Cromer v. Children's Hosp. Med. Ctr. of Akron (Slip Opinion) , 142 Ohio St. 3d 257 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cromer v. Children’s Hosp. Med. Ctr. of Akron, Slip Opinion No. 2015-Ohio-229.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-229CROMER ET AL., APPELLEES, v. CHILDREN’S HOSPITAL MEDICAL CENTER OF
AKRON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cromer v. Children’s Hosp. Med. Ctr. of Akron,
Slip Opinion No. 2015-Ohio-229.]
Medical malpractice—Standard of care—Foreseeability of harm is generally
relevant to determining whether physician exercised reasonable care—In
context of established physician-patient relationship, foreseeability of
harm is not necessary consideration in determining whether physician
owes patient duty of care—Jury instruction on foreseeability of harm
unnecessary when parties do not dispute that physician understood risk of
harm.
(No. 2012-2134—Submitted November 20, 2013—Decided January 27, 2015.)
APPEAL from the Court of Appeals for Summit County,
No. 25632, 2012-Ohio-5154.
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SYLLABUS OF THE COURT
1. Foreseeability of harm is relevant to a physician’s standard of care, and a
correct, general statement of the law regarding the standard of care or the
breach of that standard includes the element of foreseeability.
2. In the context of an established physician-patient relationship, consideration of
foreseeability is unnecessary to the determination whether the patient is
someone to whom the physician owes a duty of care.
3. A jury instruction on a general rule of law, even if correct, should not be given
if the instruction is not applicable to the evidence presented.
_____________________
O’CONNOR, C.J.
{¶ 1} In this appeal, we are asked to consider the role of foreseeability as
an element of medical negligence. Specifically, we are asked to determine
whether foreseeability of the risk of harm is a factor that must always be
considered when determining a medical professional’s duties or if it is an
irrelevant factor that may never be considered when determining a medical
professional’s duties. We hold that it is neither.
{¶ 2} Foreseeability is generally relevant to a determination of whether a
physician has exercised reasonable care in understanding or determining the
existence of a risk of harm associated with a particular course of treatment. But
when the parties do not dispute that a physician conducted a risk-benefit analysis
prior to treating a patient and do not dispute that the physician understood that the
chosen course of treatment carried some risk of harm, a jury instruction regarding
the foreseeability of harm need not be given. However, the instruction would not
be patently prejudicial, and the judgment is not subject to reversal absent a
showing of material prejudice.
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{¶ 3} Under the facts of this case, the trial court’s decision to provide a
superfluous instruction to the jury on foreseeability was not prejudicial error. We
therefore reverse the judgment of the court of appeals.
RELEVANT BACKGROUND
{¶ 4} This medical-negligence action arose from the death of Seth Niles
Cromer at the pediatric intensive-care unit (“PICU”) of Children’s Hospital
Medical Center of Akron. Melinda Cromer, Seth’s mother, and Roderick Cromer
Jr., Seth’s father, individually and as administrator, brought an action against the
hospital, alleging that Seth’s death was caused by the combined and individual
negligence of multiple hospital employees.
The Treatment Provided
{¶ 5} Much of the evidence was disputed at trial. But it was shown that
Seth’s parents took him to the hospital’s emergency room at approximately 10:44
p.m. on Saturday, January 13, 2007, after Seth, who had been treated earlier in the
week for an ear infection, became very ill. At triage, Seth’s symptoms and vital
signs included an elevated pulse and rate of respiration, a tender abdomen with
pressure, pale skin, normal temperature, and normal blood pressure. Seth’s
condition was assessed as urgent, and upon further examination by emergency-
room doctors, Seth was diagnosed as suffering from shock. At approximately
11:30 p.m., the attending emergency-room physician, Brett Luxmore, D.O.,
ordered the administration of oxygen therapy, intravenous fluids, and intravenous
antibiotics. Because Seth’s blood pressure had lowered and was unstable by the
time Dr. Luxmore assessed him, Dr. Luxmore also ordered the administration of
epinephrine in an attempt to raise the blood pressure.
{¶ 6} Initial blood tests, taken at midnight, indicated that Seth was
suffering from metabolic acidosis, which means that his blood was not delivering
adequate oxygen to his tissues. But he was not suffering from respiratory
acidosis, which would have meant that his blood was accumulating carbon
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dioxide. Around 12:30 a.m. on January 14, 2007, the amount of oxygen in Seth’s
blood rose to a normal level. His blood pressure improved as well, albeit due to
the continuous administration of a high dose of epinephrine.
