Merit Decision: Foreseeability Jury instruction in Medical Negligence Case Superfluous but not Materially Prejudicial. Cromer v. Children’s Hosp. Med. Ctr. of Akron.

Update: On July 5, 2017, the Supreme Court of Ohio again accepted an appeal of this case, and again remanded it back to the Ninth District.  Read more about that here.

Read what happened on remand in this case here.

On January 27, 2015, the Supreme Court of Ohio handed down a merit decision in Cromer v. Children’s Hosp. Med. Ctr. of Akron,  2015-Ohio-229. In a fractured opinion written by Chief Justice O’Connor, in which Justices O’Donnell and Kennedy concurred in judgment only and Justice Pfeifer dissented, the court held that the foreseeability instruction given in this medical negligence case should not have been given, but was not prejudicial error, and reversed the court of appeals on this point. The case was argued November 20, 2013 (no, that is not a typo).

As I had written on the blog, this case had been pending for over a year. That usually suggests either a deep division on the court, or an opinion that just won’t write. Here’s what I wrote about the long delay:

“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.”

So now, I’ll try and sort this out.

Case Background

Five year old Seth Cromer had been treated by his family doctor for an ear infection. Later that week he became very ill, and on January 13, 2007, his parents took him to the hospital’s emergency room. He was diagnosed as being in shock.  In the early morning hours of January 14, Seth was transferred to the Pediatric Intensive Care Unit, where he died shortly after 3:30 in the morning.

While the medicine in the case is very complex and is detailed in the court’s opinion, the plaintiffs’ expert did not find fault with the interventions and treatment in the emergency room or in the Pediatric Intensive Care Unit. The primary point of disagreement in the case was whether Seth should have been intubated sooner, and the effect that would have had on his chance of survival. The plaintiffs’ expert opined that immediate intubation should have been done upon discovery of evidence of severe metabolic and respiratory acidosis. The defense experts opined that immediate intubation was too risky, given Seth’s precarious condition at the time, and that the doctors involved had properly weighed the risks and benefits in deciding on a treatment protocol.

Jury Instructions

After giving the standard medical negligence jury instructions, at the request of the hospital, and over the Cromers’ objection, the trial court also gave the general negligence instruction on foreseeability.  That instruction asked the jury to determine whether the hospital employees should have foreseen that Seth’s death was a likely result of their actions or failure to act.

Jury Interrogatories

Pertinent to this case was an interrogatory asking whether the hospital had been negligent, and another asking if the negligence was the proximate cause of Seth’s death.  The trial court told the jury that if the answer to the first interrogatory was “no,” deliberations were complete.  Instead, the jury answered “no” to both interrogatories. After finding the answers consistent, and receiving no objection from counsel, the court entered judgment on the jury’s verdict in the hospital’s favor.


The Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding both that the foreseeability instruction was incorrect because it was irrelevant to determining the standard of care of a medical professional, and that the error was not made harmless because of the jury’s decision, contrary to what the judge had told them, to answer the second, causation interrogatory. Because of its holding, the appeals court did not address other errors on manifest weight of the evidence or failure to grant a new trial. Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (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.)

Branch v. Cleveland Clinic Found., 2012-Ohio-5345 (In the more common line of medical malpractice cases, the pertinent question is whether the medical professional acted unreasonably in the face of a risk of harm, not whether that harm was foreseeable.)

Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307 (1995) (A trial court is obligated to provide jury instructions that correctly and completely state the law.)

Estate of Hall v. Akron Gen. Med. Ctr., 2010-Ohio-1041. (Jury instructions must be warranted by the evidence presented in a case. The question of whether a jury instruction is legally correct and factually warranted is subject to de novo review.)

Masci v. Keller, 18 Ohio St.2d 67 (1969) (Even if an instruction is related to facts in the evidence, an instruction that draws attention to irrelevant issues may be objectionable.)

Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202 (1990) (A trial court should limit its instruction to the jury to matters actually raised in the pleadings and in the evidence at trial. However, an unnecessary, ambiguous, or even affirmatively erroneous portion of a jury charge does not inevitably constitute reversible error. In examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and “must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party’s substantial rights.”)

