What Happened on Remand: End of the Road for the Cromer Family in Akron Medical Malpractice Case. Cromer v. Children’s Hosp. Med. Ctr. of Akron.

Case Background

Seth Cromer died at the age of five while a patient at the Children’s Hospital Medical Center of Akron. Seth’s parents brought him to the emergency room of the hospital on the evening of January 13, 2007 with an ear infection that worsened into a secondary infection.  He died the next day in the pediatric intensive care unit. In the medical malpractice lawsuit filed by his parents, the parties agreed that Seth died from heart failure, but the experts disagreed about whether that heart failure was caused by an unknown, pre-existing heart condition or the failure to treat the septic shock that developed from the infection.

The malpractice case was tried to a jury, which returned a general verdict in favor of the hospital. The jury was given special interrogatories to answer. In response to the first one, the jury answered that it did not find the hospital negligent. The jury was instructed that if it found the hospital was not negligent, not to answer any more interrogatories, but it did.  It also answered one which asked if the negligence was the proximate cause of Seth’s death, and answered that one “no.” 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 Cromers moved for a new trial, which was denied.

You can read about the facts in much more detail in any of the many  decisions in this case.

First Appeal to the Ninth District

The Cromers raised three assignments of error in their first appeal- the foreseeability instruction given was incorrect, the verdict was against the manifest weight of the evidence, and a new trial should have been granted because the jury’s answers to the special interrogatories were inconsistent.

In a unanimous decision, 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.

First Decision from Supreme Court of Ohio

On January 27, 2015, after the case had been pending for over a year, 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. Read an analysis of this merit decision here.

The Supreme Court remanded the case back to the Ninth District to rule on the Cromers’ assignments of error regarding the manifest weight of the evidence and the failure to grant the motion for a new trial. The appeals court had not ruled on those initially, deeming them moot in light of its now-reversed disposition of the case.

Second Decision From the Ninth District

On remand, the appeals court considered the remaining two assignments of error together—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—confining its analysis to the manifest weight argument which it found it to be dispositive. In a 2-1 decision issued on October 26, 2016, the court found the verdict to be against the manifest weight of the evidence. Read about that decision in greater detail here. The hospital appealed again.

Second Decision from the Supreme Court of Ohio

On July 5, 2017, the Supreme Court of Ohio accepted the appeal, and by entry vacated the judgment of the appeals court because a reversal of a jury verdict as being against the manifest weight of the evidence must be unanimous (and the court of appeals decision on that point was 2-1) and remanded the case to the appeals court again to consider the “remaining issues.”  Read more about that here.

Third and Final Decision From the Ninth District

Ok we are now up-to-date.  In a unanimous decision, on September 27, 2017, the Ninth District Court of Appeals affirmed the general verdict in favor of the hospital.

If you are lost, the only issue left for the Ninth District to decide was whether a new trial should have been granted because of inconsistencies in answers to the special interrogatories. As indicated earlier in this post, in response to the first interrogatory, the jury answered that it did not find the hospital negligent. But contrary to the judge’s instructions not to answer any more if the jury answered the first one with a “no,” the jury also answered one which asked if the negligence was the proximate cause of Seth’s death, and answered that one “no.” In this last remaining issue before the Ninth District in this final remand, the Cromers argued this was internally inconsistent because the jury could not logically find lack of causation for negligence it found did not happen.

The appeals court began by noting that when the trial court accepted the jury’s verdict and entered judgment for the hospital, the Cromers did not object. Thus, because they failed to object before the verdict was accepted and the jury was dismissed, they forfeited all but plain error, which is especially difficult in civil cases.

The court interpreted the answers to the special interrogatories, including the one the jury wasn’t supposed to answer, as a finding that the Cromers had failed to prove either negligence or causation, and that those answers were wholly consistent with a general verdict in favor of the hospital.  Thus, the appeals court found the Cromers had failed to show any error by the trial court, let alone plain error. So, no new trial. End of very sad story.

 

 

 

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