{¶ 7} While Seth was being transferred from the emergency room to
PICU around 1:10 a.m., his condition worsened. It was later discovered that the
carbon-dioxide levels in Seth’s blood had begun to rise. The attending PICU
physician, Richard Wendorf, M.D., (1) inserted a central-venous-access catheter
in Seth’s femoral vein for the instant administration of medication and fluids as
well as for rapid assessment of blood-gas levels and fluid balance, (2) inserted an
arterial catheter in Seth’s femoral artery for continuous real-time monitoring of
blood pressure, and then (3) inserted a tube into Seth’s trachea to decrease the
heart’s burden and facilitate ventilation. Dr. Wendorf completed these procedures
by 1:46 a.m., 2:00 a.m., and 2:15 a.m., respectively. Seth’s condition improved
until approximately 3:35 a.m., at which point his blood pressure dropped
precipitously and he went into cardiac arrest. Seth died soon after.
The Cromers’ Expert Testimony
{¶ 8} The Cromers’ expert, Margaret Parker, M.D., agreed that the
interventions and treatment that the emergency-room and PICU physicians had
ordered were appropriate. However, she did not agree that the timing of the
interventions and treatment, particularly intubation, was appropriate.
{¶ 9} Dr. Parker testified that the longer shock is allowed to progress, the
harder the strain on the heart, and the harder it is to reverse the problem. Dr.
Parker explained that intubation helps to increase blood oxygenation, decrease
carbon dioxide levels, and decrease the energy spent on breathing. Dr. Parker
testified that the standard of care for medical professionals would mandate
immediate intubation upon discovering evidence of severe metabolic and
respiratory acidosis. Dr. Parker opined that Seth’s respiratory rate of 31 breaths
per minute and the blood-test results delivered at 12:19 a.m. were clear evidence
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of severe metabolic and respiratory acidosis. Dr. Parker concluded that the
hospital employees deviated from the standard of care by not intubating Seth until
two hours later.
{¶ 10} Specifically, Dr. Parker testified that Dr. Luxmore breached the
standard of care by not intubating Seth in the emergency room by 12:30 a.m. and
that Dr. Wendorf breached the standard of care by not intubating Seth
immediately upon his arrival at the PICU. However, Dr. Parker later testified that
Dr. Wendorf’s decision to place a central venous line prior to intubation was
within the standard of care. Dr. Parker also agreed that both doctors considered
the risks of both immediate and delayed intubation prior to deciding to implement
their particular courses of action. But she disagreed that the doctors appropriately
weighed the risks and benefits and disagreed that their clinical judgments
regarding the timing of intubation were reasonable.
The Hospital’s Expert Testimony
{¶ 11} Dr. Luxmore acknowledged that shock is a life-threatening
condition that can lead to death if not properly treated. Dr. Luxmore testified that
although intubation could decrease the levels of carbon dioxide in the blood and
decrease the strain on a patient’s heart, that benefit must be weighed against the
risk of causing a sudden drop in blood pressure and cardiac arrest. Because
Seth’s blood pressure was tenuous but he otherwise had a stable airway and his
circulatory system was not building up carbon dioxide while he was in the
emergency room, Dr. Luxmore decided that the benefit of intubation at that time
was outweighed by the risk that Seth would not survive the process of intubation.
{¶ 12} One of the hospital’s experts, Robert Kennedy, M.D., explained
that the sedation required to intubate a patient could cause blood pressure to
bottom out completely. Dr. Kennedy testified that although intubation would be
important in the long run to decrease the strain on the patient, other measures to
stabilize the patient take priority in the emergency department if the patient is able
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to breathe. Dr. Kennedy opined that Dr. Luxmore complied with the standard of
care when he decided not to intubate Seth in the emergency department given that
Seth’s blood circulation required intervention and his carbon-dioxide levels were
normal.
{¶ 13} Dr. Wendorf testified that he knew right away that he was going to
intubate Seth due to the risk that Seth’s condition would worsen, but that
immediate intubation without taking certain precautions would have been
unnecessarily risky in light of Seth’s precarious condition. Another expert,
Douglas Wilson, M.D., testified that the importance of relieving the strain on a
patient’s cardiovascular system must be weighed against the risk of inducing
cardiac arrest. Dr. Wilson opined that Dr. Wendorf understood the risks and
benefits involved and weighed them appropriately in reaching his decision on the
sequence of placing catheters and intubating Seth.