Centrello v. Basky, 164 Ohio St. 41 (1955) (If the complete set of instructions by the trial court otherwise fairly and correctly lays out the relevant law, and if it is apparent in the context of the complete instructions that an isolated error did not prejudice a party’s substantial rights, reversal on such error is not warranted.)

Hayward v. Summa Health Sys./Akron City Hosp., 2014-Ohio-1913 (The general rule in medical malpractice cases is that an erroneous instruction does not necessarily mislead a jury. In order to demonstrate reversible error, there must be a connection between the allegedly erroneous jury instruction and the alleged evidence of juror confusion.)

Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268 (1985) (In determining whether an erroneous instruction will render a verdict invalid, the question is whether the instruction itself was so misleading that it could have directly induced an erroneous verdict.)

Merit Decision

Executive Summary of the Three Positions


The foreseeability instruction should not have been given in this case, because it was not justified by the evidence, but it was not materially prejudicial. Court of Appeals should not have disturbed the jury verdict and should be reversed.

Separate Concurrence

The foreseeability instruction was erroneous, but there was no need to decide when a foreseeability instruction might be appropriate to the standard of care for a medical professional.  Further, the court of appeals court did not properly consider whether the instructions, taken as a whole, probably mislead the jury, and the case should be sent back to the appeals court to make that determination.


The issue of whether the jury instruction was prejudicial was not before the court. The court expressly refused to exercise jurisdiction over that issue. The instruction given in the case was both wrong and prejudicial. Court of Appeals should be affirmed.

Foreseeability Generally in a Medical Negligence Claim

Only the issue of duty is at issue in this case.  Foreseeability is a factor in determining whether a duty exists, when there is a dispute about that. In the context of a doctor-patient relationship, there is no dispute about whether there is a duty.  There is. That’s a given. The court of appeals was correct in determining that foreseeability is irrelevant to the determination of a physician’s duty. But to the majority, that doesn’t end the inquiry.

How does foreseeability fit into a medical claim? It is well established that the standard of care for medical professionals is measured against other medical professionals under the same or similar circumstances.  So giving a foreseeability instruction in a medical negligence action is not per se incorrect, and the appeals court was wrong in finding that it was.

Jury Instruction in this Case

The reason foreseeability isn’t usually relevant in a medical claim is that it is almost always factually undisputed that a risk of harm is foreseeable.  Most cases turn on whether the medical professional involved appropriately recognized and treated that risk.  In this case the doctors weren’t accused of failing to foresee the risk associated with their chosen course of treatment, but rather whether the course of treatment chosen was reasonable in light of the risks. Jury instructions should be limited to matters raised at the trial. In this case the foreseeability instruction was unnecessary in light of the facts presented.  But was it prejudicial?

The Prejudice Prong

An erroneous jury instruction is not necessarily prejudicial.  In deciding if it was, the entire instruction must be evaluated.  Here, the trial judge took the foreseeability instruction from the general negligence jury instructions.

The appeals court found error not in the wording of the foreseeability instruction, but in including it at all. That court erroneously presumed the error was prejudicial instead of determining on the face of the record that the instruction prejudiced the Cromer’s substantial rights.  Yes, the jury answered the causation interrogatory when it should not have.  But the answer to that was consistent with the answer to the negligence interrogatory, and both were consistent with the general verdict. Thus, the conclusion to be drawn from the record presented was that the instruction was surplusage, and unnecessary, but not demonstrably prejudicial.


Even though the general foreseeability instruction should not have been given, prejudice wasn’t shown, so the verdict (which in case you have lost track, was for the defense) should not have been disturbed. But the case was sent back to the appeals court to rule on the assignments of error deemed moot before—the weight of the evidence, and new trial motion.

Justice O’Donnell’s Concurrence

Justice O’Donnell concurred in judgment only, and wrote separately, joined by Justice Kennedy.

Justice O’Donnell defines the issues thusly:

“First, whether the trial court in this medical malpractice action erred in instructing the jury on the concept of foreseeability applicable to an ordinary negligence claim, and second, whether that instruction probably misled the jury and resulted in an erroneous verdict.”

Unlike the lead opinion, O’Donnell sees the giving of the foreseeability instruction as more than just surplusage—he sees it as erroneous, both because foreseeability of harm to Seth was not an issue in the case, and because the instruction fundamentally misstated the standard of care in a medical claim.  The instruction on foreseeability was a general negligence instruction, instead of the standard of care for licensed professionals set forth in Bruni and progeny. He also faulted the trial court for linking foreseeability with probability.

