder to avoid the nearby nerves, and nerve damage can cause chronic pain. Dr. Leimbach testified that he knew this and discussed it with Mr. White. Mr. White testified that neither Dr. Leimbach nor the surgeon who gave him a second opinion told him the second surgery carried a greater risk than the first, and that if he had known, he would not have gone through with it.

He went through with it on October 23, 1998, and woke up with pain that was worse than before, now radiating all the way to a foot he described as feeling raw. The surgeon's own office note said, in substance, that the operation had made things worse.

The Whites sued in April 2003. At trial in 2009, the judge directed a verdict for the surgeon. The Tenth District reversed. The Supreme Court reversed again and reinstated the directed verdict.

The three elements

The court reaffirmed the test it set out in 1985 in Nickell v. Gonzalez. A patient proves lack of informed consent by showing:

1. the physician failed to disclose and discuss the material risks and dangers of the proposed treatment;
2. those undisclosed risks actually materialized and proximately caused the patient's injury; and
3. a reasonable person in the patient's position would have declined the treatment had the risks been disclosed.

A risk is "material" when a reasonable person in the patient's condition would be likely to attach significance to it in deciding whether to go forward.

The holding: where experts are required and where they are not

White answered the question Nickell left open: which of those elements require a medical expert?

Element one, the risks, requires an expert. Only a qualified physician can tell a jury what the risks of a given procedure are and how likely they are. Once the expert has established what the risks were, the jury decides whether they were material enough that they should have been disclosed.

Element two, causation, requires an expert. The patient must present medical testimony that the undisclosed risk actually came to pass and caused the injury. That testimony must be framed in terms of probability, meaning more likely than not, not possibility. The court was explicit that this is because the question is beyond a layperson's knowledge: whether a bad outcome came from the surgery, from the underlying disease, from a prior injury, or from aging is a medical question.

Element three, what a reasonable patient would have done, does not require an expert. Whether a reasonable person would have refused the surgery is something jurors can decide from their own experience.

Justice Pfeifer concurred in the judgment only, but the practical takeaway is the same: in Ohio, a lack-of-informed-consent claim lives or dies on expert medical testimony.

Why the patient lost

Mr. White's case failed on the second element. His own evidence of causation consisted of the surgeon's post-operative note that the surgery "made it worse" and testimony from a defense expert who agreed, on cross-examination, that the surgery was the "most likely cause" of the new pain, while also testifying that the operation had not harmed him. The court held that neither amounted to an opinion, to a reasonable degree of medical probability, that the undisclosed risk of nerve damage had materialized and caused the injury. Being the most likely among several possible causes, the court said, is not the same as being more likely than not the cause.

In plain terms: the Whites did not have their own expert say the words the law requires.

What this means for building a case

If you believe a doctor performed a procedure without warning you of a risk that then injured you, here is what the decision tells us a lawyer must assemble:

• A qualified expert in the same specialty, retained early. The expert must be prepared to testify to the risks of the procedure, that the specific undisclosed risk occurred, and that it more probably than not caused your injury. Each of those is a separate opinion, and the words matter.
• Complete records, including the consent form and the surgeon's notes. What the form listed, and what it omitted, is the starting point, along with your own recollection of what you were told.
• Attention to alternative causes. The defense will argue your injury came from the underlying condition, a prior injury, or the natural course of the disease. Your expert must address those directly.
• The deadline. A lack-of-informed-consent claim is a "medical claim" under R.C. 2305.113. That statute generally requires suit within one year of when the claim accrues, with a mechanism to extend that period by written notice, and it bars most medical claims entirely after four years from the act or omission. Those are short windows for a case that requires expert review before it can responsibly be filed.

A hard year for medical claims, and some good news

The news on medical claims this year has not all been bad. In April the Supreme Court held that a delayed cancer diagnosis is a real injury supporting emotional-distress damages. In January it opened discovery into an infected surgeon's records. In October the Dayton appeals court kept Miami Valley Hospital in a case over an MRI burn. And juries do award full value when the proof is there, as in the surgical-injury verdict we discussed last year.

The common thread is preparation. Medical claims are won by lawyers who retain the right expert before filing, not after.

What this means for you

If a procedure went wrong in a way no one warned you about, you may have a claim, but it will not succeed on your word and the doctor's chart alone. It requires a physician willing to say, under oath and in the language the law requires, that the risk was real, that it happened to you, and that it caused your injury. Finding that physician takes time, and the clock on a medical claim is short. Do not wait to find out whether the case can be proven.