The Jury Instructions
{¶ 14} After the close of evidence, the parties discussed their proposed
jury instructions with the court. Many of the parties’ proposed instructions
incorporated standard language from the Ohio Jury Instructions outlining the
elements of medical negligence and applicable standard of care. However, the
hospital also requested an instruction on the foreseeability of harm using language
from the general negligence provisions of the Ohio Jury Instructions.
{¶ 15} The Cromers objected to the instruction, arguing that an instruction
to the jury on foreseeability is required only in a regular negligence claim and is
not part of the Ohio Jury Instructions for medical negligence. The Cromers
further argued that the instruction was not supported by the evidence, because
there was no testimony that the doctors did not know that the failure to
appropriately treat a patient in shock could lead to death. The trial court
ultimately instructed the jury on the elements of negligence as they applied to the
hospital and its employees and gave an instruction on foreseeability that asked the
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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.
The Verdict
{¶ 16} At the end of its charge, the trial court provided general verdict
forms and multiple interrogatories to the jury. The first interrogatory asked
whether the hospital had been negligent. Another interrogatory asked whether the
hospital’s negligence was a direct and proximate cause of Seth Cromer’s death.
The trial court explained that if the jury’s answer to the first interrogatory was
“no,” then its deliberations were complete.
{¶ 17} After the jury completed its deliberations, the trial court reviewed
the forms and noted that the jury had answered “no” on both the negligence and
causation interrogatories. The trial court stated that although it would not have
been necessary to complete the interrogatory on proximate causation, the jury’s
answer was consistent with the interrogatory on negligence. The trial court polled
the jury, provided the interrogatories to counsel, and upon receiving no objection,
excused the jury. The trial court accordingly entered judgment in favor of
Children’s Hospital.
The Posttrial Proceedings
{¶ 18} The Cromers moved for a new trial, arguing that the verdict was
against the manifest weight of the evidence and that the interrogatories finding
both no negligence and no causation were in conflict. They also claimed that
there were multiple errors in the jury instructions, and that the jury’s completion
of the causation interrogatory constituted a clear sign that the erroneous
instructions led the jury to an improper application of the law. The trial court
denied the motion, stating that although the jury did not follow the court’s
instruction that deliberations would be complete upon a finding that negligence
was not shown, the interrogatories were consistent with one another and with the
general verdict.
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{¶ 19} The Cromers appealed, arguing that the trial court committed
reversible error by including an instruction on foreseeability when it instructed the
jury on the hospital’s standard of care. The Cromers additionally argued that the
verdict was against the manifest weight of the evidence and that the trial court had
erroneously denied their motion for a new trial. And as primary support for their
arguments, the Cromers pointed to the jury’s unnecessary completion of the
causation interrogatory as confirmation that the jury had misunderstood the law
and applied the instructions in a way that led to an erroneous result. The Cromers
further contended that the fact that the jury found no causation did not render
harmless any error in its finding regarding negligence, because once the jury had
determined that there was no negligence, a finding of no causation was a logical
impossibility. The appellate court found merit in the Cromers’ jury-instruction
argument and reversed.
{¶ 20} Central to the appellate court’s holding was its determination that
the question of foreseeability of harm was irrelevant to a determination of a
medical professional’s standard of care. 2012-Ohio-5154, 985 N.E.2d 548, ¶ 27.
Specifically, the court held that a physician’s duty is established by the physician-
patient relationship alone with no consideration of foreseeability. Id. at ¶ 24. The
court concluded that the trial court’s instruction on the foreseeability of the risk of
harm during medical treatment constituted an incorrect statement of law that
required reversal. Id. Finally, the appellate court stated that it could not conclude
that the error was rendered harmless by the jury’s decision to answer the
interrogatory on causation. Id. at ¶ 25. Accordingly, the court held that reversal
and a remand for a new trial were required. Because the appellate court’s holding
disposed of the appeal, the Cromers’ remaining arguments were rendered moot
and were not addressed.
{¶ 21} The cause is now before this court upon our acceptance of a
discretionary appeal to determine the propriety of including a foreseeability
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instruction when instructing a jury on the standard of care for medical
professionals. 134 Ohio St.3d 1484, 2013-Ohio-902, 984 N.E.2d 28.
