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Hamilton County Registered Land litigation update

By Christopher P. FinneyNovember 25, 2015August 5, 2022

As previously reported in this blog, this firm has been honored to be selected as counsel to a group of Registered Land property owners to save that land registration system in Hamilton County, Ohio.

In the fall of 2014, the Hamilton County Commission voted 2-1 to abolish the Torrens land registration system. Hamilton County has enjoyed the highest rate of land registration in the State. Our clients then filed suit to block the abolition, in part based upon significant procedural errors on the part of the Hamilton County Commission in that abolition action.

During the pendency of that lawsuit, we successfully sought and obtained an injunction against the abolition of the system, requiring the Hamilton County Recorder to continue both “regular” land recording and the Torrens indexing.

In late October Judge Charles Kubicki dismissed the lawsuit, and then our plaintiff clients sought a “stay” of that decision — and a continuation of the Torrens land registration system pending appeal — first from Judge Kubicki and then from the 1st District Court of Appeals. Both of those motions were denied.

Thus, at present, the Hamilton County Recorder has ceased some aspects of Torrens Land Registration. We will report more fully in an update which procedures remain.

However, our appeal remains pending, and we have filed a motion with the Court of Appeals to expedite the disposition of the appeal, as the difficulty in restoring the Registered Land System may be compounded as time passes and hundreds if not thousands of documents require corrective indexing.

We’ll keep our blog readers advised as the appeal progresses.

Has Your Practice Done a HIPAA Risk Analysis Lately? Indiana Provider Pays $750,000 Settlement for HIPAA Violations.

By Finney Law FirmNovember 23, 2015

posted: Nov. 23, 2015
Hemmer DeFrank Wessels PLLC
Uncategorized

Written By: Matthew T. Cheeks

Has your practice done a HIPAA Risk Analysis lately? Indiana provider pays $750,000 settlement for HIPAA violations.

Hacking and data breach incidences are increasingly common and have become a fact of life in modern business. Regardless of the sector or industry, individuals rarely have to wait long before the next hack or breach grabs national headlines (e.g., government, banking, retail or healthcare). The constant media attention and an increased awareness of the risks of identity theft have driven healthcare consumers’ concerns about the use and security of their electronic protected health information (ePHI). This growing concern and the ease of electronically filing a Health Insurance Portability and Accountability Act (HIPAA) complaint via the U.S. Department of Health and Human Services Office for Civil Rights’ (OCR) online Complaint Portal have led to tremendous increases in the number of HIPAA complaints OCR receives. For instance, there was a 16 percent increase in the number of complaints received between 2011 (9,018) and 2012 (10,457). The number of complaints increased 24 percent in 2013 (12,974) and jumped 37 percent in 2014 when OCR received 17,779 complaints. As healthcare consumers’ interest in ePHI has grown, so too has OCR’s enforcement efforts, and OCR publicly maintains that enforcement is a high priority.

The natural result of these factors is the increased risk to healthcare providers of potentially significant liability, particularly growing out of the failure to be proactive in guarding ePHI. For example, OCR recently announced the $750,000 settlement of potential violations of HIPAA’s Security Rule and Privacy Rule against Cancer Care Group, P.C. (CCG), an Indiana-based group that includes 18 physicians.

CCG self-reported the theft of “computer server backup media” (e.g., back-up tapes) containing the unencrypted ePHI of 55,000 patients from a CCG employee’s vehicle in August 2012. OCR’s investigation revealed that “CCG failed to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI help by CCG.” OCR further found that CCG had “failed to implement policies and procedures that govern the receipt and removal of hardware and electronic media that contain [ePHI] into and out of a facility, and the movement of these items within the facility.”

While the impermissible disclosure of ePHI of 55,000 patients certainly played a role in the outcome of OCR’s investigation, it is clear that CCG’s failure proactively address the security of ePHI was a—if not the—significant factor. OCR reinforced its emphasis on the Risk Analysis and Risk Management requirements (45 C.F.R. §164.308(a)(1)(ii)(A) and (B)) in the Resolution Agreement and required CCG adopt a “robust corrective action plan” subject to OCR’s review and approval.

Despite OCR’s efforts in recent years, the U.S. Department of Health & Human Services Office of the Inspector General (OIG), Office of Evaluation and Inspections, released two reports in September 2015 (found here and here) calling on OCR to strengthen its enforcement efforts regarding general privacy standards and security breach reporting requirements. OCR agreed with the OIG’s reports, and indicated that it intends to do just that (the implementation of Phase 2 audits in 2016 will be part of these efforts).

