Oral Argument Preview : Is Foreseeability of Injury Part of the Calculus of Duty Owed in a Medical Malpractice Case? Cromer v. Children’s Hospital.

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

Read the analysis of the oral argument in this case here.

On November 20, 2013 the Supreme Court of Ohio will hear oral argument in the case of Cromer v. Children’s Hospital Medical Center of Akron, 2012-2134.  At issue in this case is the role of foreseeability in a standard of care determination and jury instruction in a medical malpractice case.

Case Background

On January 13, 2007, five-year-old Seth Cromer was brought to the emergency room at Children’s Hospital Medical Center of Akron. Seth was being treated by his primary care physician for an ear infection, but his symptoms worsened.  Shortly after his arrival at Children’s Hospital, Seth was transferred to the pediatric intensive care unit.  The results of subsequent testing suggested Seth was experiencing difficulty oxygenating his blood.  Seth was scheduled to be intubated, however, he began showing signs of improvement and the intubation was postponed.  Later, a central line and arterial line were placed and Seth was intubated.  Approximately forty-five minutes later, Seth’s condition severely deteriorated and he went into cardiac arrest.  A code blue was called, but efforts to resuscitate Seth were unsuccessful.  Seth died the following day.

Seth’s parents filed a medical malpractice/wrongful death action against Children’s Hospital and several named defendants.The individual defendants were later dismissed from the case. Children’s Hospital is the sole defendant in this appeal.

The primary dispute in the case was the cause of Seth’s death. The Cromers’ primary allegation against the Hospital was that the doctors should have intubated Seth earlier to reduce the workload on his heart. Both the Cromers and Children’s Hospital had experts testify regarding the standard of care and the foreseeability of the doctors’ judgments to postpone intubation.

A Children’s Hospital pediatric pathologist concluded that Seth died of heart failure that was the combined result of a pre-existing narrowing of his left coronary artery and a viral infection that had spread to his heart. The Cromers’ expert opined that Seth’s death was from severe septic shock (increased acid in the blood stream as a result of poor oxidation), which the Hospital properly failed to treat, suggesting among other things that Seth should have been intubated sooner.

Over the Cromers’ objection, the trial court instructed the jury that, in determining whether the hospital met its duty of care, the jury was required to consider whether the treating professionals should have foreseen that Seth Cromer’s death was a natural and probable result of their actions or inactions. The court further instructed that if the doctors should have foreseen death, the performance of the act or failure to act was negligent.

The jury found that Children’s Hospital was not negligent. Seth’s parents appealed the jury’s determination.

The Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding that foreseeability should not have been a part of the jury’s consideration in this case and the inclusion of such instruction constituted reversible error.  The court held that the duty of a physician is established by the existence of a physician-patent relationship, not questions of foreseeability.  A breach of the physician’s duty is determined by the physician’s failure to act in accord with established norms, therefore, whether the physician foresaw the patient’s injury is irrelevant.

There was no question in this case that the hospital and its treating professionals owed a duty of care to Seth, that the existence of the hospital’s duty was imposed by law, and that the scope of its duty would be established at trial solely through expert testimony about the applicable standard of care. The Cromers were not required to prove actual foreseeability of Seth’s death, and any instruction to that effect was error.

Key Precedent

 Ohio Jury Instructions, Section 7.13 (1963); Ohio Jury Instructions, Section 401.07 (2010), which represent a consensus of Ohio jurists on commonly presented issues, instructs the jury to consider foreseeability in determining negligence.  Medical negligence instructions are found at Section 417.01

Bruni v. Tatsumi, 46 Ohio St. 2d 127 held that a medical malpractice plaintiff must put on expert evidence demonstrating the standard of care of a physician-defendant and further demonstrate departure from that standard of care.

Children’s Hospital’s Argument

Children’s Hospital argues that Seth’s doctors made a calculated weighing of the foreseeable risks and benefits in choosing when to intubate Seth.  Children’s Hospital argues that foreseeability is always a fundamental consideration for the jury in assessing negligence.  Foreseeability is not only a consideration in determining whether a duty exits, but also if that duty was breached.  Foreseeability is one of the most important factors in determining whether a defendant’s actions were reasonable given the circumstances.  Children’s Hospital states that the Ohio Jury Instructions instruct the jury on the importance of foreseeability in regard to negligence and that medical negligence standards do not supplant the jury’s ability to determine foreseeability.

