October 18, 2015
One issue that often arises in medical malpractice cases is whether the doctor properly informed the patient about a surgical procedure and its attendant risks. Ohio law imposes a duty upon doctors to obtain “informed consent” from their patients prior to conducting a medical procedure. But, what exactly qualifies as informed consent? How must that consent be obtained? Does it matter if the surgery is “routine,” “experimental,” or somewhere in between? The Twelfth District Court of Appeals recently considered these questions in the case of Shell v. Durrani.
After 30 years of suffering from chronic back pain, the plaintiff in this case consulted Dr. Durrani who performed a surgery on her in 2007. A year later, the plaintiff again experienced back pain. Dr. Durrani informed her that the screws he had inserted in her spine had loosened and that a second surgery was required. The day before the surgery, the plaintiff signed two separate written consent forms. After the surgery, the plaintiff suffered complications that required two additional surgeries performed by Dr. Durrani. Following these surgeries, the plaintiff suffered from bowel and bladder control issues, nerve damage, pain in her legs and feet, and required a leg brace.
The plaintiff sued Dr. Durrani alleging that he failed to obtain her informed consent before the surgery. The jury ruled in favor of Dr. Durrani. The plaintiff appealed the decision, arguing that the she was entitled to a judgment notwithstanding the verdict because she was not provided with informed consent in accordance with Revised Code 2317.54. This statute provides that a medical consent form should set forth the general terms of the procedure along with what it is expected to accomplish, together with the reasonably known risks and the name of the doctor performing the surgery. It further calls for the consent form to include an acknowledgement that the disclosure of this information has been made to the patient, and should be signed by the patient.
The plaintiff essentially argued that one of the consent forms she executed violated the statute because it did not identify Dr. Durrani as the operating physician, nor did it describe the procedure to be performed. The appellate court was unpersuaded. First, the court noted that a physician is not required to provide a consent form that meets the requirements of R.C. 2317.54. Instead, when a written consent form is executed that meets the statutory requirements, it simply creates a presumption that valid and effective consent was obtained. Failure to comply with the statute does not in and of itself create a lack of informed consent claim. The facts of a case may even demonstrate that informed consent was obtained orally.
As to our questions raised at the beginning of this article, the appellate court stated that a lack of informed consent is established when three factors are met: (1) 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; (2) 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 (3) 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. These are the factors that must be analyzed whether the consent was allegedly obtained in writing, or orally.
In Shell, the court determined that the second consent form the patient signed did, in fact, comply with the requirements of R.C. 2317.54 for a presumptively valid informed consent. The court noted that Dr. Duranni had additionally discussed the procedures with the plaintiff orally. As a result, the appellate court upheld the trial court’s dismissal.
Informed consent is just one of the issues to consider for a client who has suffered complications from a medical procedure. Medical malpractice claims may turn on a variety of other facts in any particular case. We frequently meet with potential clients in this unfortunate situation, and understand that their health is an invaluable asset. We evaluate all aspects of their cases in order to protect their future. Please do not hesitate to contact us if you would like our litigation team to review a potential medical malpractice claim.