Thus, all signs point to increasing risks for providers with respect to ePHI and the need to be proactive about the security of ePHI. The unfortunate fact, however, is that policies and procedures—or lack thereof—similar to CCG’s are probably not uncommon. Providers are too often reactionary, addressing these issues only after a breach for a variety of reasons (e.g., costs of risk analyses, costs of implementing recommended safeguards, or even a general unawareness of the need for the analyses). Old adages often hit the mark and, when dealing with ePHI, an ounce of prevention is truly worth a pound of cure.

Matthew Cheeks is a trial attorney with Hemmer DeFrank Wessels PLLC. His practice focuses on helping individuals and businesses solve complex problems through negotiation, mediation, arbitration and trial. You can reach him at [email protected].

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation. FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

LLC Members: Appreciate the Legal Formalities Associated With Your LLC to Ensure Protection From Liability

By Finney Law FirmNovember 12, 2015

posted: Nov. 12, 2015
Hemmer DeFrank Wessels PLLC
Uncategorized

Written By: Kyle M. Winslow

Limited liability companies (“LLCs”) have become a popular business entity for individuals in Kentucky. One of the main reasons that Kentucky small business owners choose the LLC is because of the protection offered by Kentucky Revised Statute 275.150 – “no member…of a limited liability company…shall be personally liable by reason of being a member…for a debt, obligation, or liability” of the LLC. Generally, LLC members can take business risks and creditors cannot seek their personal assets should their business ventures fail.

However, the LLC protection is not absolute. “Veil piercing” is an equitable remedy that allows a court to impose personal liability on shareholders for a corporation’s wrongful acts. In Turner v. Andrew, the Kentucky Supreme Court stated that the doctrine can also apply to LLCs.

In 2012, the Supreme Court of Kentucky clarified the test for veil piercing in Inter Tel Techs v. Linn Station, LLC. While Inter Tel Techs discusses veil piercing in the context of a corporation, Kentucky law does not distinguish between corporations and LLCs when analyzing the equitable remedy. In Inter Tel Techs, The Supreme Court stated that in its determination of whether to pierce the corporate veil, trial courts should essentially resolve two dispositive elements: (1) domination of the corporation resulting in a loss of corporate separateness and (2) circumstances under which continued recognition of the corporation would sanction fraud or promote injustice.

So how does the veil piercing doctrine affect small businesses? In Inter Tel Techs, the Court noted that in assessing the first element above, courts give the most emphasis to several factors, one of which is the egregious failure to observe legal formalities.

In my practice, piercing the corporate veil has come up most often where small businesses fail to follow the legal formalities associated with the business entity. This can include failure to hold meetings, failure to keep records of important decisions, and failure to monitor the activities of its members. To avoid personal liability, LLC members should make sure that they know the ins and outs of their LLC’s operating agreement and strictly comply with the agreement’s provisions.

Our team at Hemmer DeFrank Wessels is ready to answer any questions that you may have about your operating agreement or corporate bylaws, or how the legal doctrine of piercing the corporate veil may affect your business.

Kyle Winslow is an attorney with Hemmer DeFrank Wessels PLLC. He helps business professionals solve problems in Kentucky, Ohio, and Indiana.

About Finney Law Firm, LLC

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Fall 2015 Ohio legislative update

By Bradley M. GibsonNovember 4, 2015August 5, 2022

Listed below are legislative bills currently pending in the 131^st Ohio General Assembly. If you would like to view full text of each individual legislation, please click on the links below.

S.B.85 – Property-Tax Complaints

Student discipline in the smart phone age

By Bradley M. GibsonNovember 4, 2015August 5, 2022

School administrators have the unenviable responsibilities of both educating our youth and keeping them safe. As school violence continues to make national headlines administrators are increasingly wary of “off-campus student speech” – think social media postings – made by their students. How do we balance a school’s need to maintain discipline in the school-setting, with the student’s first amendment rights to free speech? Do we as a society allow schools to take a more authoritarian approach to disciplining our youth given the spate of violence, or do student’s free speech rights trump the school’s ability to discipline students for conduct that occurs away from the school yard?

The United States Supreme Court established the standard for “on-campus” speech regulation in 1969 in Tinker v. Des Moines. In that decision, the Supreme Court decided that students who wore black armbands to school in protest of the United States’ involvement in the Vietnam War did not materially or substantially interfere with the operation of the schools or collide with the rights of others. The Court issued the now oft-quoted refrain that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet, at the same time, the Court established that school administrators may restrict student speech that poses a risk of substantial disruption with the work or discipline of the school.

