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Victory in the Ohio Supreme Court

Recently, Bret C. Perry, Esq. and Jennifer R. Becker, Esq. authored an amicus brief (friend of the Court) on behalf of The Academy of Medicine of Cleveland and Northern Ohio (AMCNO), urging the Supreme Court of Ohio to reverse a decision of the Tenth District Court of Appeals in the matter of White v. Leimbach wherein the Appellate Court held that expert testimony was not required in order to maintain an action for lack of informed consent when such claims are brought in the context of a medical malpractice lawsuit. In urging reversal, Mr. Perry and Mrs. Becker argued that the decision of the Appellate Court was contrary to long-standing legal principles demanding expert medical testimony and that if left undisturbed, the decision would abrogate the guaranteed tort-reform protections afforded by way of legislative enactment.

On December 9, 2012, the Supreme Court of Ohio reversed the decision by the Tenth District Court of Appeals finding in White v. Leimbach, 2011-Ohio-6238, that the tort of lack of informed consent constitutes a medical claim and that a plaintiff must produce expert medical testimony establishing: 1) the material risks or dangers inherent in a procedure, and 2) that an undisclosed risk or danger actually materialized and proximately caused injury. The decision in White is significant in that if the decision of the Tenth District Court of Appeals was left undisturbed, plaintiffs would have been permitted to evade expert testimony requirements by framing straightforward medical malpractice claims as "lack of informed consent" claims and permitting prosecution without the benefit of an expert report. Most importantly, if left undisturbed, the Tenth District's decision would have subjected physicians to increased exposure in that claims for "battery" would arguably fall outside the tort-reform protections now afforded defendants in actions alleging medical malpractice, and malpractice insurance coverage denial.