Issue link: https://viewer.e-digitaledition.com/i/55875
INFORMED CONSENT: a 'New' Standard? By Timothy A. Spirko, Esq IN OHIO, THE ELEMENTS of a common law lack of informed consent case based upon a medical claim have been well established for thirty-five years dating back to the Ohio Supreme Court's decision in Nickell v. Gonzales (1985), 17 Ohio St.3d 136. In this seminal case, the Supreme Court held that the tort of lack of informed consent is established when (a) the physi- cian fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any; (b) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and (c) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to therapy. In White v. Leimbach, Slip Opinion No. 2011-Ohio-6238, the Court had an opportunity to re-examine Nickell and clarify its prior holding. After consid- eration, the Court held that "the tort of lack of informed consent is a medical claim, and therefore expert medical testimony is required to establish both the material risks and dangers inherently and potentially involved with a medical procedure and that an undisclosed risk or danger actually materialized and proximately caused injury to the patient, but it is not necessary to establish what a reasonable person in the position of a patient would have done had the material risks and dangers been disclosed prior Want a healthier practice? Call us for a check-up. For more than 30 years, physicians have called on the CPAs at Weidrick, Livesay, Mitchell & Burge to achieve their potential and remain successful. Our physician-focused business and accounting practices can help you • control your overhead • optimize your collections • minimize your personal and corporate taxes • plan for retirement • shelter and transfer wealth If you want a healthier, more viable practice, call us today. See what we can do for you. 2150 N. Cleveland-Massillon Rd, Akron 330.659.5985 (Akron) • 330.722.5249 (Medina) MARCH-APRIL 2012 n MDNEWS.COM n MD NEWS Cleveland-Akron-Canton | 41 to therapy because it is a separate issue for jury consideration." Id., at syllabus. (Emphasis added). The important factor in the Court's decision in White is that evidence related to what the material risks associated with the procedure are requires expert testimony. Only after this evidence is presented is it for the jury to apply the reasonable person standard to determine whether a patient would have decided against the therapy if the material risks were disclosed. The Court's decision leaves the issue of what risks are material in the hands of the medical community and prevents this determination from being solely a jury question. Tim Spirko is a partner with Buckingham Doolittle & Burroughs, LLP in Cleveland and a member of its Health & Medicine Practice Group. ■