White v. Leimbach

• Decision Date: 08 December 2011
• Docket Number: No. 2010–0988.,2010–0988.
• Citation: 131 Ohio St.3d 21,959 N.E.2d 1033,2011 -Ohio- 6238
• Parties: WHITE et al., Appellees, v. LEIMBACH, Appellant.
• Court: Ohio Supreme Court

131 Ohio St.3d 21

2011 -Ohio- 6238

959 N.E.2d 1033

WHITE et al., Appellees,

v.LEIMBACH, Appellant.

No. 2010–0988.

Supreme Court of Ohio.

Submitted April 6, 2011.Decided Dec. 8, 2011.

[Ohio St.3d 21] Syllabus of the Court

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 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 to therapy because that is a separate issue for jury consideration. ( Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 17 OBR 281, 477 N.E.2d 1145, followed and explained.)

Cooper & Elliott, L.L.C., Charles H. Cooper Jr., and Rex H. Elliott, Columbus, for appellees.

Reminger Co., L.P.A., Martin T. Galvin, Brian T. Gannon, and Brian D. Sullivan, Cleveland, for appellant.

Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., Bret C. Perry, and Jennifer R. Becker, Cleveland, urging reversal on behalf of amicus curiae, the Academy of Medicine of Cleveland and Northern Ohio.O'DONNELL, J.

{¶ 1} Warren H. Leimbach II, M.D., appeals from a judgment of the Tenth District Court of Appeals, which reversed the trial court's grant of a directed verdict in his favor in an action seeking recovery for injuries following a medical procedure he performed on Robert N. White, allegedly without informed consent. At issue in this appeal is whether a claimant must present expert testimony on each element of the cause of action for failure to obtain informed consent to establish a prima facie case.

[Ohio St.3d 22] {¶ 2} The cause of action for a physician's failure to obtain informed consent is a medical claim, and a patient bears the burden to present expert medical testimony identifying the material risks and dangers of the medical procedure and showing that one or more of those undisclosed risks and dangers materialized and proximately caused injury. Expert testimony is necessary because these elements of the tort require the knowledge, training, and experience of a medical expert to assist the jury in rendering its verdict.

{¶ 3} Here, Robert and Mary White filed suit against Leimbach, alleging that he performed a second discectomy on Robert without obtaining his informed consent. The trial court directed a verdict in Leimbach's favor, finding that the Whites failed to present expert testimony concerning whether the material risks and dangers of the surgery Leimbach performed on Robert White actually materialized and proximately caused injury, but the court of appeals vacated that verdict. However, the record reveals that the trial court properly directed a verdict against the Whites. Accordingly, we reverse the judgment of the court of appeals and reinstate the verdict entered by the trial court in favor of Leimbach.

Facts and Procedural History

{¶ 4} In early 1998, Robert White developed a throbbing, aching pain that radiated from his lower back down to his knee. He consulted with Leimbach, a neurological surgeon, who diagnosed White with a herniated disc in the L5–S1 region of his back that pushed against a nerve root and innervated down the leg, causing pain. White unsuccessfully tried physical therapy to alleviate his pain, and he therefore elected to undergo a discectomy to repair the herniated disc. Leimbach told White that he had a 90 to 95 percent chance that his condition would be better after the surgery, a 4 to 5 percent chance that there would be no improvement in his condition, and a less than 1 percent chance that the surgery would make his condition worse.

{¶ 5} White obtained a second opinion from Dr. Michael E. Miner, who informed him of the risks of the procedure and recommended it.

{¶ 6} On March 10, 1998, Leimbach performed the discectomy, which eliminated White's pain, and the following June, White returned to his heavy-labor job with no limitations or restrictions.

{¶ 7} In August of that year, however, White fell while running through a hotel parking lot, reinjured his back, and began to feel the same pain he experienced prior to surgery. Although taking pain medication and applying heat provided some relief, White returned to Leimbach, who determined that White had herniated the same disc and recommended a second discectomy at the L5–S1 level.

