Court Remands Medical Malpractice Case Again. Cromer v. Children’s Hosp. Med. Ctr. of Akron.

Update: Read what happened on the final remand of the case here.

Warning! This is a wonky post.

Case Background

This is a medical malpractice case that resulted in the death of five year old Seth Cromer.

In short, after Seth had a worsening viral infection, his parents took him to the emergency room of Children’s Hospital Medical Center of Akron, where he was ultimately diagnosed as being in septic shock. In the early morning hours of his arrival, Seth was transferred to the Pediatric Intensive Care Unit, where he died from coronary failure shortly after 3:30 in the morning.

One thing was undisputed. While in the emergency room, a hospital nurse gave Seth the wrong intravenous saline solution to treat his dehydration.  The parties disagreed about the effect this had on Seth’s condition.

The Cromers’ expert opined that Seth’s death was caused by the failure to intubate him sooner, by not assessing him and giving him IV fluids sooner, and by giving him the wrong intravenous fluids. The hospital’s experts opined that a pre-existing heart condition caused Seth’s acidosis and eventual death, that he was treated appropriately, and there was nothing more that could have been done to save him.

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

Also 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.

First Appeal

In a unanimous decision written by Judge Carr, joined by Judges Dickenson and Belfance, 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 harmless because of the jury’s decision, contrary to the judge’s instruction, to answer the second, causation interrogatory. Because of its holding, the appeals court did not address the other errors on manifest weight of the evidence or failure to grant a new trial. Children’s Hospital appealed.

Supreme Court Merit Decision

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 sent back to the Ninth District to rule on the assignments of error it had deemed moot before—the weight of the evidence, and new trial motion. Read the analysis of the merit decision here.

First Remand to the Ninth District

On remand, two assignments of error remained–that the verdict was against the manifest weight of the evidence and that the trial court erred in failing to grant the Cromers’ motion for a new trial because the answers to the special interrogatories were inconsistent with one another. The appeals court majority decided to consider these two assignments of error together, finding both to be based on a manifest weight of the evidence argument, which it found dispositive.

In a 2-1 decision written by Judge Carr, joined by Judge Moore, the court found the verdict to be against the manifest weight of the evidence, and ordered a new trial. Judge Hensal dissented. In her dissent, she expressly stated that she did not agree that the verdict was against the manifest weight of the evidence. She alone also went on to address the Cromer’s other assignment of error, that a new trial should have been granted. She rejected that assignment as well, finding no inconsistency between the answers to the interrogatories and the general verdict entered in the hospital’s favor.  The opinion was issued October 26, 2016.

Children’s Hospital Cries Foul; Second Appeal to Ohio High Court Accepted

Children’s Hospital filed another appeal to the Supreme Court of Ohio, asserting in its jurisdictional memorandum that the Ninth District had improperly found the verdict to be against the manifest weight of the evidence without the unanimous agreement of all three judges on this point. Children’s Hospital asked the court to reverse the Ninth District’s decision as being contrary to Article IV, Section 3(B)(3) of the Ohio Constitution, and to re-instate the jury’s verdict in favor of Children’s Hospital. The hospital argued that there was nothing to remand, as no other issues remained on appeal, so the jury verdict should be reinstated. But the Supreme Court, while accepting the appeal, didn’t do that, exactly.

Key Precedent

Ohio Constitution Article IV Section 3(B)(3)(no judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.)

Bryan-Wollman v. Domonko, 2007-Ohio-4918 (a jury verdict reversed on appeal based on manifest weight of the evidence must be a unanimous decision of the judges. Court notes the difference between sufficiency and manifest weight challenges, finding that this case was the latter.)

Supreme Court of Ohio Remands Case to Appeals Court Again

On July 5, 2017, by a unanimous vote, the Court accepted jurisdiction over the Children’s Hospital appeal, vacated the judgment, remanded the case on the authority of Bryan-Wollman v. Domonko, and instructed the appeals court to consider “remaining issues” on remand.  (The hospital had argued there was nothing to remand). Notably, the Supreme Court of Ohio did not reinstate the jury verdict in favor of Children’s Hospital.  I’m sure the hospital will passionately argue to the appeals court that that is what must happen.  But at the appellate level, there was an assignment of error based on manifest weight, and another requesting a new trial because of inconsistent answers given to special interrogatories. On the last appeal, the Ninth District merged the two, and considered both under the manifest weight umbrella, finding it to be dispositive. If they are uncoupled, the motion for a new trial based on the inconsistent answers to the special interrogatories remains. So, it looks like more arguing ahead.

Concluding Observations

I’m still not ready to call this a win for Children’s Hospital. The appeals court can still decide that a motion for a new trial should have been granted because the answers to the special interrogatories were inconsistent with each other and the general verdict. A ruling on that basis need not be unanimous. But Judge Moore, who was with the majority the last time, retired at the end of 2016, so it depends on what a new panel decides. The lines are clearly drawn. The blog will report what happens with the next round.




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