Following Tinker, the Supreme Court continued to refine First Amendment jurisprudence in the public school context, finding that: (1) schools can restrict vulgar and lewd speech (Bethel School District No. 403 v. Fraser); (2) schools can restrict student speech that appears to be sponsored by the school (Hazelwood School District v. Kuhlmeier); (3) schools can restrict student speech promoting illegal drug use (Morse v. Frederick).

The Supreme Court could not have imagined the development of social media and its impact on the student speech when it decided in Tinker in 1969. As social media continues to expand avenues of communication and expression for our youth, the federal district courts continue to tackle speech issues without further guidance from the Supreme Court. I first became interested in this issue six years ago in law school while researching student speech issues for a law review article. Ultimately I published an article that examined off-campus speech in the context of the second circuit’s decision in Doninger v. Niehoff. In that article, I argued that the Supreme Court’s standard for on-campus speech regulation enunciated in Tinker is workable in the context of off-campus speech. S ix years later the Supreme Court has yet to weigh in on the issue.

The Fifth Circuit Court of Appeals recently addressed the issue in the Bell v. Itawamba County School Board. In Bell, a high school student and aspiring rapper wrote and recorded a song at a studio unaffiliated with the school and posted the song on his Facebook page and on YouTube using his personal computer. The song included criticism of and “threatening language against two high school teachers/coaches” who allegedly sexually harassed female students. In response, the School board suspended Bell and transferred him to an alternative school. Bell subsequently filed suit against the school arguing that this disciplinary action violated his First Amendment right to free speech.

The District Court granted summary judgment in favor of the school, finding that the school officials acted reasonably. On appeal, a panel for the appellate court reversed, finding in favor of Bell. The school then petitioned for the case to be heard by the appellate court en banc, meaning that the entire bench (all of the judges of the court) would hear the case. Its petition was granted and the appellate court reinstated summary judgment in favor of the school. In doing so, the Fifth Circuit held that the school did not violate Bell’s First Amendment rights.

The Court examined Bell’s case in the context of Tinker and its progeny. After reviewing these cases, the Court rejected Bell’s arguments that Tinker does not apply to off-campus speech and that, even if it does, Bell’s conduct did not satisfy Tinker’s substantial disruption test. Instead, the Court held that the school acted appropriately in disciplining Bell because “a school official reasonably could find Bell’s rap recording threatened, harassed, and intimated the two teachers…and a substantial disruption reasonably could have been forecast.”

The Court reasoned that “violence forecast by a student against a teacher does reach the level of the …exceptions necessitating divergence from Tinker’s general rule” and that, due to the advent of new technology such as the internet, smartphones, and digital social media, “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.” The appellate court found that the school’s interest in being able to act quickly and intervene before speech leads to violence outweighed Bell’s interest in free speech. As a result, the Fifth Circuit determined that Tinker’s substantial disruption test applies when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimate a teacher, even when the speech originated off campus.

The Fifth Circuit’s decision illuminates the struggle our federal courts have had in developing a consistent approach to these issues, evidenced by the four dissenting opinions it elicited. One dissent criticized the majority’s recognition of the school’s right to discipline a student whistle-blower. Another dissent explained that off-campus, online student speech is a poor fit for any of the First Amendment doctrines and expressed hope that the Supreme Court will soon give the lower courts guidance on how to resolve these cases. The third dissent essentially agreed with the panel majority’s opinion and felt that the en banc majority unnecessarily expanded Tinker to apply in this case. Finally, the last dissent generally posited that Tinker did not apply to off-campus speech and that, instead, he would apply a modified Tinker standard to allow for the problems current technology poses. Under even a modified standard, though, the dissenter opined that the school’s discipline of Bell would fail.

As we see in Bell, the courts continue to wrestle with whether and how to apply Tinker and its progeny to off-campus student speech. Ever-increasing technology poses additional questions that the courts will continue to struggle with until the Supreme Court weights in on the issue.

My guess is that Supreme Court will address the question sooner the later. Whether the Tinker substantial disruption test will be adopted for off-campus speech, or some hybrid test is created, remains to be seen. In my mind, although the Tinker Court never imagined the ease of communication in the smart phone era, its test remains a viable and important tool for school administrators to curtail speech when it poses a foreseeable risk of substantial disruption to the school environment.

