AMCNO Files Brief to Protect Tort Reform Provisions
The AMCNO board of directors approved the filing of an amicus brief in the White v. Leimbach case out of the 10th District since this case has the potential to impact tort reform protections. In White v. Leimbach, 10th Dist. No. 09AP-674, 2010-Ohio-1726, the Tenth District Court of Appeals undermined long-standing Ohio law finding that a claim for lack of “informed consent” constituted a common-law claim for battery. In doing so, the Tenth District effectively established that physicians in Ohio could now be sued for battery in failing to provide adequate informed consent. This decision, if left undisturbed, will undoubtedly result in an increase in the number of lawsuits filed against physicians which otherwise would lack the necessary and essential prerequisite requirement of expert medical review.

Prior to this decision, claims for lack of “informed consent” were considered “medical claims” requiring prerequisite expert medical testimony. Likewise, these claims were subject to the tort-reform protections such as monetary caps on non-economic damages. The Tenth District’s decision provides plaintiffs a vehicle in which to circumvent the required expert medical testimony burden. In addition, this decision could potentially subject physicians to increased exposure in that claims for “battery” arguably fall outside the tort-reform protections now afforded defendants in actions alleging medical malpractice.

The amicus brief filed on behalf of the Academy of Medicine of Cleveland & Northern Ohio seeks to overturn this decision and declare that claims alleging lack of “informed consent” constitute “medical claims” requiring plaintiffs to produce competent expert medical testimony establishing what a reasonable medical practitioner would have disclosed to his patient about the risks incident to a proposed treatment in order to establish a prima facie claim. Likewise, in urging reversal of the decision of the Tenth District, the Academy seeks to ensure that physicians and medical providers throughout Ohio are guaranteed the tort-reform protections afforded by way of legislative enactment.