Healthcare often requires making choices. For example, you may find yourself having to decide whether to undergo surgery or take a particular medication to treat your condition. Your doctor or other healthcare provider must first warn you, however, of any potential risks or side effects of accepting a given treatment. After all, we trust in their expertise to keep us safe, especially when it comes to medications and procedures that we cannot be expected to have independent knowledge of beforehand.
Unfortunately, there are cases where doctors and healthcare providers fail to provide adequate warnings to their patients. If a patient fails to give informed consent, and is subsequently injured when an undisclosed risk leads to a complication, that can constitute medical malpractice under Ohio law.
The attorneys at Tittle & Perlmuter are dedicated Cleveland failure to warn lawyers who can review your case and advise you on seeking compensation from a negligent healthcare provider. We understand that doctors make mistakes, but there is never any excuse for failing to warn a patient beforehand about the potentially life-altering–if not fatal–risks of undergoing a serious medical procedure.
What Is a Failure to Warn Claim?
“Failure to warn” is actually a term commonly used in Ohio product liability law. The manufacturer of a consumer product has a duty under state law to provide adequate warnings of any known risk or hazard of using their product. While this duty does not apply to “open and obvious” risks, it does cover any reasonably foreseeable risk that is outside the common knowledge of the consumer.
Along similar lines, failure to warn in the context of Ohio medical malpractice refers to a physician or other healthcare provider’s duty to obtain “informed consent” from their patient prior to undergoing a medical procedure. Ohio courts have long defined a lack of informed consent–i.e., a failure to warn–under the common law to mean the following:
- The physician failed to disclose to the patient and discuss any material risks and dangers inherent to the proposed therapy;
- An unrevealed risk that should have been disclosed by the physician actually materialized and was the proximate cause of some injury to the patient; and
- A reasonable person in the patient’s position would have decided against the therapy had the physician disclosed the inherent risks and dangers beforehand.
In recent years, the Ohio legislature has adopted certain statutory requirements for informed consent. Under the statute, informed consent is presumed when the patient signs a written consent prior to any surgical or medical procedure, provided the following conditions are met:
- The consent sets forth in general terms the nature and purpose of the procedure, including what the procedure is intended to accomplish, as well as the reasonably known risks.
- Except in emergency situations, the consent must state the names of the physicians who will perform any surgical procedures.
- The patient acknowledges that any questions they asked regarding the procedure were answered to their satisfaction.
- If the patient is unable to sign the consent for any reason, a person who has legal authority to consent for the patient must sign on their behalf.
Even with a signed informed consent, however, a physician or healthcare provider may still be liable for a failure to warn if there is evidence that the consent was obtained by fraud or misrepresentation. For example, if a physician deliberately neglects to mention a known risk of a procedure, the patient’s informed consent is effectively worthless. At the same time, the statute places the burden on the patient to prove that a signed informed consent is not valid.
What Can a Cleveland Failure to Warn Lawyer Do for You?
Informed consent is often less about protecting patients and more about insulating doctors and hospitals from potential medical malpractice lawsuits. The reality is that many patients who receive surgical and other medical treatment do not receive adequate warnings before agreeing to risky procedures. When a patient is injured as a result of not just the doctor’s negligence in performing the procedure, but also failing to warn of the known risk, that patient has the right under Ohio law to seek financial compensation through a medical malpractice lawsuit.
At Tittle & Perlmuter, our Cleveland failure to warn lawyers can review your case and identify potential defects in any informed consent you gave to a procedure. Some common grounds for challenging a written informed consent include:
- The patient’s (or doctor’s) primary language was not English, and as a result they could not understand any warnings that were given.
- The doctor pressured the patient to sign a consent without taking the time to answer all of their questions about the procedure.
- The doctor failed to warn about a known, specific risk that ended up harming the patient.
It is important to emphasize that medical malpractice based on a failure to warn can be proven by a “preponderance of the evidence” under Ohio law. This is far lower than the standard for proving a criminal act. The patient need only show that it was more likely than not that the healthcare provider was negligent.
Frequently Asked Questions About Failure to Warn Medical Malpractice Claims in Ohio
Who can sign an informed consent on my behalf?
Under Ohio’s informed consent law, a parent must sign an informed consent on behalf of a minor child. In the case of an incapacitated adult, their legal representative can give informed consent. For example, if the patient has an Ohio Health Care Power of Attorney, the agent named in that document can give informed consent.
How long do I have to sue a doctor based on a failure to warn?
In Ohio, medical malpractice claims of any kind usually need to be filed within one year of the negligent act. If the patient does not discover the negligence until sometime after it is performed, the claim needs to be filed within 1 year of the date they should have discovered the problem through the exercise of reasonable care. But in no case may a medical malpractice claim based on failure to warn be filed more than 4 years after the occurrence or act.
What compensation can I seek for a doctor’s failure to warn?
In any medical malpractice case, the injured patient may seek both economic and non-economic damages. Economic damages are effectively your out-of-pocket losses, such as the additional medical bills you incurred to correct the original doctor’s negligence. Non-economic damages cover your pain and suffering and other “subjective” losses. While there is no limit on economic damages in Ohio, state law caps non-economic damages in medical malpractice cases.
Contact a Cleveland Failure to Warn Lawyer Today
If you have been harmed by your doctor’s failure to properly explain an inherently risky medical procedure to you, it is important to speak with a qualified Cleveland failure to warn lawyer as soon as possible. Call Tittle & Perlmuter today to schedule a free case strategy session.
