
    SNYDER et al., Appellants, v. ASH et al., Appellees. 
    [Cite as Snyder v. Ash (1991), 72 Ohio App.3d 795.]
    Court of Appeals of Ohio, Stark County.
    No. CA-8211.
    Decided March 11, 1991.
    
      
      Tzangas, Plakas & Mannos, Lee E. Plakas and Angela T. Vagotis, for appellants.
    
      Roetzel & Andress, Edward A. Digiantonio and Sue Ellen Swift, for appellees.
   William B. Hoffman, Judge.

Plaintiffs-appellants are Elizabeth B. Snyder et al. and defendants-appellees are David C. Ash, D.D.S., et al.

On October 14, 1985, Dr. Ash examined Snyder and advised her to undergo a wisdom tooth extraction involving three impacted molars. Plaintiff returned to Ash’s office on October 21, 1985, and with the assistance of Ash’s office assistant (Echman), completed a standard consent form. (Appendix A.) Included on the form was a “line item” (12) that a fractured jaw could result from the extraction, along with other complications such as brain damage and/or death. There is conflicting testimony as to the extent of any preextraction discussion (as to complications) between Snyder and Ash.

During the extraction performed by Ash on October 23, 1985, Snyder’s jaw was fractured. Ash located the fracture (specifically a left mandible fracture) and took immediate “emergency” steps, including the placement of “arch bars” and alignment wires in the patient’s mouth. As a result of both the extraction and alignment measures performed by Ash, Snyder sought treatment from an oral surgeon, Dr. Sandel. Sandel performed a “bilateral ostetomy” whereby Snyder’s jawbone was cut and realigned, and her mouth was wired shut a second time.

Appellant filed suit in the Court of Common Pleas of Stark County, and the matter came on for jury trial. At the conclusion of trial, the jury returned a verdict in favor of defendant Ash. The jury also returned specific interrogatories stating that defendant was not negligent in the care and treatment of Snyder, and answered affirmatively that Ash “gave an informed consent to the surgical procedure undertaken.” The court entered its judgment entry on the verdict on May 10, 1990, and it is from that judgment that appellant appeals.

Snyder raises the following three assignments of error:

“A. The trial court erred as a matter of law as the statutory informed consent instruction was the incorrect law as applied to appellee dentist and misled the jury.

“B. The trial court committed reversible error in refusing to admit appellee Ash’s office records into evidence, as the office records are admissible under the business record exception to hearsay and the exclusion from evidence is prejudicial to appellant.

“C. It was error for the trial court to exclude the jury instruction of res ipsa loquitur upon the jury’s request of a definition of negligence.”

A

Before discussing this assigned error, we note that it is unchallenged that plaintiffs’ case was grounded on alternative theories of recovery: negligence and/or failure of informed consent.

Appellants argue that the trial court gave an erroneous instruction on informed consent. The record reveals that both parties timely provided the court with their proposed jury instructions in accord with Civ.R. 51(A). As to the question of informed consent, plaintiffs requested an instruction based upon the common-law instruction found in Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 17 OBR 281, 477 N.E.2d 1145, syllabus. (Appendix B.) On the other hand, defendants filed citations to Ohio Jury Instructions, citing, but not delineating, both the common-law instruction of Nickell and the OJI instruction based upon R.C. 2317.54. (Appendix C.)

Plainly, the difference between the two instructions is that the statutory instruction carries with it the presumption that a written consent is valid, absent bad faith or fraudulent misrepresentation. See second paragraph of R.C. 2317.54. The common-law instruction requires only that plaintiff demonstrate a “failure to disclose” material risks and dangers to find a lack of informed consent.

Based upon the well-established principle expressio unius est exclusio alterius, R.C. 2317.54 does not apply to appellee-dentist. Notwithstanding that the statute does not cover dentists, the trial court gave a hybrid, statutory/common-law instruction, viz., to show a lack of informed consent, plaintiffs were required to prove a lack of good faith or the presence of fraudulent misrepresentation of material facts in the obtaining of said consent. The trial court stopped short of instructing that the statutory “presumption” of validity was created by the written consent form executed by Snyder, as suggested in the Comments to 3 OJI 331.05, paragraph 5.

Appellants timely objected, pursuant to Civ.R. 51(A), to the court’s charge, on the straightforward grounds that the instruction was confusing and misleading. The trial court overruled the objection.

At this juncture, we note that neither party has provided us with controlling authority that the court below acted either properly or improperly in providing the instruction as given. Niekell, cited by both parties and cited supra, is a pre-statute decision involving a physician. (We say “pre-statute” because this 1985 opinion arose out of thoracic surgery which took place in 1970. There is no mention of R.C. 2317.54 [effective July 28, 1975] in Niekell.) Notwithstanding that Niekell deals with informed consent as to a physician, this court believes the standard enunciated in Niekell applies equally to the practice of dentistry.

We therefore conclude that the charge, as given, improperly added an additional element of proof to appellants’ cause of action, viz., the proof of bad faith or fraudulent misrepresentation. The subject charge impeded plaintiffs’ cause of action (sounding in informed consent) in a manner sufficiently prejudicial to constitute reversible error.

Accordingly, we sustain appellants’ first assigned error.

B

Prior to oral argument, appellant withdrew this assignment of error, providing notice to appellee. Said withdrawal is accepted.

C

Evidence at trial indicated that at all times during Snyder’s tooth extraction by Ash, Ash was the only person present and that Ash was in exclusive control of the operation. The trial court appropriately instructed the jury in its initial general charge on negligence, including res ipsa loquitur language. It did not, however, use the specific designation res ipsa loquitur in so doing.