ANALYSIS
Standard of Review
{¶ 22} A trial court is obligated to provide jury instructions that correctly
and completely state the law. Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307,
312, 649 N.E.2d 1219 (1995). The jury instructions must also be warranted by
the evidence presented in a case. Estate of Hall v. Akron Gen. Med. Ctr., 125
Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d 1112, ¶ 26. The question of
whether a jury instruction is legally correct and factually warranted is subject to
de novo review. Id. We begin our de novo review by examining whether a
correct statement of the law regarding medical negligence includes consideration
of the foreseeability of a risk of harm.
Relevance of Foreseeability in a Medical-Negligence Claim
{¶ 23} In general, a cause of action for negligence requires proof of (1) a
duty requiring the defendant to conform to a certain standard of conduct, (2)
breach of that duty, (3) a causal connection between the breach and injury, and (4)
damages. See Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472
N.E.2d 707 (1984). The elements are the same for medical negligence. Loudin v.
Radiology & Imaging Servs., Inc., 128 Ohio St.3d 555, 2011-Ohio-1817, 948
N.E.2d 944, ¶ 13. Only the elements relating to duty are at issue in this case.
{¶ 24} The concept of foreseeability is an important part of all negligence
claims, because “[t]he existence of a duty depends on the foreseeability of the
injury.” Menifee at 77. As a society, we expect people to exercise reasonable
precautions against the risks that a reasonably prudent person would anticipate.
Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188(1989). Conversely, we do not expect people to guard against risks that the
reasonable person would not foresee. Menifee at 77; Keeton, Dobbs, Keeton &
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Owen, Prosser and Keeton on the Law of Torts, Section 43, 280 (5th Ed.1984).
The foreseeability of the risk of harm is not affected by the magnitude, severity,
or exact probability of a particular harm, but instead by the question of whether
some risk of harm would be foreseeable to the reasonably prudent person. See
Gedeon v. E. Ohio Gas Co., 128 Ohio St. 335, 339, 190 N.E. 924 (1934).
Accordingly, the existence and scope of a person’s legal duty is determined by the
reasonably foreseeable, general risk of harm that is involved.
{¶ 25} The existence of an actor’s duty to another person usually arises
from the foreseeability of injury to someone in that other person’s “general
situation.” Gedeon at 339. But there are also certain legally recognized
relationships between parties that can establish the existence of an actor’s duty to
another person. Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio
St.3d 284, 293, 673 N.E.2d 1311 (1997). The relationship between medical
professionals and their patients is one of those legally recognized relationships.
Lownsbury v. VanBuren, 94 Ohio St.3d 231, 235, 762 N.E.2d 354 (2002). The
physician-patient relationship arises from an express or implied contract between
the physician and patient and imposes on the physician a fiduciary duty to
exercise good faith. Id., quoting Tracy v. Merrell Dow Pharmaceuticals, Inc., 58
Ohio St.3d 147, 150, 569 N.E.2d 875 (1991).
{¶ 26} In the context of an established physician-patient relationship,
there is no need to independently determine whether the patient falls within the
class of people who could foreseeably be injured, because the existence of the
physician’s duty to that patient is already clear. To this extent, the appellate court
accurately held that foreseeability is irrelevant to a determination of a physician’s
duty. 2012-Ohio-5154, 985 N.E.2d 548, at ¶ 22. But the foreseeability of one’s
duty to a particular person does not necessarily determine the foreseeability of a
risk of harm, and it therefore does not end the inquiry into the scope of an actor’s
duty to another person.
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{¶ 27} The scope of any duty owed is the standard of care that an actor
must exercise. Commerce & Industry Ins. Co. at 98; Berdyck v. Shinde, 66 Ohio
St.3d 573, 578, 613 N.E.2d 1014 (1993). The minimum standard of care expected
under any circumstances is to exercise that degree of care and caution that an
ordinarily careful and prudent person would exercise under similar circumstances.
Gedeon at 338. In the physician-patient relationship, however, the scope of the
duty owed includes an augmented expectation that physicians will exercise the
degree of care that is reasonable in light of the physician’s superior training and
knowledge. Berdyck at 579. Thus, the standard of care applicable to medical
professionals is to exercise the degree of care that a medical professional of
ordinary skill, care, and diligence would exercise under similar circumstances.
Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), at paragraph one of
the syllabus.
