Attorney Calder Mellino explains how informed consent works in Ohio, why the paperwork alone isn’t enough, and when undisclosed risks can support a malpractice claim.
John Maher: Hi, I’m John Maher and I’m here today with Calder Mellino, a partner with The Mellino Law Firm, a personal injury law firm in Cleveland, Ohio with a focus on medical malpractice. The firm has over 40 years of experience in handling medical malpractice cases, has been involved in several landmark cases in Ohio and has received verdicts against every hospital system in Cleveland. Welcome Calder.
Calder Mellino: Thanks for having me.
Defining Informed Consent
John: Sure. Calder, today we’re talking about medical malpractice and informed consent. So why don’t you start off by just telling everybody what informed consent means?
Calder: Sure. I think the most important thing to understand about informed consent is that it is not a piece of paper. It’s not simply just something that you sign or the doctor signs. Informed consent is first and foremost a conversation between you and your medical provider about the treatment that will be provided.
It’s also not just surgeries or procedures. Any type of treatment should involve one-on-one conversation with you and the medical provider that will be providing the treatment as to what the treatment is, what it involves, and what are the material risks and dangers and possible complications that could result from the treatment so that you can make an informed decision as to whether or not to proceed with that treatment.
When a Bad Outcome Becomes an Informed Consent Claim
John: Okay, and so when does just a bad outcome of a treatment become an informed consent problem versus just, like you said, an expected risk of the procedure?
Calder: Well, sure. I mean, you can’t expect anything that you didn’t know about, and so informed consent becomes an issue when it’s not something that was discussed or brought up in that conversation between you and your medical provider.
In Ohio, the elements of an informed consent claim are three pronged. It’s one that material risks and dangers were not discussed, that those material risks that were not discussed happened and were caused by the treatment provided and that a reasonable person would not have proceeded or may not, would choose not to proceed with the treatment had they known about those risks. And so when we’re talking about a bad outcome, if it’s something that was material that a reasonable person would’ve wanted to know about in making that decision and didn’t have that information in making that decision, that’s when we’re talking about a problem of informed consent.
What Providers Must Disclose Before Treatment
John: Okay. So what are some of the key things that a provider has to explain for consent to truly be informed?
Calder: Yeah, I mean, so that is going to depend on each type of treatment but, like I said, the test is material risks and dangers that are inherent to that treatment. Whether what we’re talking about is material or to the treatment, that is something that might require expert testimony under the law in Ohio to support a lawsuit. And that’s certainly something we’ve encountered and done, but it’s something that’s material that’s substantial and that would’ve changed or had an impact on the decision of whether or not to proceed with that treatment.
John: So generally, this probably wouldn’t be something like the doctor says, “hey, this is very unlikely that this would happen, but this can happen.” And then that unlikely thing happens, and then you say, “well, hey, you said that this wasn’t likely to happen”, and that wouldn’t be enough, because in that case, they informed you that, even though it’s unlikely, sometimes these things do happen.
Calder: That’s right. One of the biggest problems we see in these informed consent claims isn’t how they said it, or what was said or not said. It’s that the physician tried to let the paperwork do the talking for them or didn’t have that conversation and their defense says, “well, it’s in the piece of paper you sign.” And that’s not informed consent. Informed consent again, is that conversation.
The piece of paper that we’ve all seen, we’ve all signed, that the doctor signs, that is not a substitute for the conversation. The fine print doesn’t do the talking for the doctor. It’s a conversation that needs to happen between the medical provider and the patient and what was said and disclosed to the patient.
Common Informed Consent Failures in Real Cases
John: So what are some of the most common informed consent failures that you see in real cases?
Calder: Yeah, I mean, a lot of the most common informed consents are when we see wrong side surgeries where they’re doing the complete wrong part of the patient’s body, or where we see major complications that are well known in the medical community, but not to patients, that are just simply not discussed. Or when you see complications that are inherent to the treatment, [which] for whatever reason were not discussed with the patient prior to beginning the course of treatment.