“Although the reasonable person in an ordinary negligence case may be required to anticipate only those injuries that are likely to result from a course of conduct, a doctor is charged with possessing the specialized knowledge and experience of the medical profession and therefore is required to anticipate diagnoses that may be unlikely or rare, “ O’Donnell wrote.

So, O’Donnell would find the jury instruction erroneous, and would stop there, faulting the majority for providing “an advisory opinion speculating on when an instruction on foreseeability might be appropriate in charging the jury on the standard of care for medical professionals.”

As to the prejudice prong, unlike the majority, which faulted the appeals court for presuming the error was prejudicial, his reading was that the appeals court viewed the erroneous error in isolation and failed to consider whether the instruction taken as a whole misled the jury. He thus agreed with the majority that the appeals court should be reversed, but he would remand the case to the appeals court for a determination of whether the instruction taken as a whole probably misled the jury.

Justice Pfeifer’s Dissent

Justice Pfeifer describes the majority opinion as a “sole, unremarkable holding…that the appellate court did not do enough to show that the jury instructions it correctly held were erroneous were prejudicial. ” Pfeifer noted the court had only accepted jurisdiction over the proposition of law dealing with whether the jury instruction given on foreseeability was correct, and had declined to accept jurisdiction over the prejudice issue. For that reason, the court of appeals—which found the instruction wrong—should have been affirmed.  But he went on to find that even if the subject of prejudice had properly been before the court, the foreseeability instruction was prejudicial because the faulty jury instruction on negligence compromised the jury’s finding on proximate cause. He would also find the instruction prejudicial on its face:

“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 wrote.

Finally, Pfeifer chided the court for a pattern of simple error correction in medical negligence cases, in which verdicts for the defendants were reversed by appeals courts, citing to Branch v. Cleveland Clinic Found., 2012-Ohio-5345, and Hayward v. Summa Health Sys./Akron City Hosp. 2014-Ohio-1913.  You can read about the merit decisions in those cases here and here.

Case Syllabus

  1. 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.
  2. In the context of an established physician-patient relationship, consideration of foreseeability is unnecessary to the determination whether the patient is someone to whom the physician owes a duty of care.
  3. A jury instruction on a general rule of law, even if correct, should not be given if the instruction is not applicable to the evidence presented.

Concluding Observations

It was clear at oral argument the justices were having trouble with the hospital’s argument on foreseeability.  Several justices asked if the foreseeability instruction was surplusage or prejudicial.  The Chief cut to the chase, as she often does, when she asked defense counsel,  “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?” And Justice Pfeifer asked what exactly was it that was supposed to have been foreseen?

I don’t think the court ever should have taken this case, or else should  have limited its holding to the fact that the general negligence instruction given in the case on foreseeability was just plain wrong. Shame on the trial judge for getting talked into giving it. The case adds nothing whatsoever to the law of medical negligence, and the case syllabus really adds nothing new.  The court’s attempted explanation of the role of foreseeability in medical negligence cases got bogged down, understandably so, because it really had no place in this case, and the hospital’s argument on foreseeability made little sense.

I confess that I still have a plaintiff’s heart in these cases, and tend to agree with Justice Pfeifer that the last several medical malpractice cases the court has accepted have seemed like simple error correction.  Even though I incorrectly called this for the Cromers, I really don’t think the hospital won anything legally significant in this case. In fact, when push came to shove, all seven justices agreed that the foreseeability instruction given in this case should not have been, which is scarcely a win for the hospital. And the majority split on whether this was a per se reversal of the appeals court, or should be sent back for further consideration.  In fact, in the conclusion the Chief wrote, “[H]owever, in most medical-negligence cases, including this one, the foreseeability of a risk of harm related to the medical treatment is conceded, leaving no need for a jury instruction on foreseeability.” My sentiments exactly.

The Chief also suggested in the opinion that OJI (the Ohio Jury Instructions) include a medical-specific jury instruction on foreseeability. Looking at this case, I’m not sure that would be so easy to write.

I’m still not willing to call a loss for the Cromers.  I think they have a chance on their yet undecided assignments of error when the case goes back to the appeals court on those issues.



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