6th Circuit recognizes First Amendment rights of “extreme and ill-mannered evangelical group”

By Christopher P. FinneyOctober 30, 2015August 5, 2022

The 6th Circuit en banc released an opinion today that allowed an an “extreme and ill-mannered evangelical group” to march on public streets through City streets in Dearbourn, Michigan “with banners, signs, and tee-shirts that displayed messages criticizing Islam and Mohammed.” The demonstrations occurred during the annual Arab International Festival that attracts more than 300,000 persons over three days.

The group made themselves intentionally controversial, carrying around a severed pig’s head on a spike and and signs that said, “Islam is a Religion of Blood and Murder.” However, all their activities were on publicly-dedicated streets and sidewalks.

The County had argued that the speech of Bible Believers constituted “fighting words” and “incitement to violence” and thus could be banned.

The issue was whether Bible Believers had a right to engage in street preaching, and to parade around with their printed messages. The festival allowed groups to register for an assigned table, under the information tent, but not parade about the festival. The Plaintiffs, Bible Believers, preferred to move around on the public streets and sidewalks where they could be seen.

The 6th Circuit decision says “fighting words” only means words directed at an individual who is present. As to incitement, the decision says that Bible Believers did not ask anyone listening to do anything violent.

The case is Bible Believers v Wayne County, Michigan, 13-1635.

Kentucky’s Mechanic’s Lien Notice Requirements Simplified

By Finney Law FirmOctober 30, 2015

posted: Oct. 30, 2015
Hemmer DeFrank Wessels PLLC
Uncategorized

Written By: Kyle M. Winslow

The construction industry is on the rebound in Kentucky and throughout the rest of the country. In northern Kentucky, our river cities are booming with various development projects. Nevertheless, in a good or bad economy, contractors and subcontractors encounter payment problems.

Kentucky’s mechanic’s lien statutes, found in Kentucky Revised Statutes (“KRS”) 376, provide protection to construction companies who furnish materials and labor on public or private projects.

While some of the statutes’ terms are interpreted liberally, Kentucky courts have consistently held that lien claimants must strictly comply with the notice requirements of KRS 376. Due to the demands of the construction industry, contractors and subcontractors routinely miss these deadlines and forfeit the leverage and security that accompany a mechanic’s lien. The general notice requirements for private projects can be simplified into four steps:

(1) Preliminary Statement of Lien. The lien claimant should file a Preliminary Statement of Lien with the county clerk to secure priority over subsequently recorded liens. While the Preliminary Statement of Lien is not required to establish a valid mechanic’s lien, it protects the lien’s precedence. Since it’s not required, there is no deadline to file the Preliminary Statement of Lien.

(2) Notice of Intent to File Lien. Prior to filing the Lien Statement, subcontractors must notify in writing the owner of the property to be held liable or his authorized agent, of their intent to file a lien. This notification must be completed within 120 days on claims in excess of $1,000 (75 days on claims amounting to less than $1,000) after the last item of material or labor is furnished.

(3) Lien Statement. Lien claimants must file their Lien Statement with the county clerk within 6 months of the last day on which the lien claimant last furnished labor or materials. KRS 376.080(1) imposes strict requirements on the form of the Lien Statement.

(4) Notice to Property Owner. The lien claimant must send by regular mail a copy of the Lien Statement to the property owner at his last known address within seven days of filing the Lien Statement. Failure to follow this last requirement dissolves the lien.

In my practice, when a client anticipates payment problems, I immediately calendar all four steps on my personal calendar and on my firm’s litigation practice group calendar. I have forms for all four steps so when a deadline arrives, I’m prepared to take action. Should your company encounter payment problems, I’d encourage you to contact a construction lawyer familiar with the ins and outs of KRS 376. While many of the deadlines seem simple, they often involve complex factual issues.

About Finney Law Firm, LLC

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Duties Among Members in Member-Managed LLCs

By Todd McMurtryOctober 26, 2015

posted: Oct. 26, 2015
Todd McMurtry
Uncategorized

Written By: Todd V. McMurtry

Over the years I have practiced law, one of the most common complaints that I have encountered is when business partners encounter difficulty in their relationships. For example, one member may believe another has acted selfishly, diverted a valuable business opportunity or not disclosed significant expenditures. This article will focus on the duties and obligations that business partners in member-managed Kentucky Limited Liability Companies (“LLC”) have to each other and from where those obligations arise. It will help members of a member-managed LLC better understand the obligations each has to the other.

An LLC is a legal entity that among many other benefits protects its members from personal liability for the acts of the LLC. LLCs can be managed by a manager or by its members. When managed by its members, each member of the LLC has authority to bind the LLC. With the exception that it insulates its members from liability, it is similar to a partnership.