During deliberations, the jury asked to have the instructions on negligence reread to them. The trial court did so, but deleted that portion containing the res ipsa loquitur language which had been part of the original instruction. Appellants timely objected to the deletion.

In Marshall v. Gibson (1985), 19 Ohio St.3d 10, 19 OBR 8, 482 N.E.2d 583, the Supreme Court declared: “It is thus clear that an incomplete charge will constitute grounds for reversal of a judgment where the charge as given misleads the jury.” Appellees factually distinguish Marshall. In the case sub judice, the complete and proper instruction on negligence was given to the jury in the initial general charge by the trial court, whereas in Marshall, the jury never received the complete instruction (on comparative negligence). It is obvious the jury in the case sub judice intended further deliberations on the issue of negligence by their very propoundment of the specific request for reinstruction. Appellees would have us condone answering the jury with supplemental, incomplete, or misleading specific instructions as long as the jury had been given the proper instruction as part of the initial general charge. We are not willing to do so.

We conclude that failing to include the res ipsa loquitur language of the negligence instruction in the court’s reinstruction on negligence effectively minimized, if not abolished, appellants’ potential cause of action on the res ipsa loquitur theory. Such failure constituted prejudicial error.

Accordingly, appellants’ third assignment of error is sustained.

The judgment of the Stark County Court of Common Pleas is reversed, and the cause is remanded to the trial court for a new trial.

Judgment reversed and cause remanded.

Putman, P.J., and Smart, J., concur.

APPENDIX A

APPENDIX B

Informed Consent

This is a civil action brought by the plaintiff to recover damages for injury claimed to have been caused by the failure of the defendant to inform the plaintiff about risks of injury in the surgical procedure undertaken by the defendant. To recover on this claim, the plaintiff must prove to you by the greater weight of the evidence that:

A. The defendant failed to disclose to and discuss with the plaintiff the material risks and dangers inherently and potentially involved with respect to the proposed surgical procedure and;

B. The undisclosed risks and dangers that should have been disclosed by the defendant did in fact happen and are the direct cause of injury to the plaintiff and;

C. A reasonable person in the plaintiffs position would have decided against the surgical procedure if the material risks and dangers inherently an [sic ] incidental to it had been disclosed to her prior to the surgical procedure.

(OJI Section 331.04(1), Pg. 191, 192)

MATERIAL RISK. A risk is material when a reasonable person, while in the condition that the physician knows or should have known he was in, would be likely to consider important the risk in deciding whether or not to refuse the proposed surgical procedure.

(OJI Section 331.04(2), Pg. 192)

Plaintiff signed a written consent to the surgical procedure used by defendant, and that written consent would be valid and effective except where the evidence showed that the surgical procedure offered a different degree of risk than that which was explained to the patient. (Bruni [v.] Tatsumi (1976) 46 Ohio St.2d 127, 136-137.)

A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. (Harnish v. Children’s Hospital Medical Center, 439 N.E.2d 240.)

The physician failed to disclose a material risk associated with the procedure and the Plaintiff would have not undergone the procedure had she known of the risk of harm that in fact occurred. (Arena v. Gingerich, 748 P.2d 547 (OR.1988.)

The duty to disclose serious risks should not be based upon the doctors [sic ] practices but on the patient’s need for full disclosure of serious risks and the feasibility of alternatives in order for the patient to make an intelligent and informed choice. (Congrove, et al. v. Homes, 308 N.E.2d 765 (1973).)

APPENDIX C 
      
      . R.C. 2317.54 provides:
      "No hospital, home health agency, or provider of a hospice care program shall be held liable for a physician’s failure to obtain an informed consent from his patient prior to a surgical or medical procedure or course of procedures, unless the physician is an employee of the hospital, home health agency, or provider of a hospice care program.
      “Written consent to a surgical or medical procedure or course of procedures shall, to the extent that it fulfills all the requirements in divisions (A), (B), and (C) of this section, be presumed to be valid and effective, in the absence of proof by a preponderance of the evidence that the person who sought such consent was not acting in good faith, or that the execution of the consent was induced by fraudulent misrepresentation of material facts, or that the person executing the consent was not able to communicate effectively in spoken and written [E]nglish or any other language in which the consent is written. Except as herein provided, no evidence shall be admissible to impeach, modify, or limit the authorization for performance of the procedure or procedures set forth in such written consent.
      “(A) The consent sets forth in general terms the nature and purpose of the procedure or procedures, and what the procedures are expected to accomplish, together with the reasonably known risks, and, except in emergency situations, sets forth the names of the physicians who shall perform the intended surgical procedures.
      "(B) The person making the consent acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner.
      "(C) The consent is signed by the patient for whom the procedure is to be performed, or, if the patient for any reason including, but not limited to, competence, infancy, or the fact that, at the latest time that the consent is needed, the patient is under the influence of alcohol, hallucinogens, or drugs, lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances.
      "Any use of a consent form that fulfills the requirements stated in divisions (A), (B), and (C) of this section has no effect on the common law rights and liabilities, including the right of a physician to obtain the oral or implied consent of a patient to a medical procedure, that may exist as between physicians and patients on July 28, 1975.
      “As used in this section the term "hospital” has the meaning set forth in division (D) of section 2305.11 of the Revised Code; “home health agency" has the meaning set forth in division (A) of section 3701.88 of the Revised Code; and “hospice care program” has the meaning set forth in division (A) of section 3712.01 of the Revised Code. The provisions of this division apply to hospitals, doctors of medicine, doctors of osteopathic medicine, and doctors of podiatric medicine."
     