What Ohio Juries Are Told in Medical-Negligence Cases: Cromer v. Akron Children's Hospital

Published March 2, 2015 · Ohio Supreme Court

Seth Cromer was a little boy who had been treated for an ear infection earlier in the week. Late on a Saturday night in January 2007, his parents brought him to the emergency room at Akron Children's Hospital because he had become very ill. He was in shock. Doctors gave him oxygen, fluids, antibiotics, and a high dose of epinephrine to hold up his blood pressure. Around 1:10 a.m. he was moved to the pediatric intensive-care unit, where a physician placed a central line, an arterial line, and finally, at about 2:15 a.m., a breathing tube. At 3:35 a.m. his blood pressure collapsed. Seth died.

His parents sued the hospital. Their expert, a pediatric critical-care physician, testified that the treatment was correct but the timing was not: the standard of care required immediate intubation once the midnight blood tests showed severe acidosis, and the hours of delay strained Seth's heart past the point of recovery. The jury found for the hospital. The court of appeals ordered a new trial. On January 27, 2015, the Ohio Supreme Court reversed the court of appeals and let the defense verdict stand. The case is Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229.

This is a hard result for a grieving family, and I will not dress it up. But the decision is worth understanding, because it lays out, in one place, exactly what an Ohio jury is told in a medical-negligence case and where these cases are actually won and lost.

The four things every negligence plaintiff must prove

The Court began with the elements that apply to every negligence claim in Ohio, medical or otherwise: a duty requiring the defendant to meet a certain standard of conduct, a breach of that duty, a causal connection between the breach and the injury, and damages. Medical negligence uses the same four elements. The only fight in Cromer was over the first one.

In an ordinary negligence case, say a crash or a fall, the existence of a duty depends on foreseeability. We expect people to guard against the risks a reasonable person would anticipate, and we do not expect them to guard against risks no reasonable person would foresee. That is why juries in ordinary cases are often instructed on foreseeability.

Why doctors are different

The Court explained that in a medical case, the duty question is usually already answered. The relationship between a physician and a patient is one of the "legally recognized relationships" that creates a duty by itself. Once a doctor has undertaken to treat you, there is no need for the jury to decide whether you were a foreseeable victim. You were the patient. The duty exists.

What the jury does decide is whether the doctor met the standard of care, which the Court defined using its long-standing formulation: "the degree of care that a medical professional of ordinary skill, care, and diligence would exercise under similar circumstances." That standard is higher than the ordinary-person standard because it accounts for the physician's superior training and knowledge.

Foreseeability is not irrelevant to that question. Doctors are expected to recognize the symptoms a competent doctor would recognize and to appreciate the risks a competent doctor would appreciate. But in almost every real case, the Court observed, nobody disputes that the doctor knew the treatment carried some risk. The dispute is whether the doctor acted reasonably in the face of that risk. In Cromer, the hospital's physicians admitted they knew delaying intubation was risky; they said they weighed that risk against the risks of intubating too early. The question for the jury was whether their judgment was reasonable, not whether they could foresee harm.

The instruction, and why it did not change the result

The trial judge instructed the jury on foreseeability anyway. The Ninth District held that was reversible error and ordered a new trial. The Supreme Court disagreed on two levels.

First, the instruction was not legally wrong. Because foreseeability is relevant to a physician's standard of care, telling a jury about it is not a misstatement of law. Second, the instruction was unnecessary on these facts, because foreseeability was conceded, and the Court agreed that trial judges should not give instructions that do not fit the evidence. But an unnecessary instruction is not automatically reversible. The family had to show that it probably misled the jury on a matter affecting their substantial rights, and the Court found nothing in the record to show that. The jury's answers to the negligence and causation questions were consistent with each other and with the verdict. The instruction, in the Court's word, was "surplusage."

Two justices concurred only in the result, and Justice Pfeifer dissented. The case went back to the court of appeals to decide the family's remaining arguments about the weight of the evidence and their motion for a new trial, which the appellate court had not reached.

What this means in practice

When I evaluate a potential medical-negligence case for a family, the lesson of Cromer is already built into the analysis. The jury instruction on duty is not where the case will be decided. These cases turn on three things:

The standard-of-care expert. Ohio requires expert testimony to establish what a competent physician would have done and that the defendant fell short. The Cromers' expert was a qualified critical-care physician who testified clearly that the standard required immediate intubation. The hospital's experts disagreed. The jury chose. In a case about timing and judgment, the quality, credentials, and clarity of the expert are the case.

Causation. The family also had to prove that the delay, not the underlying illness, caused Seth's death. Shock is dangerous no matter how it is treated. The jury answered the causation question for the defense as well. In serious cases, I want a second expert focused solely on causation, because a jury that believes the doctor was slow may still believe the outcome would have been the same.

The record. Medical records, monitor data, nursing notes, and time stamps are what the experts work from. In Cromer the minute-by-minute timeline mattered: 10:44 p.m. triage, midnight blood gas, 12:19 a.m. results, 2:15 a.m. intubation, 3:35 a.m. arrest. Those records have to be obtained completely and early.

I have written before about related hurdles in these cases, including the apology statute, which keeps a provider's expression of sympathy out of evidence, the expert requirement for informed-consent claims, and the four-year repose deadline that can end a claim before a family knows it exists. Cromer belongs on that list as a reminder that the law gives medical defendants no special pass on duty, but gives plaintiffs no shortcut either.

Why a lawyer should see the case early

Medical-negligence cases are expensive and slow. They require affidavits of merit from qualified experts before suit can even be filed, and the one-year limitations period for malpractice is the shortest in Ohio injury law. Families often spend months grieving and waiting for answers from the hospital before they call anyone. By then, records may be incomplete and the clock is running. The time to have the case reviewed is as soon as a family suspects something went wrong, and that review costs nothing.