In Kentucky, a member in a member-managed LLC owes the duties required by the operating agreement and the LLC Act. Additionally, a member may still owe duties imposed by the common-law. An LLC operating agreement is an agreement among the LLC members about how an LLC will function. Generally, the members can govern themselves in any manner they wish. This includes limits on the duties that each may have to the other. But, when an operating agreement does not limit those duties, Kentucky law governs.

Kentucky Revised Statute 275.170(1) imposes on members a statutory duty of care. A member is liable to another member if his act or failure to act constitutes wanton or reckless misconduct. To limit liability to wanton or reckless misconduct is consistent with Kentucky’s business judgment rule that protects business decision makers from liability where they act in good faith, on an informed basis, and in a manner honestly believed to be in the best interest of the LLC. It is logical then that members in a member-managed LLC should always act in an honest and informed manner. To act otherwise may subject them to liability.

Members of a member-managed LLC also owe duties to the LLC. KRS 275.170(2) imposes on members a statutory duty of loyalty. This duty does not apply to the other members. Reported Kentucky cases suggest this duty applies to conduct such as diverting business from the LLC to oneself or another company that person owns or controls.

In addition to the statutory duties of care and loyalty, the common-law may also impose fiduciary duties on LLC members. The Kentucky courts have held that absent contrary provisions in an operating agreement, members owe each other a common-law fiduciary duty.

In conclusion, a member of a member-managed LLC owes the other members a duty of care. A member must act in good faith, on an informed basis and in the best interest of the LLC. As well, a member should be very familiar with the operating agreement that governs the LLC. While this seems like common sense, problems with these duties and obligations arise with great frequency.

About Finney Law Firm, LLC

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Unintentionally “Undoing” Your Estate Planning

By Isaac T. HeintzOctober 18, 2015August 5, 2022

Even with proper estate planning, clients can take actions that unintentionally “undo” their estate planning desires.

Joint Accounts

It is not uncommon for an elderly client to set up a joint account with a child or other caretaker to facilitate such party’s handling of the client’s financial affairs. In such situations, the joint account will transfer to the joint account holder without probate of the account. Frequently, a client will not consider this aspect of setting up a joint account which may result in an imbalance in the division of a client’s estate.

Life Time Gifts

From time to time, a client will make monetary gifts to a child when the child is in need. It is often the intention of the client (and the understanding of the family) that these gifts should be considered part of the child’s inheritance; however, without putting into place the appropriate paperwork, these gifts will not “legally” be considered in connection with the division of the client’s estate.

Loans

As with gifts, a client will make loans to a child when the child is in need, and it is the intention of the client (and the understanding of the family) that these loans will be paid back to the client. Unless such loans are properly documented, it is difficult to determine the amount of the loans, and/or to enforce repayment of the same. Even if the loans are documented between the client and the borrower, the documentation may be misplaced or destroyed prior to repayment. Without repayment of the loan, it could result in the loan amount remaining with the borrower and the reduction of the estate of the funds that would have otherwise been received.

Updating Beneficiaries

Life insurance policies and retirement accounts will be distributed to the named beneficiaries. If there is not a named beneficiary, then such amounts will most likely be payable to the client’s estate. Clients do not revisit the beneficiary designations on a regular basis. This can lead to the payment of these amounts to individuals designated years ago who the client no longer would want to receive such funds. For example, a client may designate a brother or sister as a primary or secondary beneficiary of a life insurance policy with the idea that the brother or sister will see that the funds are used to take care of a client’s minor children. However, the funds may not be paid until years later and the payee may not remember or appreciate the purpose for the payment.

Advancement Clauses

One way to address these types of issues is the inclusion of an advancement clause within a client’s estate planning documents. An advancement clause creates the presumption that gifts given to a person’s heir during that person’s life are intended as an advance on what that heir would inherit upon the death of the client. The concept of an advancement clause could be extended to assets received on the death of the client from a non-probate asset.

Sharing Information

Another way to help address these types of issues is by sharing information with the client’s beneficiaries and legal counsel. If the client’s beneficiaries are aware of the intention of the client by creating joint accounts and/or making gifts, loans, and/or beneficiary designations, then the client’s wishes will be known to the affected parties, which could lead to the beneficiaries working together to see that the client’s wishes are honored. A client’s sharing of information with his or her attorney can help the attorney advise the client on how to document and address such items within the client’s estate planning.

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For help with planning the disposition of your estate according to your intentions, please contact Isaac T. Heintz at 513-943-6654.

Informed Consent in Medical Malpractice Cases

By Bradley M. GibsonOctober 18, 2015August 5, 2022

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.

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