{¶ 28} Although the standard of care for a medical professional is
heightened, it does not necessarily supplant all consideration of foreseeability. As
part of their standard of care, medical professionals are expected to be able to
recognize certain symptoms of illness and injury, and they are expected to be
aware of the associated risk of harm. See Berdyck at 581 (obstetrical staff nurses
are expected to recognize symptoms of major obstetrical complications and take
appropriate action to prevent harm). In other words, they are expected to foresee
a risk of harm that a medical professional of ordinary skill, care, and diligence
would foresee under similar circumstances. And 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. See, e.g., Keebler v.
Winfield Carraway Hosp., 531 So.2d 841, 844-845 (Ala.1988), citing Fernandez
v. Baruch, 52 N.J. 127, 244 A.2d 109 (1968) (explaining that a physician does not
have a duty to take measures to prevent a patient from committing suicide if the
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patient’s suicide was not reasonably foreseeable under generally accepted medical
standards). Accordingly, foreseeability of harm is relevant to a physician’s
standard of care, and a correct, general statement of the law regarding the
standard of care or the breach of that standard includes the element of
foreseeability.
{¶ 29} Because foreseeability of harm is relevant to the determination of
the scope of a physician’s duty in a medical-malpractice action, giving a
foreseeability instruction in such an action is not manifestly incorrect, and the
appellate court’s conclusion to the contrary was erroneous.
{¶ 30} Having clarified the general question of law, we next consider the
instruction in light of the facts of the case.
Factual Propriety of Including a Foreseeability Instruction
{¶ 31} Foreseeability of harm usually does not enter into the analysis of
medical negligence, not because it is legally irrelevant, but because it is almost
always factually undisputed that a risk of harm was foreseeable and that the
medical professional was aware that the chosen course of treatment involved a
risk of harm. See, e.g., Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-
Ohio-4787, 834 N.E.2d 323, ¶ 30-31 (whether postsurgical infection was a
foreseeable risk of performing an invasive surgery was not disputed); Hubach v.
Cole, 133 Ohio St. 137, 139, 12 N.E.2d 283 (1938) (risk of burns from radium
treatment was foreseen). Instead, in the more common line of cases, the pertinent
question is whether the medical professional acted unreasonably in the face of
those risks. See, e.g., Branch v. Cleveland Clinic Found., 134 Ohio St.3d 114,
2012-Ohio-5345, 980 N.E.2d 970, ¶ 27 (relevant inquiry was whether “different
planning and procedures could have prevented the stroke,” not whether brain
injury was foreseeable); Beard (relevant dispute was whether the physician
reasonably assessed the likelihood and magnitude of a patient’s risk of infection,
not whether infection was foreseeable); Hier v. Stites, 91 Ohio St. 127, 128, 110
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N.E. 252 (1914) (relevant inquiry was only whether failure to sterilize equipment
and cleanse wound breached the physician’s standard of care, not whether
infection was foreseeable). Such is the case here.
{¶ 32} In this case, the treating physicians were not accused of failing to
foresee that the negative effects of the progression of shock and the strain on a
patient’s cardiovascular system were risks of delaying the intubation of a patient
in shock. They admitted to having knowledge of these risks and weighing them
against the risks and benefits of performing other precautionary measures prior to
intubation. Thus, the parties did not dispute that the treating physicians foresaw
that there was a risk of harm associated with their choice of emergency treatment.
Instead, they debated whether the physicians reasonably appreciated the
magnitude of the risk and properly weighed it in their risk-benefit analyses.
Accordingly, the question remaining was whether the physicians’ chosen course
of treatment was reasonable in light of the risks.
{¶ 33} We have long held that a trial court should limit its instructions to
the jury to matters actually raised in the pleadings and in the evidence at trial.
Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208, 560 N.E.2d 165(1990), citing Hood v. New York, Chicago & St. Louis Ry. Co., 166 Ohio St. 529,
144 N.E.2d 104 (1957), paragraph four of the syllabus. “Abstract rules of law or
general propositions, even though correct, ought not to be given unless
specifically applicable to facts in issue.” State v. Guster, 66 Ohio St.2d 266, 271,
421 N.E.2d 157 (1981). Even if an instruction is related to facts in the evidence,
an instruction that draws attention to irrelevant issues may be objectionable.
Masci v. Keller, 18 Ohio St.2d 67, 247 N.E.2d 457 (1969) (instructing a jury that
it may find in favor of the “defendants,” including the claimant’s employer, was
incorrect because it was irrelevant to the only question in the case, which was
whether the claimant was entitled to participate in the State Insurance Fund).
