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Ullmann v. Duffus11/15/2005
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.
Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, syllabus. The doctrine of informed consent is based on the theory that every competent human being has a right to determine what shall be done with his or her own body. Siegel v. Mt. Sinai Hospital (1978), 62 Ohio App.2d 12. Our research has revealed no case in which an Ohio court has recognized a tort claim for lack of informed consent against a veterinarian.
{ } Even if Ohio courts recognized a claim for lack of informed consent against a veterinarian, expert testimony would be required " 'to establish what the claimed undisclosed material risks and dangers * * * are, and if disputed, whether those particular undisclosed risks did in fact materialize and cause the patient's injuries. These issues are beyond the knowledge of the lay person and require expert testimony.' " Fernandez v. Ohio State Pain Control Ctr., Franklin App. No. 03AP-1018, 2004-Ohio-6713, at , quoting Valerius v. Freeman (Oct. 19, 1994), Hamilton App. No. C-930658; See Lipp v. Kwyer, Lucas App. No. L-02-1150, 2003-Ohio-3988, at ("expert testimony is necessary to establish the significant risks which would have been disclosed to support the plaintiff's claim since the probability and magnitude of those risks is a matter of medical judgment beyond the knowledge of the lay person"). With respect to the second element of Nickell, this court has held that a plaintiff must present expert testimony to prove:
" hat a reasonable medical practitioner of the same school practicing in the same or similar communities under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed treatment, and of proving that the physician departed from that standard." * * * Badger v. McGregor, Franklin App. No. 03AP-167, 2004-Ohio-4036, at , quoting Pierce v. Goldman (May 17, 1989), Hamilton App. No. C-880320. Appellant's lack of expert testimony is fatal to a claim of lack of informed consent, and Dr. Duffus was entitled to judgment as a matter of law on that claim.
{ } In the fourth count of her complaint, appellant alleges a claim for negligent infliction of emotional distress. Ohio does not recognize such a claim under the facts of this case. "In the absence of statutory provision therefor, Ohio courts have limited recovery for negligent infliction of emotional distress to such instances as where one was a bystander to an accident or was in fear of physical consequences to his own person." High v. Howard (1992), 64 Ohio St.3d 82, 85-86. An owner who suffers emotional distress after witnessing the negligent damaging of personal property arising out of the defendant's negligence has no right of recovery. Strawser v. Wright (1992), 80 Ohio App.3d 751, 755, citing Reeser v. Weaver Bros., Inc. (1989), 54 Ohio App.3d 46, 49.
{ } The law of Ohio regards a pet as the personal property of its owner. Strawser at 754. In Strawser, the court addressed a plaintiff's claim for negligent infliction of emotional distress arising out of the death of her new puppy, stating: "We sympathize with one who must endure the sense of loss which may accompany the death of a pet; however, we cannot ignore the law. * * * Ohio law simply does not permit recovery for serious emotional distress which is caused when one witnesses the negligent injury or destruction of one's property." Id. at 754-755. Ohio law does not recognize non-economic damages for injury to companion animals. Oberschlake v. Veterinary Ass
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