What’s on Their Minds: 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.

On November 20, 2013 the Supreme Court of Ohio heard oral argument in the case of Cromer v. Children’s Hospital Medical Center of Akron, 2012-2134.  At issue in this case is a challenge to a general negligence foreseeability instruction given in a medical malpractice case.

Case Background

This case involves the death of five year old Seth Cromer. Seth was being treated by the family’s doctor for an ear infection, but his symptoms worsened. He was brought to the emergency room at Children’s Hospital Medical Center of Akron. Shortly after his arrival, he 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. He could not be resuscitated and died the next day. His parents filed a medical malpractice case against a number of defendants, but ultimately, the case proceeded to trial solely against Children’s Hospital.

While the medicine is very complex, the primary point of disagreement in the case is whether Seth should have been intubated sooner, and the effect that would have had on his chances of survival. Each side presented expert testimony, which was in conflict.

Trial and Appeal

After giving the standard medical negligence jury instructions, 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 that Children’s Hospital was not negligent. Interrogatory answers were consistent with the general verdict.

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.  Read the oral argument preview of this case here.

At Oral Argument

Amicus counsel for the OAJ shared argument time with plaintiffs’ counsel.

Hospital’s Argument

A medical negligence case is the same as an ordinary negligence case, in that all the elements-duty, breach, causation, and damages–are the same. The issue in this case is whether the Court will uphold a decision that removes foreseeability from a jury’s consideration in all medical malpractice cases from now on, thereby removing one of the most long-standing and deeply rooted principles in Ohio negligence law. The appeals court held that once a duty is established through the creation of a doctor/patient relationship, the issue of foreseeability is irrelevant. That is just wrong. The foreseeability of risk and the benefit of treatment versus non-treatment permeates the expert testimony in this case.  Foreseeability was a necessary factor for the jury to consider in determining whether or not the doctors complied with or breached the standard of care.

The Hospital further argued that all jury instructions given in this case were consistent with the pattern Ohio Jury Instructions and previous opinions of the Court. Foreseeability is an important aspect of a negligence case. In this case, it goes to the issue of breach of duty.

Finally, the jury instructions, taken as a whole which the Court has always said they must be, did not prejudice the plaintiffs or lead to a verdict that was not supported by the evidence.

Cromers’ Argument

Foreseeability can enter into the analysis of a torts case in three ways-in the determination of whether a duty exists, the extent of that duty, and with the element of proximate cause.  The appeals court did not say foreseeability is irrelevant in a medical malpractice case, but rather that it is already incorporated in the standard of care analysis under Bruni v. Tatsumi. The court of appeals did say that the ordinary negligence concept of foreseeability (which Cromers’ counsel kept curiously referring to as the “lay” concept of foreseeability) had no application in a medical malpractice case, and that is correct. What happened here is that the trial judge inappropriately overlaid  a set of instructions that are for general negligence cases onto a medical negligence case.  That was both incorrect and prejudicial to the plaintiffs’ case. Expert testimony in a medical malpractice case includes what a reasonable and prudent physician would have anticipated or foreseen—both experts testified about what is foreseeable to a physician. The jury decides which expert is more credible.

Argument of Amicus OAJ

The foreseeability instruction given in this case was wrong. It adds a  fourth burden onto a plaintiff’s burden of proof. A plaintiff now will have to show the defendant should have foreseen that harm was going to result before being found liable. Foreseeability properly goes to the question of whether a duty exists- a matter of law, as Justice Cardozo noted in Palsgraf v. Long Island Railroad Co. (I couldn’t resist including this comment by amicus counsel, for the benefit of my first year torts students.) Whatever the standard of care is, a deviation from that standard is going to cause foreseeable harm. That’s enough.

What Was on Their Minds?

Unique Aspects of a Medical Negligence Case

Isn’t this different from a standard negligence case, asked Justice Lanzinger, noting that is what caused the concern over the jury instruction.

The Role of the Experts

Isn’t expert testimony required in a medical malpractice case, asked Justice O’Donnell? Were there two different standards of care identified by the experts in this case, or only one, with dueling opinions?