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{¶ 34} There was no question for the jury in this case regarding the
foreseeability of the risk of harm because the medical professionals were aware
that their chosen chronology of treatment of Seth’s shock carried with it some risk
of harm. Thus, the instruction regarding the foreseeability of harm was not
necessary in light of the facts and arguments presented in this case. We next
consider the potential effect of the unnecessary instruction on the Cromers’ case.
Propriety of Jury Instructions as a Whole
{¶ 35} An unnecessary, ambiguous, or even affirmatively erroneous
portion of a jury charge does not inevitably constitute reversible error. See
Becker, 53 Ohio St.3d at 208, 560 N.E.2d 165. If there is no inherent prejudice in
the inclusion of a particular jury instruction, prejudice must be affirmatively
shown on the face of the record, and it cannot be presumed. Wagner v. Roche
Laboratories, 85 Ohio St.3d 457, 461-462, 709 N.E.2d 162 (1999). “In
examining errors in a jury instruction, a reviewing court must consider the jury
charge as a whole and ‘must determine whether the jury charge probably misled
the jury in a matter materially affecting the complaining party's substantial rights.’
” Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652 N.E.2d 671 (1995),
quoting Becker at 208. If the complete set of instructions by the trial court
otherwise fairly and correctly lays out the relevant law, and if it is apparent in the
context of the complete instructions that an isolated error did not prejudice a
party’s substantial rights, reversal on such error is not warranted. Centrello v.
Basky, 164 Ohio St. 41, 128 N.E.2d 80 (1955), paragraph eight of the syllabus.
{¶ 36} The general rule is that an erroneous instruction does not
necessarily mislead a jury. See Cleveland Elec. Illum. Co. v. Astorhurst Land Co.,
18 Ohio St.3d 268, 274-275, 480 N.E.2d 794 (1985). The same rule applies in a
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medical-malpractice case. See Hayward v. Summa Health Sys./Akron City Hosp.,
139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.2d 243, ¶ 33.1
{¶ 37} In Cleveland Elec. Illum. Co., the trial court erroneously instructed
the jury that eight rather than nine members of a 12-member jury needed to agree
upon the verdict. Although nine jurors signed the verdict form, one of those nine
later averred that he had not agreed with the verdict but had signed the form
because he believed that his vote was purely academic. Id. at 273-274. We
rejected the argument that the trial court’s erroneous instruction necessarily
rendered the verdict invalid. Instead, we held that the question was whether the
instruction itself was so misleading that it could have directly induced an
erroneous verdict. Id. at 274, quoting Long v. Cassiero, 105 Ohio St. 123, 136
N.E. 888 (1922). We noted that the trial court had instructed the jurors to sign the
form only if they concurred in the verdict and had not indicated that any juror
should sign the form “(a) after eight other jurors had signed it, or (b) when it
became ‘academic’ for him to refuse to do so.” Id. at 275. Because the
inaccurate instruction could not have induced the ninth juror to vote against his
true intent, there was no showing of prejudicial error. Id. at 275.
{¶ 38} In Hayward, the trial court provided an erroneous instruction
regarding remote causation in a medical-negligence action, but the only alleged
evidence of juror confusion was the fact that the jury had completed separate
1
The above-described standards for finding prejudice in an erroneous jury instruction are well
settled, and we declined jurisdiction over the hospital’s assertion that the appellate court failed to
apply these standards correctly. This court generally declines to entertain issues that do not
involve a question of great general or public interest, such as ones that request resolution of an
individual case rather than resolution of the law. Ohio Constitution, Article IV, Section 2(e);
S.Ct.Prac.R. 7.08(B)(4)(b). But in order to fully determine whether the appellate court’s
dispositional order for a new trial should be affirmed or reversed based on the issue currently
under our review, we must answer the secondary, implicit issue of prejudice. See Belvedere
Condominium Unit Owners' Assn. v. R .E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d
1075 (1993). And because correction of the alleged error readily comes from our review of the
entire record, we are able to resolve this issue without receiving additional briefing on the already
settled law.
