Medical Malpractice: Supreme Court of Ohio Divided on Foreseeability

Posted on January 28th, 2015 by sutteroconnell

A divided Supreme Court of Ohio announced yesterday its opinion in the case of Cromer v. Children’s Hospital Medical Center of Akron.  Chief Justice O’Connor authored the majority’s decision, reversing the judgment of the Ninth District Court of Appeals and remanding the case back to the court of appeals for further consideration of the other assigned errors.

The case stems from the death of a minor child in the hospital’s pediatric intensive care unit, after the child had been treated earlier in the week for an ear infection.  At issue on appeal was a jury instruction the hospital had requested, and the trial court agreed to provide, on the foreseeability of harm.  Specifically, the instruction given to the jury read:

In deciding whether ordinary care was used, you will consider whether the defendant should have foreseen under the attending circumstances that the natural and probable result of an act or failure to act would cause Seth Cromer’s death.

The test for foreseeability is not whether the defendant should have foreseen the death of Seth Cromer precisely as it happened.  The test is whether under all the circumstances a reasonably cautious, careful, prudent person would have anticipated that death was likely to result to someone from the act or failure to act.

If the defendant by the use of ordinary care should have foreseen the death and should not have acted, or if they did act, should have taken precautions to avoid the result, the performance of the act or the failure to act to take such precautions is negligence.

The jury returned its verdict in favor of the hospital, and the Cromers appealed.  The Ninth District vacated the jury’s verdict and remanded for a new trial, finding that foreseeability was irrelevant to a determination of a medical professional’s standard of care. The Supreme Court of Ohio accepted jurisdiction as a matter of public or great general interest, and considered the appropriateness of including a foreseeability instruction in the context of medical negligence cases and the factual propriety of the above instruction in this instance.

The Supreme Court held that foreseeability is irrelevant to a determination of a physician’s duty because, when you have an established physician-patient relationship the physician’s duty to that patient is already clear.  However, the scope of that duty owed includes the expectation that physicians will exercise the degree of care that is reasonable in light of the physician’s superior training and knowledge. As the Court stated, “just as with the general negligence standard, it necessarily follows that we would not expect medical professionals to guard against a risk of harm that a medical professional of ordinary skill, care, and diligence would not foresee.”  Therefore, foreseeability of harm is relevant to a physician’s standard of care, and a general statement of the law regarding the standard of care or the breach of that standard includes the element of foreseeability.

Under the particular facts of this case, the Supreme Court determined that there was no question for the jury in this case regarding the foreseeability of the risk of harm.  The treating physicians were not accused of failing to foresee the risks associated with the procedures performed on the child, or the timing of those procedures, and the medical professionals themselves admitted to having knowledge of these risks and weighing them against other precautionary measures.  Thus, the instruction on foreseeability was not necessary.

The Supreme Court ultimately found no material prejudice as a result of giving the unnecessary instruction here and reversed the Ninth District’s decision.

Justices Lanzinger, French and O’Neill concurred in the decision; Justices O’Donnell and Kennedy concurred in judgment only, and Justice Pfeiffer dissented.  Justices O’Donnell and Pfeifer authored separate decisions.

The full text of the Supreme Court of Ohio’s decision, including the separately authored concurring and dissenting opinions can be found here.