The Jury Instruction

Was there an objection to the foreseeability instruction, asked Justice O’Donnell? Is the issue to be decided in this case whether the foreseeability instruction ever should be given in a medical malpractice case? Who requested the foreseeability instruction and for what purpose? Were there interrogatories for each of the elements of the tort?  Were the answers consistent with the general verdict? And in a key question of the day, he asked if the foreseeability instruction was surplusage or determinative? (the parties sharply disagreed on this one). Was the instruction incorrect?

Justice Lanzinger also asked if the instruction was surplusage or erroneous and prejudicial?

Justice French asked if the defendant was asking for a bright line rule that a foreseeability instruction is always relevant in a medical claim, or just in this case? (answer: always relevant).

Were the plaintiffs saying that the Ohio Jury Instruction on foreseeability should be modified if it is going to be used in a medical  malpractice case, asked Justice Lanzinger?  (answer: no, said their counsel, they were saying it should not be given at all). In a key question of the day, she asked if the standard of care instruction for the doctor supplants the foreseeability instruction otherwise given in ordinary negligence cases? (answer from plaintiffs’ counsel: yes).

Foreseeability, Generally

Are we talking about the foreseeability of a physician or of an ordinary person, asked Justice Lanzinger?

Isn’t it the expert that needs to address foreseeability in a medical claim, asked Justice O’Donnell?

In my favorite question of the day, Justice Pfeifer asked defense counsel, what exactly is it that is supposed to be foreseen? Actually, that question crossed my mind exactly when he asked it.  And honestly, I didn’t understand the answer.  I still don’t. Later, he asked defense counsel why a jury would even need to consider whether a doctor knows every possible bad outcome?

Wasn’t the reality in this case the question of foreseeability from the time Seth entered the hospital– foreseeability of acting or not acting; and aren’t those judgment calls that the doctors make that the jury must evaluate–did the doctors make the right judgment call in the risk versus benefit calculus, asked Justice O’Neill?

Isn’t the foreseeability of the harm part of the balancing of the equation that a physician enters into when determining the treatment, asked Chief Justice O’Connor? With this child’s presenting problems  should these doctors have foreseen that the course of conduct they chose would result in irreparable harm to the child?

And in a key exchange of the day with amicus counsel, O’Connor mused, if you deviate from the standard of care it doesn’t matter whether you know what the consequences of that that deviation will bring about, it still makes you liable? (I think that nails it.) Then she asked defense counsel if he would agree that if there is a breach in the standard of care, and there is resulting damage, it doesn’t matter that the physician foresaw that damage, it is enough that the doctor  breached the standard of care? (He stayed on message, arguing that part and parcel of whether there was a breach of the standard of care is whether there was foreseeability of the risk of injury).

The Court of Appeals Decision

Justice O’Neill went mildly ballistic about the appellate court’s use of the word “irrelevant” in a medical malpractice foreseeability jury charge.  He returned to this over and over, commenting that he was having difficulty separating foreseeability and standard of care. He asked plaintiffs’ counsel how the appeals court could possibly say that “evidence that the physician could have foreseen the patient’s injury is irrelevant?”  (answer: the lay concept of foreseeability is irrelevant in a medical malpractice case.)


How did the foreseeability instruction negatively impact the jury’s capacity to render a fair verdict, asked Chief Justice O’Connor?

How could the Court tell if the instruction was determinative or harmless, asked Justice O’Donnell?

The Medicine

There was a lot of discussion about this, in particular from Chief Justice O’Connor, who seemed intent on demonstrating that she “got” the medical issues in the case.  I’m not sure any of these questions or answers made any difference in this argument.  The Chief went into a lot of detail about the timing and sequencing of placing the central and the arterial lines, and the intubation. She talked about the narrowing of Seth’s left coronary artery and the role that might have played in his death. Did the plaintiffs’ expert think that played any role? She asked if the crux of the case was the timing of the intubation.

How it Looks from the Bleachers

To Professor Bettman

I sure hope it’s a win for the Cromers. I feel quite strongly about this case, both as a torts professor and as a former plaintiff’s medical malpractice lawyer.  To me, honestly, the defense argument made absolutely no sense. I never understood exactly what was to be foreseen, as Justice Pfeifer asked early on.