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interrogatories finding no causation despite having already found that the
defendant was not negligent Id. at ¶ 22. Because the interrogatories were
consistent with the general verdict, and because the erroneous instruction did not
induce the jurors to complete the mooted interrogatories, we held that no
prejudice was shown from the instruction itself. Id. at ¶ 32. Accordingly, in order
to demonstrate reversible error, there must be a connection between the allegedly
erroneous jury instruction and the alleged evidence of juror confusion.
{¶ 39} In the present case, the jury instruction found to constitute
reversible error by the court of appeals stated as follows:
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.
This foreseeability instruction was drawn from Ohio Jury Instructions, CV
Section 401.07(1) (Rev. May 12, 2012), which states:
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1. General. In deciding whether (reasonable) (ordinary)
care was used, you will consider whether the defendant(s) should
have foreseen under the circumstances that the likely result of an
act or failure to act would cause (injuries) (damages).
2. Test. The test for foreseeability is not whether a person
should have foreseen the (injuries) (damages) exactly as it
happened to the specific (person) (property). The test is whether
under the circumstances a reasonably careful person would have
anticipated that an act or failure to act would likely (result in)
(cause) (injuries) (damages).
{¶ 40} We note that the issue of foreseeability of harm, if factually
relevant in a medical-negligence case, would have to be considered in the context
of “recognized standards * * * provided through expert testimony,” just like any
other element of a medical-negligence claim. Bruni v. Tatsumi, 46 Ohio St.2d
127, at 131-132, 346 N.E.2d 673 (1976). When assessing the actions of a medical
professional, it would be inappropriate to view foreseeability in terms of a
layperson’s “ordinary” standard of care. For that reason, it would be preferable
for OJI to include in its medical-specific jury instructions a foreseeability
instruction that incorporates the specific standard of the reasonable medical
professional rather than the reasonable person. However, because the instructions
in the present case repeatedly defined “reasonable” and “ordinary care” solely in
the context of a “reasonable hospital,” a “reasonably careful physician,” and
“hospitals, physicians and/or nurses of ordinary skill, care and diligence,” the jury
instructions regarding the applicable standard of care, as a whole, were not
misleading. See Youngstown Mun. Ry. Co. v. Mikula, 131 Ohio St. 17, 20, 1
N.E.2d 135 (1936).
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{¶ 41} Regardless, the appellate court’s determination of error in this case
was based not on particular word choices in the trial court’s foreseeability
instruction, but on the inclusion of the concept of foreseeability, as a whole, in
jury instructions on medical negligence. And by requiring reversal based on the
trial court’s mere inclusion of a foreseeability instruction, the appellate court
erroneously presumed that the error was prejudicial2 instead of determining
whether there was a clear indication on the face of the record that the instruction
prejudiced the Cromers’ substantial rights. Wagner at 461-462.
{¶ 42} The only manifestation of the jury being misled by the
foreseeability instruction that was identified to the appellate court was that the
jurors completed the interrogatory regarding proximate cause instead of stopping
after finding that negligence had not occurred. But similarly to Cleveland Elec.
Illum. Co. and Hayward, we see no connection between an unnecessary
foreseeability instruction and the jurors’ decision to complete the interrogatory for
the mooted issue of causation after completing the interrogatory for the primary
issue of negligence. Thus, some other showing from the record would be
necessary to establish that the instruction led the jury to an erroneous result in this
case. However, none was made.
{¶ 43} The jury’s answers to the negligence and the causation
interrogatories, both in favor of the defense, were not inconsistent with one
another, nor were they inconsistent with the general verdict. Further, in contrast
to the manifestly erroneous instruction in Cleveland Elec. Illum. Co. and the
factually unsupported instruction in Hayward, the foreseeability instruction in this
case was drawn from the actual facts presented, but was mere surplusage.
Accordingly, the record in this case does not establish that the unneeded jury
2
Contrary to the position taken in the dissenting opinion, the appellate court’s discussion of
whether the proximate-cause interrogatory rendered the error harmless did not somehow cure the
appellate court’s failure to find prejudice on the face of the record in the first place.
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instruction on foreseeability prejudiced the Cromers’ substantial rights, and the
appellate court’s reversal was not justified.
CONCLUSION
{¶ 44} In the context of an established physician-patient relationship,
consideration of foreseeability is unnecessary to the determination whether the
patient is someone to whom the physician owes a duty of care. But the issue of
foreseeability is relevant to a physician’s standard of care in treating a particular
patient, and separate consideration of the foreseeability of harm is appropriate if
there is a question for the jury regarding whether the physician knew or should
have known that a chosen course of treatment involved a risk of harm. However,
in most medical-negligence cases, including this one, the foreseeability of a risk
of harm related to the medical treatment is conceded, leaving no need for a jury
instruction on foreseeability.