Children’s Hospital argues that without first considering the natural consequences of an action, the jury is unable to determine whether the appropriate level of care was exercised under the circumstances.  Furthermore, assuming arguendo that the instruction was improper, taken as a whole, the trial court’s overall instructions on the standard of care could not have mislead the jury and the issue does not warrant reversal.

Cromers’ Argument

The Cromers argue that the trial court improperly charged the jury on the standard of care in a medical claim. They argue the court inappropriately applied general negligence principles, such as ordinary care and foreseeability, to the specific medical malpractice standard of care jury instructions.  The Cromers agree that the standard in general negligence actions incorporates foreseeability into the duty analysis by asking what is foreseeable to a reasonable person.  However, the Court’s precedent redefining the negligence standards in medical malpractice cases supplanted this inquiry of foreseeability in ordinary negligence.  To show medical malpractice a plaintiff must enlist expert testimony to demonstrate the applicable standard of care and the defendant’s deviation from that standard.

Cromer argues that Children’s Hospital is essentially claiming that the standards of medical negligence did not supplant the common law negligence test and that the two exist in parallel, which entitles the jury to both instructions.  Cromer states that the Ohio Jury Instructions specific to medical malpractice claims do not include any language regarding foreseeability.  Forseeability is used in three ways in tort law-to determine the existence of a duty (a question of law), to establish the extent of a duty (a fact question), and as a rule of limitation with proximate cause, where an event is too remote to be connected to a harmful event.  In this case the court correctly found that the existence of a duty is established by the physician-patient relationship, the extent of that duty is established by expert testimony, and proximate cause foreseeability was not at issue in the case.

Children’s Hospital’s Proposed Proposition of Law

Foreseeability is a vital and important factor for a jury to consider in determining whether a medical defendant has acted as a reasonably prudent medical provider under the same or similar circumstances. Thus, a trial court should instruct jurors in medical malpractice cases on the issue of foreseeability.

Cromer’s Proposed Counter Proposition of Law

The requirement that a medical malpractice plaintiff prove the defendant’s standard of care, and a breach thereof, with expert testimony incorporates and subsumes any inquiry into general standards of negligence, such as ordinary care and foreseeability as related to duty. As such, a jury in a medical malpractice case should not be charged with general negligence concepts such as ordinary care and foreseeability as related to duty.

Amicus Curiae

The Ohio Hospital Association, joined by the Ohio State Medical Association, and the Ohio Osteopathic Association filed an amicus brief in support of Children’s Hospital.  The Ohio Hospital Association is a non-profit trade association of Ohio hospitals aimed at developing legislation and policy in the best interest of hospitals and their communities.

The amicus echoes Children’s Hospital’s assertion that foreseeability is a fundamental principle of negligence law and must be considered by the jury in medical malpractice cases.  The amicus argues that Ninth District completely ignored foreseeability in the context of breach of duty and proximate cause and solely focused on foreseeability as it relates to the existence of duty in violation of Ohio precedent.

The Summit County Association for Justice and the Ohio Association for Justice filed separate amicus briefs in support the Cromers.  The Summit County Association for Justice is a non-profit association of attorneys dedicated to preserving and protecting the legal rights of individuals.  The Ohio Association for Justice is a state-wide   association of practicing’ personal injury and consumer law attorney in Ohio. The OAJ will share argument time with the Cromers in this case.

The amici buttress the Cromers’ assertions that the determination of a duty in medical malpractice cases presumes foreseeability.  Since a physician’s duty is determined by expert testimony, foreseeability is not a consideration for the jury but rather a matter of law for the court.

Student Contributor: Katlin Rust


This entry was posted in Ohio Supreme Court Watch, Oral Argument Preview, Student Contributors, Torts and tagged , , . Bookmark the permalink.

One Response to Oral Argument Preview : Is Foreseeability of Injury Part of the Calculus of Duty Owed in a Medical Malpractice Case? Cromer v. Children’s Hospital.

  1. Bruce whitman says:

    This is the most important case in tort law in some time. Jury instructions in tort cases, especially med mal, are very poorly drafted, ambiguous, duplicative or internally inconsistent. Now that we have tort reform we need jury instruction reform.

Leave a Reply

Your email address will not be published. Required fields are marked *