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Jury Instruction on “Foreseeability of Harm” Did Not Affect Result in Medical Malpractice Case

Case Involving Akron Child’s Death Returns to Appeals Court to Address Other Issues

The Ohio Supreme Court today determined that an unnecessary jury instruction did not change the outcome of a medical malpractice lawsuit filed by the parents of a 5-year-old. Their case alleged medical negligence after the child died while being treated at an Akron hospital.

The jury instruction explained foreseeability of harm, a standard for determining “whether a physician has exercised reasonable care in understanding or determining the existence of a risk of harm associated with a particular course of treatment,” Chief Justice Maureen O’Connor wrote in the court’s majority opinion.

When the parties do not dispute that a physician considered a treatment’s risks and benefits and understood that the treatment carried some risk of harm, then a jury instruction about the foreseeability of harm does not need to be given, the chief justice explained.

Although the instruction was provided to the jury in this case, it was not prejudicial, the court concluded.

The ruling reverses the judgment of the Ninth District Court of Appeals on this issue and returns the case to the appellate court to consider other claims raised by the parents.

Hospital Care
On the night of January 13, 2007, the parents of Seth Cromer took him to Children’s Hospital Medical Center of Akron. Seth had been treated earlier that week for an ear infection. In the hospital emergency room, the doctor diagnosed the boy as suffering from shock.

His blood pressure was unstable. Tests showed his blood was not providing enough oxygen to his tissues. Later, carbon dioxide levels in his blood began rising. He was moved to the pediatric intensive-care unit, where catheters were inserted to treat and monitor him. The attending physician also placed a tube into Seth’s trachea to minimize stress on the heart and help him breathe. However, early the next morning, Seth went into cardiac arrest and died.

During the trial, the Cromers’ medical expert took issue with the timing of the various treatments. In particular, the expert concluded that hospital employees waited too long to intubate Seth. The hospital’s doctors testified, however, that the risk of a sudden blood pressure drop and cardiac arrest from intubation outweighed the benefits of the procedure.

The trial court instructed the jury on the elements needed to prove a negligence claim and on foreseeability, which required the jury to decide whether the hospital personnel should have foreseen that Seth’s death likely resulted from their actions or failure to act.

The jury found the hospital was not negligent in Seth’s death. At that point, the jury’s deliberations should have been complete, but it also addressed a causation question and determined the hospital’s negligence was not the direct and proximate cause of Seth’s death. Although the trial court noted that the jury had no need to answer the causation interrogatory, the court ruled that the two conclusions were not inconsistent.

Path to Supreme Court
The Cromers asked for another trial, but the request was denied. On appeal, the Ninth District reversed in favor of the parents based on claims related to the jury instructions and remanded the case for a new trial. The Cromers’ other arguments were not addressed. The hospital appealed the decision to the Ohio Supreme Court.

Foreseeability of Harm and Physician Standard of Care
Chief Justice O’Connor noted that the foreseeability concept is important to all negligence claims. Negligence actions involve a duty. In an established physician-patient relationship, the physician’s duty to a patient is clear, she explained.

“[T]he scope of the duty owed includes an augmented expectation that physicians will exercise the degree of care that is reasonable in light of the physician’s superior training and knowledge,” she wrote. “Thus, the standard of care applicable to medical professionals is to exercise the degree of care that a medical professional of ordinary skill, care, and diligence would exercise under similar circumstances.”  

But consideration of foreseeability of harm is not eliminated by this heightened standard of care, she continued. Because physicians are expected to recognize medical symptoms and be aware of the risks, they “are expected to foresee a risk of harm that a medical professional of ordinary skill, care, and diligence would foresee under similar circumstances,” Chief Justice O’Connor wrote.

“Accordingly, foreseeability of harm is relevant to a physician’s standard of care, and a correct, general statement of the law regarding the standard of care or the breach of that standard includes the element of foreseeability,” she reasoned.

As a result, giving a foreseeability jury instruction in a medical malpractice case is not improper, she concluded.

Extra Jury Instruction Did Not Change Trial Outcome
In this case, though, the instruction was unnecessary. The parties did not dispute that the treating doctors foresaw some possible risk of harm, so the question was whether their treatment decisions were reasonable given the risks, the chief justice noted.

