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Informed Consent

In Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, the Ohio Supreme Court established the tort of “lack of informed consent”:

“The tort of lack of informed consent is established when:  (a) 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;  (b) the unrevealed risks and dangers which should have been disclosed actually materialize and are the proximate cause of injury to the patient; and (c) 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.”

Ohio also has a statute that governs informed consent:  RC 2317.54.

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Caps on Damages: Medical Malpractice

Under Ohio law, in medical malpractice cases (i.e., not personal injury or wrongful death cases), the amount one can recover for non-economic losses caused by a negligent physician or other healthcare provider is capped (limited).  See RC 2323.43.  The caps are as follows:

A. Catastrophic Injuries:  $500,000/plaintiff/$1Million/Occurrence

“Catastrophic” Defined:  A permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or a permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.

B. Non-Catastrophic Injuries:  The greater of $250,000 or 3 times the plaintiff’s economic losses (up to $350,000/plaintiff) or a maximum of $500,000 per occurrence.  

RC 2323.43 went into effect on April 11, 2003.

Comments:

First, there is no cap on economic damages, such as medical expenses, loss of income, future medical care, etc.  The caps only apply to non-economic damages, such as pain and suffering, emotional distress, mental anguish, etc. 

The Ohio Supreme Court will need to determine if these caps comply with the Ohio Constitution.  The Court already has upheld the personal injury caps (See Post on PI caps), but the PI caps do not apply to ”catastrophic injuries” as defined in the statute; in medical malpractice cases, on the other hand, the caps are higher than those imposed in non-catastrophic cases.

TJB’s Opinion

I’m sure you would like to know how I feel about damages caps.  I have no problem imposing damages caps, so long as the caps are fair and reasonable.  For example, I feel that the personal injury damages caps for non-catastrophic injuries (see RC 2315.18) are reasonable; they protect a defendant against an outlandish jury verdict for non-catastrophic injuries.  But there must be an exception for severe injuries, and the cap needs to be substantial in such cases (i.e. much more than the RC 2315.18 or 2323.43 caps).  If you were seriously injured and had a permanent disability, these caps are not nearly sufficient to cover the losses that might accompany such injuries.  That’s my opinion.

Jeff Beausay

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Birth Injuries/Cerebral Palsy

cp-photoOne of the most controversial areas of medical malpractice litigation is “birth injury” litigation.  The most common of these are brought by the parents of children with cerebral palsy (CP), who claim that the CP was caused (at least in part) by the negligence of the defendant physicians or nurses before, during, or shortly after labor and delivery.  ”Birth injury” is a misnomer because these types of injuries can occur prenatally from conception until birth, and can indeed occur after birth.  The cases are usually filed against an obstetrician, but can also include pediatricians, nurses, hospitals and others.  These cases are controversial because they involve large sums of money, and the cause of CP in many cases is not known.  Large settlements and jury verdicts result in higher insurance premiums for the affected doctors, a cost that then is passed on to consumers of health care (in the form of health insurance), and the public at large (in the form of health care that is paid for under Medicaid, Medicare, and other government programs).

Definition of Cerebral Palsy.  “Cerebral palsy” is a general term that describes a group of disorders that appear during the first few years of life and affect a child’s ability to coordinate body movements.  These disorders are caused by damage to a child’s brain early in the course of development. The damage can occur during fetal development, during the birth process, or during the first few months after birth.

Cerebral palsy ranges from mild to severe.  Physical signs of cerebral palsy include weakness and floppiness of muscles, or spasticity and rigidity.  In some cases, neurological disorders such as mental retardation or seizures also occur in children with cerebral palsy.

Cerebral palsy is not curable.  However, getting the right therapy for your child can make a big difference.  Today, children with cerebral palsy benefit from a wide range of treatment options and innovations.

cp-types

Incidence.  About 1-2 babies/1000 born at or near term (> 34 weeks) develop cerebral palsy.  It is estimated that 15-20% of cases of CP are caused during labor and delivery.