[Ohio St.3d 23] {¶ 8} Leimbach understood that a second discectomy presented a greater risk of a bad outcome, because scar tissue from the prior surgery would make avoiding nearby nerves more difficult, and damaging the nerves could result in chronic pain. Leimbach testified that he knew of his duty to inform White of the increased risk of a poor outcome prior to obtaining consent for the second surgery, and he further testified that he discussed this risk with White.

{¶ 9} White sought a second opinion from Miner, who recommended the second discectomy and believed that White had a high probability of a good outcome because of the positive result obtained from the first surgery and because Miner did not expect that much scar tissue would have formed during the short time since the first surgery. Nonetheless, Miner testified that although the first discectomy had about a 90 percent chance of producing a good outcome, he believed that the second discectomy had only an 80 percent chance of benefiting White.

{¶ 10} Miner also testified that it is his custom to inform patients of the risks and benefits of a course of treatment, even if they consult with him only for a second opinion. Thus, he explained, he would have informed White of the potential complications of a second discectomy, including nerve damage and chronic pain.

{¶ 11} White disputed that either Leimbach or Miner had warned him that a second discectomy posed a greater risk of an adverse outcome than the first discectomy, and he testified that if he had been advised that repeating the surgery posed a significant risk not present in the first surgery, he would not have consented to the second surgery.

{¶ 12} Leimbach performed the second discectomy on October 23, 1998. His postoperative report noted that he did not discover any herniated disc material, and although he found significant scar tissue and removed it from the nerve root, he did not observe any complications from the procedure. Nonetheless, White awoke from anesthesia in pain, feeling a constant, sharp throb that radiated from the top of his hip down to his foot. Not only did the pain no longer stop at his knee, but it also felt more intense, and White described his foot as feeling “raw to the touch” and “like someone took a knife and peeled all the skin off of it.” His injury prevented him from being able to wear a sock or a regular shoe and required stronger painkillers.

{¶ 13} Leimbach wrote in his postoperative office note that “[White] indeed still has a lot of pain in the leg even after the second surgery. I was very disappointed with the second surgery because when I got in there I really found no herniated disk. Everything was flush on the floor of the canal and there is a lot of scar tissue which I had to dissect off the root and it did not surprise me he still has a lot of pain and throbbing in that leg and a lot of burning pain in the [Ohio St.3d 24] foot there. He cannot even stand to have his foot in the shoe without a great deal of discomfort. There are no bowel or bladder problems. The left leg is fine. That is what I was afraid of with the scar tissue and the second operation and we just made it worse.”

{¶ 14} On April 7, 2003, Robert and Mary White filed a complaint against Leimbach alleging that he had failed to obtain informed consent before performing the second discectomy on White. The case proceeded to trial in June 2009.

{¶ 15} Miner appeared as a fact witness and as an expert witness for Leimbach. He testified that according to the medical records, none of the material risks of a second discectomy had materialized and that he saw no indication that Leimbach had made White's pain any worse. Rather, Miner attributed White's injury to his fall in the parking lot, along with other degenerative problems in his back and the multiple treatments White had undergone. While he acknowledged that White displayed symptoms of causalgia, which included the raw, burning pain White felt in his foot following the procedure, Miner indicated that those symptoms sometimes appear when there has been no indication of trauma to the nerve, and he stated, “[I]t's hard to blame the surgeon or the knife or any reasonable cause, but it does occur.”

{¶ 16} Similarly, Dr. Gary Rea testified that in his opinion, White's fall had injured the nerve, causing White's constant pain. Rea emphasized that the second discectomy had presented White with an 80 to 85 percent chance of a good outcome, and he indicated that White's symptoms suggested that the second surgery may even have had as high a probability of benefiting White as the first surgery. Although Rea testified on cross-examination that the risks associated with a second discectomy should be explained to the patient in obtaining informed consent, he did not consider there to be a substantial risk of injuring the nerve for either the first discectomy or the second. He stated that “[t]here is some difference. But it is not like some things we do where there is a 60 percent risk. There is some increased risk, but it is a relative increase.”

{¶ 17} Rea further explained that “the pain that [White] has after the surgery, just as the pain he [had] before the surgery, is largely due to the fall and the tethered nerve root. And I think that is the source of this long term pain.” But he also admitted that any new symptoms following the second discectomy “could be” attributed to the surgery, and he...