Nickell v. Gonzalez

• Decision Date: 22 May 1985
• Docket Number: No. 84-650,84-650
• Citation: 477 N.E.2d 1145,17 OBR 281,17 Ohio St.3d 136
• Parties: , 17 O.B.R. 281 NICKELL et al., Appellant, v. GONZALEZ, Appellee.
• Court: Ohio Supreme Court

Page 136

17 Ohio St.3d 136

477 N.E.2d 1145, 17 O.B.R. 281

NICKELL et al., Appellant, v. GONZALEZ, Appellee.

No. 84-650.

Supreme Court of Ohio.

May 22, 1985.

Syllabus by the Court

The tort of lack of informed consent is established when:

(a) The physician 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 the therapy.

On March 23, 1970, defendant-appellee, Dr. Luis L. Gonzalez, performed a thoracic outlet syndrome operation. Subsequently the patient, Donna H. Nickell, a plaintiff-appellant herein, experienced a condition known as brachial plexus palsy--the paralysis of the network of nerves situated principally in the neck and in the armpit and which extends to the entire arm.

In the ensuing action the basis for recovery averred by the plaintiffs was that Dr. Gonzalez did not adequately disclose to Mrs. Nickell the risks of the procedure she was to undergo. The cause proceeded to trial whereupon Dr. Gonzalez testified concerning the risks that were disclosed to Mrs. Nickell prior to her operation. Evidence was also given by Mrs. Nickell and plaintiffs' expert witness who had treated the brachial plexus palsy, Dr. Harold E. Kleinert.

The jury returned a verdict in favor of Dr. Gonzalez. On Motion the trial judge granted a judgment notwithstanding the verdict, pursuant to Civ.R. 50(B), in favor of the plaintiffs. Additionally, the trial court judge ordered a new trial solely on the issue of damages. After the new trial, the jury awarded zero damages to the plaintiffs, prompting their appeal.

The court of appeals reviewed the record and determined that the judgment notwithstanding the verdict, and therefore the new trial ordered on the issue of damages, was erroneous and accordingly reinstated the jury verdict in favor of defendant. The cause is now before the court pursuant to the allowance of a motion to certify the record.

Marlene P. Manes, Columbus, and Gary L. Gardner, for appellants.

Rendigs, Fry, Kiely & Dennis, John W. Hurst and D. Marc Routt, Cincinnati, for appellee.

LOCHER, Justice.

The issue before us is whether the judgment notwithstanding the verdict ("j.n.o.v.") was properly granted by the trial court judge in favor of the plaintiffs. For the reasons set forth below we find that the j.n.o.v. was erroneously granted and affirm the decision of the court of appeals.

The standard for granting a motion for j.n.o.v. is the same as that necessary to sustain a motion for a directed verdict. Agers v. Woodard (1957), 166 Ohio St. 138, 140 N.E.2d 401 [1 O.). 2d 377], at paragraph one of the syllabus. As we set forth in Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (74 O.O.2d 427]:

" * * * The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions."

At trial, Dr. Gonzalez categorically denied responsibility for the injury and that he misinformed or failed to disclose material information to Mrs. Nichell. On cross-examination, Dr. Gonzalez stated:

"Well, there are just three [complications] that we usually discuss with patients undergoing this type of operation. And these are, No. 1, * --- working close to the lung. At some time in the operation, one is only two millimeters or so away from the lung. If one in the process of this operation removes a rib, there can be a little opening into the chest. This is called pneumothorax. The lung will collapse slightly. This is recognized easily by any trained surgeon and treated easily. The results are good. There is nothing serious about this.

"No. 2, there are blood vessels, which I've already spoken of. There are branches of these blood vessels. One can get in some bleeding in this area. The area is filled with blood vessels, so bleeding is a second complication. Again, a trained surgeon who is going this kind of surgery all the time is not bothered very much by this. We can handle this and we expect it.

"The third complication is, again, structures that are in the area. They are the lower cords of the brachial plexus. There is a nerve that goes to the arm, and intercostobrachial nerve that sometimes, in the course of the operation, one has to retract, one has to work around. And in the low, low percentage of cases, one may get a temporary nerve palsy, a palsy being a weakness of the nerve. There are considered temporary in most instances." (Emphasis added.)

The record is thus specific as to what was disclosed to Mrs. Nickell in warning her of the normal dangers of the operation. The problem of a permanent brachial nerve palsy, which was suffered by Mrs. Nickell, was unrebutted as being an extraordinarily unusual occurrence; even a temporary palsy was considered rare. The stretch of the brachial plexus which Dr. Gonzalez alluded to with respect to the retraction of the...