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OH Supreme Ct: Expert Witness Needed In Informed Consent Cases
In a medical malpractice suit filed by Robert and Mary White against Dr. Warren Leimbach II, the Supreme Court of Ohio has ruled that a claim of a lack of informed consent is a medical claim, not an issue of battery, and requires expert medical testimony to establish the material risks or dangers inherent in a procedure, and that an undisclosed risk or danger became a reality and caused injury.
Robert White had back surgery. After surgery his back was worse than before and he was in more pain, a possibility he said his physician never mentioned. White also said he’d never been given or signed a consent form of any kind. The surgeon did not dispute the lack of a consent form, and couldn’t specifically recall notifying the patient of the surgery’s risks, but claimed he’d done so because that’s what he always did.
For reasons which defy explanation, White’s lawyer, Charles H. Cooper, decided not to obtain a medical expert to testify on his client’s behalf. Instead he relied on one of Dr. Leimbach’s experts who in a pre-trial deposition testified that no other factors but the surgery would have caused the increase in pain. The trial court dismissed the case, unconvinced a connection between the surgery and the plaintiffs condition could be made due to the lack of an expert for the plaintiff. White objected an appealed.
The Ohio Court of Appeals had ruled in favor of White stating that physicians who fail to provide informed consent are engaging in a form of battery, and battery cases do not require expert witnesses to provide proof.
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