AMCNO Scores a Victory in Ohio Supreme Court Decision |
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The Academy of Medicine of Cleveland and Northern Ohio (AMCNO) was pleased to
learn that the Supreme Court of Ohio reversed a decision by the Tenth District
Court of Appeals which had held that expert testimony was not required in order
to maintain an action for lack of informed consent when such claims are brought
in the context of a medical malpractice lawsuit. The AMCNO had submitted an
amicus brief (friend of the Court) urging that the Supreme Court of Ohio reverse
the decision of the Tenth District Court of Appeals. In White v. Leimbach,
2011-Ohio-6238, the Supreme Court of Ohio confirmed that the tort of lack of
informed consent constitutes a medical claim and that a plaintiff must produce
expert medical testimony establishing: 1) the material risks or dangers inherent
in a procedure, and 2) that an undisclosed risk or danger actually materialized
and proximately caused injury.
This case arose from a medical malpractice suit filed by Robert and Mary White against Dr. Warren Leimbach II. The complaint alleged that Dr. Leimbach performed a second discectomy back surgery on Mr. White without adequately disclosing that there was a higher risk of negative results from a follow-up discectomy than from his first operation, and therefore, failed to obtain Mr. White’s informed consent before performing the second surgery. The trial court directed a verdict in Dr. Leimbach’s favor, finding that the Whites failed to present expert testimony concerning whether the material risks and dangers of the second surgery actually materialized and proximately caused injury. On review, the Tenth District Court of Appeals vacated the directed verdict and remanded the case for further proceedings in the trial court. The amicus brief filed on behalf of the Academy of Medicine of Cleveland & Northern Ohio urged reversal of a decision of the Tenth District Court of Appeals and sought a declaration that claims alleging lack of “informed consent” constituted “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. In urging reversal, the AMCNO sought to ensure that physicians and medical providers throughout Ohio are guaranteed the tort-reform protections afforded by way of legislative enactment. The decision in White v. Leimbach is significant in that if the decision of the Tenth District Court of Appeals was left undisturbed, plaintiffs would have been permitted to evade expert testimony requirements by framing straightforward medical malpractice claims as 'lack of informed consent' claims and permitting prosecution without the benefit of an expert report. Most importantly, if left undisturbed, the Tenth District’s decision would have subjected physicians to increased exposure in that claims for “battery” would arguably fall outside the tort-reform protections now afforded defendants in actions alleging medical malpractice, and malpractice insurance coverage denial. To view the slip opinion go to: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-6238.pdf |
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