Update: On January 27, 2015, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

The Supreme Court of Ohio heard oral argument in the case of Cromer v. Children’s Hospital Medical Center of Akron on November 20, 2013. This was a defense verdict in a medical malpractice wrongful death case, reversed on appeal.  At issue before the Supreme Court is the appropriateness of the jury instruction given in the case on foreseeability.

After giving the standard medical negligence jury instructions in the case, the trial court also gave general negligence instructions on ordinary care and foreseeability.  The jury was charged that in order to find the Hospital negligent, the medical providers had to anticipate that death was likely to result to someone, yet failed to act. The jury found in favor of the Hospital, but the Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding that the foreseeability instruction given in this case was incorrect. Read the background of the case and the  particulars of the oral argument here and here.

The case has now been submitted for over a year.  I can sympathize with the justices– I had a very hard time writing the post after this argument because I found the defense position so tortured.  I teach torts, used to practice in the medical negligence field, and wrote after the argument that the defense argument in the case made no sense whatsoever to me.  I doubt all the justices feel that way, but suspect some do. Foreseeability is always a key aspect in general negligence cases, but can’t just be tossed in willy-nilly.

I’d hate to have to author this one.

 

0 Responses to Medical Malpractice Case Pending Over a Year. Cromer v. Children’s Hospital.

Foreseeability is a concept fraught with potential for abuse by defense counsel and misuse by a court when applied to tort claims without careful consideration. Taken in conjunction with the literal definition of “foreseeable”, a defendant can claim to not be liable unless the plaintiff can prove that it was foreseeable – i.e., more likely than not, or probable – that the defendant’s conduct would result in injury to someone. Defense counsel try to persuade trial courts that this is correct and distinguish this “standard” from the clearly improper proof that “the particular injury” suffered by plaintiff was likely to occur.

The potential problem with this can be seen in two fact patterns.

A drunk driver speeds through a school zone late at 2:30 a.m. at night with his headlights off. The conduct is clearly negligent at best, and arguably reckless and wanton. But what are the odds, really, that someone is even going to be in the school zone at precisely 2:30 a.m. such that the paths of the tortfeasor and plaintiff will collide? If it is not probable, it can be argued there is no foreseeability.

A doctor performs an ERCP without proper indications for the procedure, such that it was below standard of care, i.e., negligent according to ASGE guidlines, to expose the patient to the risk of pancreatitis as an unavoidable complication of an ERCP. The defendant defends the claim by establishing that the complication rate for pancreatitis secondary to performance of an ERCP is only 2-3%. Using this fact, the defendant claims that, as a matter of law, it was not foreseeable, i.e., more likely than not, that harm would occur to the patient. “Strict construction” and application of the concept of foreseeability would require the trial court to enter judgment in favor of the defendant.
(This precise fact pattern was the subject of appeal following a jury verdict finding no proximate cause in Needham v. Gaylor in the 2nd Dist. Ct. App., reversing the judgment based on the jury instructions.)

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Foreseeability is a concept fraught with potential for abuse by defense counsel and misuse by a court when applied to tort claims without careful consideration. Taken in conjunction with the literal definition of “foreseeable”, a defendant can claim to not be liable unless the plaintiff can prove that it was foreseeable – i.e., more likely than not, or probable – that the defendant’s conduct would result in injury to someone. Defense counsel try to persuade trial courts that this is correct and distinguish this “standard” from the clearly improper proof that “the particular injury” suffered by plaintiff was likely to occur.

The potential problem with this can be seen in two fact patterns.

A drunk driver speeds through a school zone late at 2:30 a.m. at night with his headlights off. The conduct is clearly negligent at best, and arguably reckless and wanton. But what are the odds, really, that someone is even going to be in the school zone at precisely 2:30 a.m. such that the paths of the tortfeasor and plaintiff will collide? If it is not probable, it can be argued there is no foreseeability.

A doctor performs an ERCP without proper indications for the procedure, such that it was below standard of care, i.e., negligent according to ASGE guidlines, to expose the patient to the risk of pancreatitis as an unavoidable complication of an ERCP. The defendant defends the claim by establishing that the complication rate for pancreatitis secondary to performance of an ERCP is only 2-3%. Using this fact, the defendant claims that, as a matter of law, it was not foreseeable, i.e., more likely than not, that harm would occur to the patient. “Strict construction” and application of the concept of foreseeability would require the trial court to enter judgment in favor of the defendant.
(This precise fact pattern was the subject of appeal following a jury verdict finding no proximate cause in Needham v. Gaylor in the 2nd Dist. Ct. App., reversing the judgment based on the jury instructions.)

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