John: Would just something like minimizing the risks fall into this category, that something is unlikely to happen and the doctor just kind of poo-poos it, if you will, and says, “yeah, no, that’s not, it’s very unlikely that something like that’s going to happen”, but actually it happens in 10% of the cases or something along those lines.
Calder: Sure. I think that that’s going to be a tough case, but that’s why this needs to be a conversation between you and the provider and not relying on just something that’s in the paperwork or doing the paperwork for you. Each doctor is going to have their own experience and each patient’s going to be individual. And we’re just talking about, well, he told you, but he didn’t think it or wouldn’t think it would happen. I mean, you were still disclosed and that was still something for you to think about before the treatment began.
How to Prove What Was Said in the Consent Talk
John: Right. Okay. So what evidence do you typically look for to prove that the conversation itself did or didn’t happen?
Calder: Right. So that’s very important in these cases because without outside evidence, these cases can often turn into a he-said she-said. The patient says, “well, no one ever told me that.” And the doctor says, “of course I did”. Most often what they actually say is, “well, I have this conversation over and over again every day with all my patients. I can’t possibly remember this one specific conversation, but I say it to all my patients. So of course I said it to this patient.”
And those are really tough because at the end of the day, a jury is most likely going to give the doctor the benefit of the doubt over an individual patient who had a bad outcome and may just seem unhappy. So what we’re looking for is circumstances, other clues outside evidence in the medical record for all these entries in the medical record, including the informed consent documentation. We can see when that was entered.
Was it entered during the meeting or was it done way after the fact by the doctor, maybe even after this complication arose and now they’ve gone back to cover themselves? Was it only executed by the doctor and not the patient or the other way around? We look at the timing of all these things to kind of play detective and sort out what really went down and look at what the informed consent documentation says. I mean, it’s not just the boilerplate template. The physician and patient need to fill in parts about what was talked about and what was said. And so what does the informed consent documentation say was discussed in that conversation?
Recording Visits and Documenting Consent
John: These days, everybody is walking around with a digital recorder in their pocket or a video camera in their pocket. Do you recommend at all that patients record their conversations that they’re having with doctors and is that allowed or is that something that you’d recommend?
Calder: Sure. It can’t hurt. Ohio is a single consent state. You’re always allowed to record conversations that you’re having. More and more doctors are recording those conversations. I know many of the main hospitals in Cleveland are now using AI to record conversations between medical providers and patients and have them summarize. So they’re recording your conversations. There’s no reason you can’t do the same for yourself.
Questions Patients Should Ask Before Signing
John: What are some other ways that patients could advocate for themselves before a procedure and what questions should they ask, and should they even ask to get it in writing?
Calder: Yeah, absolutely. I mean, as I’ve said, this is a conversation. It should not be a one-way conversation. You should have questions. Be inquisitive, don’t make assumptions. Your medical provider is absolutely looking out for the best for you and wants you to be fully informed about the treatment and are always very knowledgeable about the treatment they’re providing. You should not hesitate to ask questions.
And in terms of advocating for yourself, then when it comes time to sign that informed consent documentation, just read it and make sure it accurately reflects the conversation that you had, that the things you discussed are in there. And if there’s anything in there that wasn’t discussed, ask about it so that you can know.
Alternatives, Risks, and Making an Informed Choice
John: What are some of the typical things that you should ask? Is it just as simple as saying, “hey, what are the risks of this procedure? And are there alternatives if I decide that I don’t want to go through with this?”
Calder: Yes. Yeah, I mean, you hit the nail on the head. Those are the two biggest things, “what are the complications”, especially what’s most common. But maybe you want to know, “I want to know every little thing. Tell me the minor ones and also what are the alternatives?” If I’m worried about a complication, it’s something I’m thinking about. “What are the alternatives and what are the risks or possible complications or shortcomings of alternatives? And ask the doctor, “why is it that this is the treatment you’re recommending?” So again, you can be fully informed going into the treatment.
John: Alright, well that’s really great information, Calder. Thanks again for speaking with me today.
Calder: Thanks so much for having me.
John: And for more information, you can visit the Mellino Law Firm at mellinolaw.com or call 440-333-3800.