{¶ 93} I agree with the result reached in the majority opinion . Although I also agree with the dissent that the trial court improperly resolved disputed facts, I find those facts are not material to the case. A fact is material if it affects the outcome of the case under the applicable substantive law, Russell v. Interim Personnel, Inc. (1999),135 Ohio App. 3d 301, 733 N.E. 2d 1186.
{¶ 94} As the majority states, the elements of an action for lack of informed consent are: (1.) an undisclosed risk that should have been disclosed; (2.) which actually occurred; (3.) resulting in harm to the patient; and (4.) if the patient had been informed of the risk, she would not have consented to the procedure. Ware, supra. I agree with the majority none of these elements are present in this case. I also agree appellants did not show the procedure was unnecessary.
{¶ 95} The evidence presented by appellants is Nancy Johnson wanted the procedure done by a different doctor, in a different facility. This is not an informed consent case, but rather, a battery.
{¶ 96} I agree the trial court reached the correct decision.
JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the, Richland County Common Pleas Court, Ohio, is affirmed. Costs assessed to Appellant.