Causes.  The cause of CP in many cases is not known.  We know that CP results from an abnormality in or injury to the cerebrum (the largest area of the brain), which controls sensation and voluntary motor function.  But we do not always know how or when the abnormality/injury occurs.  Although cerebral palsy affects movement, the underlying problem originates in the brain, not in the muscles themselves.

Doctors and researchers don’t completely understand the cause of all cases of cerebral palsy, which are usually present at birth (congenital).  For many years, doctors and researchers believed that cerebral palsy was caused by a lack of oxygen during birth.  Now they believe that only a small number of cases are caused by problems during labor and delivery.

The causes of Cerebral Palsy include maternal infection during pregnancy, incompatibilities between the blood of the mother and her fetus, genetic or metabolic disorders causing abnormal brain development before birth, and disturbances to brain circulation before birth, caused by an artery spasm or blood clot, similar to a stroke in adults.

Comments.  Birth injury litigation has caused a great deal of controversy over the last 20 or so years.  Life care plans for individuals with CP usually run in the millions of dollars, depending on the severity of the disability.  Consequently, these cases involve large sums of money, and both sides (plaintiffs and defendants) have substantial financial risk in going to trial.

It is almost universally agreed that perinatal asphyxia can cause CP, but so can many other things.  The difficulty lies in proving the cause in any given case.  Not only must we prove what caused the CP, we also must prove when the injury occurred, and that the injury could have been avoided.

If you suspect that your child has sustained a birth injury due to the negligence of a healthcare provider, please feel free to contact us to discuss your case.

Jeffrey Beausay

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Periventricular Leukomalacia (PVL)

What is Periventricular Leukomalacia (PVL)?

Periventricular leukomalacia (PVL) is damage and softening of the white matter, the inner part of the brain that transmits information between the nerve cells and the spinal cord, as well as from one part of the brain to another.  Periventricular means around or near the ventricles (the spaces in the brain containing the cerebrospinal fluid); leuko means white; malacia means softening. 

With PVL, the area of damaged brain tissue can affect the nerve cells that control motor movements.  As the baby grows, the damaged nerve cells cause the muscles to become spastic or tight, and resistant to movement.  Babies with PVL can develop cerebral palsy (a group of disorders that prevent the child from controlling his/her muscles normally), and may have intellectual or learning difficulties.  PVL can occur alone or in addition to intraventricular hemorrhage (IVH) (bleeding inside the brain).

There are two basic components to PVL:  Focal necrosis and more diffuse gliosis.  In cystic PVL, the focal necrotic component is large and evolves into cysts.  In noncystic PVL, the focal necrotic component is small and evolves into small glial scarring, rather than cysts.  Cystic PVL is the most severe form of PVL. 

What causes PVL?

The white matter of premature infants is vulnerable, especially to ischemia (reduced blood flow), but also to infection/inflammation.  These two causes can operate in concert to potentiate each other.  Thus, most babies with PVL are premature. 

Outcome

The most common outcome is spastic diplegia, which means tight, contracted muscles, especially in the legs. 

Diagnosis

Head ultrasound:  Usually performed at birth and over a period of weeks thereafter.

MRI (magnetic resonance imaging):  Shows necrosis (“softening”) of white matter dorsal and lateral to the external angles of the lateral ventricles. 

Treatment

There are no treatments for PVL directly.   However, parents can often benefit from physical therapy, occupational therapy, and speech therapy offered through local organizations who specialize in helping children with this and similar disorders. 

Prevention

Corticosteroids are often given to pregnant mothers at risk for premature birth.  These medications can reduce the respiratory difficulties these children often encounter at birth.

For more information, see the National Institute of Health section on PVL.

Contact Me

If you or someone you know has a child with a suspected birth injury, it is important that you consult with someone who actually handles birth injury litigation; it is very specialized, and very few attorneys know what they’re doing in these cases.  In my career, I have been fortunate to have handled many of these cases (for plaintiffs and defendants).  If you would like to discuss your case, please feel free to contact me.

T. Jeffrey Beausay

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© Jeffrey Beausay
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