Is Expert Testimony Required to Prove Tort Claim Asserting Lack of Informed Consent Prior to Surgery?

Robert N. White et al. v. Warren H. Leimbach, II, M.D., Case no. 2010-0988

10th District Court of Appeals (Franklin County)

ISSUE: When a patient sues a physician based on a claim that the doctor did not obtain the patient's "informed consent" to a surgical procedure because the doctor did not adequately warn the patient about the likelihood of post-surgical complications, is the plaintiff patient required to present expert witness testimony at trial to establish the alleged lack of informed consent?

BACKGROUND: Robert White of Columbus was referred to a neurosurgeon, Dr. Warren Leimbach, after experiencing low back pain that extended down one leg to the knee. White told Dr. Leimbach that he was reluctant to have spinal surgery and wanted to be treated conservatively. After physical therapy did not ameliorate his symptoms, White inquired about the probability of a successful resolution of his pain through surgery. Dr. Leimbach advised White that the disk repair operation he recommended was a fairly routine procedure that successfully resolved symptoms similar to White's in more than 90 percent of cases, and that less than 1 percent of patients undergoing the operation experienced a worsening of their symptoms or other post-operative complications.