By Warren Enders

In a recent decision, the Supreme Court reviewed a medical negligence action that arose in Akron, Ohio.  The parents of a youngster brought him into a hospital, where he was placed in the PICU, complaining of a tender abdomen with abnormal vital signs.  He was diagnosed as suffering from shock and metabolic acidosis.  The attending physicians inserted a central venous catheter in the femoral vein, for administration of medication, an arterial catheter in the femoral artery, for monitoring, and approximately 3½ hours after presentation, intubated the boy to facilitate ventilation.  Nevertheless, shortly thereafter the child died, after going into cardiac arrest. 

Interestingly, experts for the plaintiff and for the defendant hospital agreed that the above interventions were appropriate.  However, plaintiffs’ expert opined intubation should have occurred much sooner.  On the other hand, the defense expert opined that because of his unstable condition, the benefits of earlier intubation of the child were outweighed by the risk that he would not survive the intubation process, since sedation necessary to allow intubation could cause a precipitous drop in already low blood pressure. 

At trial, a verdict was entered in favor of the hospital.  On appeal, the Court of Appeals reversed and remanded to the trial court, holding there was error in giving the jury an instruction with respect to foreseeability of harm during medical treatment.

The Ohio Supreme Court, in its decision, set out the elements of a medical negligence action as including the duty of a physician to conform to a standard of conduct, a breach of that duty, a causal connection between the breach and injury, and damages.

Here, the Court stated that in the context of an established physician-patient relationship, there would be no need for the jury to independently determine whether the patient fell within the class of people who could foreseeably be injured, because the physician’s duty to that patient was already clear.  It was also noted that in this type of action, the existence of the underlying duty depends on the foreseeability of the injury, since society expects doctors to exercise reasonable precautions against risks that a reasonably prudent physician would anticipate. 

The high court concluded that none of the parties to this lawsuit disputed that the treating physicians foresaw that there was a risk of harm associated with their choice of emergency treatment.  Thus, there was no question for the jury regarding the foreseeability of the risk of harm, as the selected chronology of treatment of the child’s shock carried with it some risk of harm.

The majority decision therefore was to reverse the judgment of the Court of Appeals and remand the case to the appellate court, also holding that inclusion of the unnecessary jury instruction, on foreseeability, constituted harmless error.

The Ohio Supreme Court noted that in most medical negligence cases, the foreseeability of risk of harm related to the disputed medical treatment is conceded, leaving no need for a jury instruction on foreseeability.  The Court parenthetically suggested that the body that formulates jury instructions should prepare a medical negligence-specific jury instruction on foreseeability, should it be necessary, that incorporates the specific standard of a reasonable medical physician under the circumstances, rather than, a reasonable lay person. 

Should you desire a full-text of the opinion, or have any questions regarding medical malpractice claims, please contact one of our Medical Malpractice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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