The court then turned to whether the unneeded foreseeability jury instruction misled the jury and affected the outcome of the trial. The chief justice explained that the court must address the secondary issue of prejudice in this case to decide whether the appeals court’s order for a new trial should be affirmed or reversed.

She expressed a preference that the Ohio Jury Instructions include a foreseeability instruction for medical malpractice cases that specifies the standard for a “reasonable medical professional” rather than a “reasonable person.”

“However, because the instructions in the present case repeatedly defined ‘reasonable’ and ‘ordinary care’ solely in the context of a ‘reasonable hospital,’ a ‘reasonably careful physician,’ and ‘hospitals, physicians and/or nurses of ordinary skill, care and diligence,’ the jury instructions regarding the applicable standard of care, as a whole, were not misleading,” she concluded.

In addition, the jurors’ mistaken completion of the causation interrogatory was not shown to have led them to an erroneous decision, and their answer to that interrogatory was in line with the negligence finding and the general verdict, she reasoned.

The case now returns to the appeals court to consider the Cromers’ other claims, which became moot when the case was decided based on the jury instruction claim.

The chief justice’s opinion was joined by Justices Judith Ann Lanzinger, Judith L. French, and William M. O’Neill. Justices Terrence O’Donnell and Sharon L. Kennedy agreed only with the judgment of the court in a concurring opinion written by Justice O’Donnell. Justice Paul E. Pfiefer dissented.

The Concurrence
Justice O’Donnell agreed with the court’s judgment but not its reasoning. Like the majority, he would have reversed, but would send the case back to the appellate court for different reasons.

In his view, the trial court should not have provided the foreseeability jury instruction because foreseeability of harm was not an issue in the case. He also concluded that the jury instruction misstated the standard of care from the perspective of lay persons instead of medical professionals and incorrectly described the standard in terms of probability.

“In effect, the trial court informed the jury that the hospital’s doctors had a duty to foresee and treat only those diseases that appeared more likely than not to cause Seth’s illness, regardless of whether a reasonable medical professional in the same specialty under like circumstances would have correctly diagnosed and treated the condition from which he suffered,” Justice O’Donnell wrote.

He further reasoned that the majority misread the Ninth District’s decision regarding prejudice in the case.

“It is true that there is ‘no connection between an unnecessary foreseeability instruction and the jurors’ decision to complete the interrogatory for the mooted issue of causation,’ … but the court of appeals drew no such connection and did not find prejudice simply because the jury failed to comply with the trial court’s instruction not to answer the interrogatory on proximate cause if it found that the hospital had not been negligent,” he wrote. “The appellate court addressed only whether the erroneous instruction could be deemed harmless based on the jury’s additional finding that the hospital’s negligence had not proximately caused Seth’s death ….”

Justice O’Donnell concluded that the appeals court did not rule on “whether the jury instructions, taken as a whole, probably misled the jury,” and he would return the case to the Ninth District to decide that issue and whether it resulted in an erroneous verdict.

In Dissent
Justice Pfeifer believes that this case is not one of public or great general interest and that the majority decided the case on an issue the court did not accept for consideration.

‘[T]he sole, unremarkable holding of this case is that the appellate court did not do enough to show that the jury instructions it correctly held were erroneous were prejudicial,” Justice Pfeifer wrote. However, he continued, the Ohio Supreme Court refused to accept jurisdiction on a proposition of law concerning prejudice.

Once the jury instruction issue was resolved in favor of the Cromers, this court should have affirmed the appeals court’s decision, and the case should have ended, he reasoned.

On the issue of prejudice, Justice Pfeifer also concluded that the majority’s analysis was wrong. In his view, the Cromers were prejudiced by the foreseeability jury instruction, which incorrectly couched the standard in terms of a reasonable person’s, rather than a doctor’s, perspective.

“The inclusion of the foreseeability instruction prejudiced the Cromers by allowing the jury to consider the treating doctors not as clinicians bound to perform their jobs within certain standards, but as laymen dealing with the unthinkable, heartbreaking death of a young child,” he concluded.

2012-2134. Cromer v. Children’s Hosp. Med. Ctr. of Akron, Slip Opinion No. 2015-Ohio-229.

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