The Ohio Supreme Court issued a decision yesterday dealing with the impact of an improper jury instruction about the standard of care in a medical malpractice case involving the death of a child. The case, Cromer v. Children’s Hosp. Med. Ctr. of Akron, involved a child (Seth Cromer) who was admitted to the hospital suffering from shock. The doctors did not intubate him immediately and asserted at trial that they weighed the risks and felt that doing so would have put him at too great a risk of cardiac arrest based on his blood pressure at the time. No one argued that they did not foresee the risks to the child in making decisions about his care.
The court gave instructions to the jury about the elements of medical negligence, and included an instruction about the whether the doctors should have foreseen Seth's death. This foreseeability instruction is usually only included in standard negligence cases. They also included an interrogatory to the jury about whether the hospital was negligent, and one about whether that negligence caused the child's death. The jury found that the hospital wasn't negligent. Because they found no negligence they did not need to answer the question about whether the negligence caused the child's death, but they did so anyway, finding the hospital's actions did not cause it.
The family argued that the court should not have included the jury instruction about whether the doctors should have foreseen the harm to their son, and that the jury misunderstood the law, claiming that the fact that they answered both interrogatories when the first one eliminated the need to answer the second one as evidence of their lack of understanding.
On appeal the Ninth District reversed the trial court, finding that the court should not have included the jury instruction about forseeability. The Ohio Supreme Court reversed the appellate court in an opinion penned by Chief Justice Maureen O'Connor. The Court addressed the basic elements of negligence, which are a duty by one person that is breached, that causes harm (damages) to another party. Generally in negligence cases the "duty" of one person to the other is established by showing that it is foreseeable to a reasonable person that whatever the person accused of negligence is doing (or not doing) could harm the other person.
The Court acknowledged that doctors have a heightened duty to their patients because of their relationship, and that in medical malpractice cases it is foreseeable that the doctors' action or inaction could harm that particular patient. The Court also found, however, that the doctors are held to a standard that requires foreseeing risks that another "medical professional of ordinary skill, care, and diligence would foresee under similar circumstances." So while it is always foreseeable that a doctor could harm their patient, the question about whether a doctor should have foreseen a particular risk to the patient is still relevant. According to the Ohio Supreme Court, this means that a jury instruction about foreseeability can generally be included in a medical malpractice case.
In the Cromer case, however, there was not any dispute about whether the doctors foresaw the risks involved with not immediately intubating Seth; the doctors had testified that they did. Because of this, the Court ruled, the jury instruction about foreseeability wasn't relevant and should not have been included. The Court found, however, that this did not mislead the jury because the instructions provided the appropriate standard of care as a whole. The Court stressed that the only evidence presented that the jury was misled was that they mistakenly answered the second interrogatory, but found that there was no connection between the improper instruction about foreseeability and the jurors answering a question that was not required.
Image By Ken Lund, via Wikimedia Commons