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"What we have here is a failure to communicate"

The blog, news and resources of Bieser Greer

April 04, 2017

"What we have here is a failure to communicate"


This blog’s title is from the 1967 movie, Cool Hand Luke,in which the late Paul Newman was cast as the wisecracking hero, Luke. In the movie, Luke gets drunk and foolishly knocks the head off of a parking meter in a small rural southern town. As a result, he is arrested, found guilty, and is given a harsh and lengthy sentence which results in him becoming an inmate at a local prison farm. While there, he labors on a chain gang and he encounters a particularly unpleasant and chippy warden who utters our title words each time before he goes on to inflict some extraordinarily  unpleasant, extreme, and excessive punishment on Luke who has a very hard time following all of  the Warden’s rules and regulations.

Communication, of course, is important in all aspects of our lives, not just when you are a prisoner on a chain gang answering to a sadistic warden. It is particularly important between physicians and their patients. Because many medical and surgical treatments involve elements of danger and pose a real risk of harm, the law requires physicians to provide all patients with “informed consent” before treatment is commenced. If informed consent is not obtained when required, the physician can be charged with a “battery”.

In a case known as Nichols V Gonzalez, 17 Ohio St. 3rd 136 (1985), the Ohio Supreme Court explained what a physician’s duties are when communicating dangers and risks associated with medical treatment. In general, a physician must disclose to the patient the dangers and risks that a reasonably careful physician would explain to any patient under the same or similar circumstances. However, in Ohio, in addition to explaining what a reasonably careful physician would explain, the physician must also share with the patient “all risks material to an informed decision about treatment”. What qualifies as a “material risk”, not surprisingly, varies from case to case as the facts change, and is often the subject of heated debate and controversy in medical malpractice trials.

If a physician is sued for failure to provide informed consent, the patient must prove by a greater weight of the evidence (what the law calls a “preponderance”) that the physician failed to disclose and discuss with the patient the material risks and dangers inherently and potentially involved with respect to the proposed medical treatment.

In addition, the patient must show that the risk and dangers that should have been disclosed by the doctor actually happened and, also, were a direct or proximate cause of injury or damage to the patient. Finally, the patient must also demonstrate that a reasonable person in the patient’s position would have decided against the medical treatment in question, if the material risks and dangers that were part of and incidental to the medical procedure had been disclosed to the patient before treatment.

In trials involving where physicians have been sued for lack of informed consent, juries in Ohio are routinely instructed by the trial judge that “every adult has the right to decide what should be done with his/her body and is entitled to be informed about the material risks in medical treatment recommended by a physician or surgeon”. In addition,  judges in Ohio also tell juries that a “material risk” is a risk that a reasonable person, while in the condition that the physician knew or should have known the patient was in, would be likely to consider important in deciding whether or not to refuse the treatment in question. See, Ohio Jury Instructions

Because of the requirement that the doctor inform the patient of the material risks that a reasonably careful physician would explain, expert testimony from a licensed physician (who meets the requirements for expert testimony under Ohio law) is also required. Expert testimony from a medical witness “is necessary to establish the nature and the probabilities and the magnitude of risks inherently and potentially involved with respect to a proposed treatment as well as the nature of available alternatives, because these matters are beyond the knowledge of a layperson.” See Ware v. Richey, 14 Ohio App3d 3 (8th Dist. 1983) and the Comments to Ohio Jury Instructions 1-cv 417 OJI 417.07.

Since the doctors duty is to explain “material” risks, not every conceivable risk or danger, no matter how small, must be disclosed. Material risks, “will normally include the hazards naturally arising from the proposed treatment, the benefits to be expected, the alternatives, and the results likely for the patient if the patient remains untreated”. See, 1-CV 417 0JI CV 417.07 (4). At a trial involving lack of informed consent, it is the jury who will decide, after considering all of the evidence, whether a risk or danger was “material”.

Of course, communication is a two-way street. A physician cannot be accused of failing to disclose a risk of a treatment procedure where the patient failed to inform the doctor of facts or circumstances which make an otherwise nonmaterial risk into a very important one given the patient’s health history or medical condition.

As Luke found out in Cool Hand Luke, afailure to communicate can bring devastating consequences. The same can be true for both physicians and patients if there is a failure to communicate and obtain informed consent.

* This is an advertisement. The information provided here is for informational purposes only and should not be considered legal advice. You should consult an attorney for legal advice regarding your particular situation.