First, my observations as a professor. Foreseeability has two key roles in a tort claim.  First and foremost, it is one of several factors a judge uses to determine if a duty exists if there is a legitimate debate on that point. Where there is a debate about whether there is any duty at all, that is a policy determination.  (Example—do gun manufacturers owe a duty to the victims of gun violence?)  In the vast majority of cases, there is no debate about whether there is a duty owing, and there was none in this case.  In any medical malpractice case a doctor has a duty to his or her patient to adhere to the standard of care.  That’s unquestioned. There is no need to use foreseeability to determine the duty question.  So, I agree with the court of appeals that foreseeability is incorporated into the duty of care in a malpractice case.  (The second major role of foreseeability is as a rule of limitation with the proximate cause element, which is not at issue here.)

As a former practitioner, what happened with these jury instructions was a nightmarish thing—a trial judge decided to superimpose  general negligence instructions on top of those specifically tailored to malpractice—to smoosh them all together.  Justice Lanzinger got this immediately in this case. A trial judge is supposed to carefully sort out the instructions that do apply from those that don’t.  These general negligence instructions had no place in this case.  To me, they could not be harmless error—they were too confusing.  I still don’t understand what was supposed to have been foreseen here.

And with all due respect to Justice O’Neill—who as a former pediatric emergency room nurse probably understood the medicine in this case better than anyone—I think he is wrong about the appellate court decision. Foreseeability is irrelevant here.  Here’s what the appeals court actually said:

“[P]hysicians are said to owe patients a legal duty to use recognized standards of professional knowledge and skill.” Ryne v. Garvey, 87 Ohio App.3d 145, 155 (2d Dist.1993). A plaintiff proves a breach of duty by showing that the physician failed to act in accordance with those established norms. Id. Consequently, evidence that the physician could have foreseen the patient’s injury is irrelevant because “[f]oreseeability is not determinative of a physician’s legal duties.” Id. at 154-155…In this case, the Cromers’ only allegations of medical malpractice by the hospital pertained directly to the quality of medical treatment that Seth received while a patient there.

“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 by the treating professionals in this case. Therefore, instructing the jury to that effect was an incorrect statement of law and constituted reversible error.”

To my mind, that is exactly right.  And I think a majority of the justices—especially Pfeifer, Lanzinger, O’Connor, and O’Donnell think so too.  So I am calling this one for the Cromers.

To Student Contributor Katlin Rust

This was definitely an interesting – and nuanced – case.  In essence, both sides agree that foreseeability matters; where they differ is on when and how it is relevant.  Children’s Hospital did a nice job of laying its side on the table, but defense counsel received quite a few questions on the relationship between foreseeability and experts.  It took awhile, but I think the Cromers were finally able to articulate exactly why they believe the trial court erred, and that the Ninth District’s opinion really wasn’t all that extreme.

Although I’m not certain this one is going to be a sweeping victory, I do believe it will go to the Cromers.  Foreseeability is not, by any means, completely out the window.  But, the Court needs to clear up the role of foreseeability and expressly state when, and in what context, it matters.  I believe they will reaffirm their holding in Bruni (which requires the standard of care to be proven by experts), thereby taking the determination of foreseeability in the standard of care and the extent of duty away from the jury.  However, I believe the Court will conclude that foreseeability is still a relevant determination for the jury in terms of proximate cause.  The question really becomes whether the trial court’s inclusion of ordinary negligence standards, immediately after the medial negligence standards, misled the jury.  The issue is whether the instruction was erroneous surplus.

Admittedly, the language used by the Ninth District was severe.  Justice O’Neill was very much up in arms over the Ninth districts use of “irrelevant” to describe the determination of foreseeability.  I expect the Court to temper this language in its opinion.







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One Response to What’s on Their Minds: Is Foreseeability of Injury Part of the Calculus of Duty Owed in a Medical Malpractice Case? Cromer v. Children’s Hospital.

  1. How It Looks From the Real Cheap Seats:

    Unfortunately, tort law analysis might have been at the fore during oral arguments, but such does not necessarily lead to the “proper” result from this Court. The position of the OSMA and OHA amici almost perfectly portends the outcome, as demonstrated by this Court’s decisions over more than a decade. If you want to see an illiustrative example of that look, not at Cromer, but at Comer. The decision is based on defective analysis and rationale that any tort class law student should be able to identify. This Court may engage in the intellectual give and take over tort concepts during oral arguments, but has not been constrained by them in deciding who wins.

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