The patient's back hurt worse after surgery than it did before, a risk of which he claimed he was not aware. He said he'd never been given or signed a consent form. The surgeon couldn't specifically recall notifying the patient of the surgery's risks, but assumed he'd done so because that's what he always did.

It sounds like a weak defense and an open-and-shut medical malpractice case. But an Ohio court dismissed the lawsuit due to the patient's failure to produce an expert witness and definitively establish that the surgery caused the pain. While the ruling let the surgeon off the hook, observers note that he could have avoided protracted litigation if only he'd obtained the patient's signed consent.

Patient Robert White's first discectomy was deemed a success. After a fall rekindled his back pain, surgeon Warren Leimbach II, MD, suggested a second discectomy. The risks involved in a second discectomy are higher, however, as scar tissue from the previous surgery increases the possibility of damage to nearby nerves.

Mr. White and Dr. Leimbach disagreed on whether those risks had been fully explained. That dispute never reached a jury's consideration, though, since a trial judge ruled that without an expert witness, Mr. White lacked hard evidence that the surgery caused the pain.

While malpractice plaintiffs are always advised to retain expert witnesses, and many states require expert testimony before a malpractice suit can be filed, Mr. White's attorney, Charles H. Cooper Jr., says he opted against experts since Ohio is not among those states. In addition, he says, one of Dr. Leimbach's experts noted in a pre-trial deposition that no other factors but the surgery would have caused the pain (though he declined to make a definitive statement on this point).

The trial judge, unconvinced that there was a direct connection, dismissed the lawsuit. Mr. White fought the dismissal. An appeals court overruled the trial court with a decision that not only expanded patients' rights in malpractice cases, it also raised the ire of a regional medical society.

The appeals court's ruling declared that physicians who fail to provide informed consent are engaging in a form of battery, and battery cases do not require expert witnesses to provide proof. The Academy of Medicine of Cleveland and Northern Ohio filed a legal brief opposing this decision, arguing that it "would have undoubtedly resulted in an increase in the number of lawsuits filed against physicians."

That scenario was never tested. The state's supreme court struck down the appeals decision, siding with the trial court that the second surgery's link to the patient's pain could not be proven.

Dr. Leimbach's attorney did not respond to a request for comment.

Leigh Page