{¶ 45} Further, a jury instruction on a general rule of law, even if correct,
should not be given if the instruction is not applicable to the evidence presented.
But the inclusion of an unnecessary instruction does not constitute reversible error
absent a showing of material prejudice. Because such a showing was not
provided in this case, the appellate court should not have disturbed the jury’s
verdict.
{¶ 46} We therefore reverse the judgment of the court of appeals. We
remand the cause to the appellate court to consider the Cromers’ assignments of
error regarding the manifest weight of the evidence and the failure to grant the
motion for a new trial, which the appellate court previously held were mooted by
its disposition.
Judgment reversed
and cause remanded.
LANZINGER, FRENCH, and O’NEILL, JJ., concur.
O’DONNELL and KENNEDY, JJ., concur in judgment only.
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PFEIFER, J., dissents.
_____________________
O’DONNELL, J., concurring in judgment only.
{¶ 47} This appeal raises two issues: first, whether the trial court in this
medical malpractice action erred in instructing the jury on the concept of
foreseeability applicable to an ordinary negligence claim, and second, whether
that instruction probably misled the jury and resulted in an erroneous verdict.
Because the court’s instructions did not accurately charge the jury on the
applicable law, and because the court of appeals failed in the first instance to
determine whether the erroneous instructions probably misled the jury and
resulted in an erroneous verdict, I concur in the court’s judgment to reverse and
remand the matter for further proceedings.
{¶ 48} A cause of action for negligence requires the claimant to prove
“the existence of a duty, a breach of that duty, and an injury resulting proximately
therefrom.” Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472
N.E.2d 707 (1984). In ordinary negligence cases, we have stated that “[t]he
existence of a duty depends on the foreseeability of the injury.” Id. And as we
explained in Menifee, “[t]he test for foreseeability is whether a reasonably prudent
person would have anticipated that an injury was likely to result from the
performance or nonperformance of an act.” Id. See also Gedeon v. E. Ohio Gas
Co., 128 Ohio St. 335, 338, 190 N.E. 924 (1934) (“No one is bound to take care to
prevent consequences which, in the light of human experience, are beyond the
range of probability”).
{¶ 49} But in medical malpractice cases, we have not generally used the
concept of foreseeability to define the duty that a medical provider owes to a
patient. Rather, in Bruni v. Tatsumi, 46 Ohio St.2d 127, 129, 346 N.E.2d 673(1976), we set forth the test for evaluating the conduct of a physician or surgeon
charged with malpractice as
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whether the physician, in the performance of his service, either did
some particular thing or things that physicians and surgeons, in
that medical community, of ordinary skill, care and diligence
would not have done under the same or similar circumstances, or
failed or omitted to do some particular thing or things which
physicians and surgeons of ordinary skill, care and diligence would
have done under the same or similar circumstances.
{¶ 50} We also have relied on the concept of foreseeability in determining
whether the negligent act proximately caused the injury. See, e.g., Mussivand v.
David, 45 Ohio St.3d 314, 321, 544 N.E.2d 265 (1989) (“in order to establish
proximate cause, foreseeability must be found”); Strother v. Hutchinson, 67 Ohio
St.2d 282, 287, 423 N.E.2d 467 (1981) (“a reasonable foreseeability of injury is
considered an element of proximate cause”). As we explained in Gedeon, “The
law, in determining liability for harm done, refuses to follow the logical chain of
causation beyond what it regards as the direct or proximate cause.” 128 Ohio St.
at 339, 190 N.E. 924. Thus, it is not enough that the negligent act is a cause-in-
fact of the injury, but the injury must also be “ ‘the natural and probable
consequence’ ” of the negligent act, that is, “ ‘it must appear that the injury
complained of could have been foreseen or reasonably anticipated from the
alleged negligent act.’ ” Strother at 287, quoting Ross v. Nutt, 177 Ohio St. 113,
114, 203 N.E.2d 118 (1964).
{¶ 51} Here, the trial court erred in giving the jury instruction on
foreseeability. First, there is no question that the medical professionals treating
Seth owed him a duty of reasonable care arising from the doctor-patient
relationship, nor is it disputed that the injury complained of could have been
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reasonably anticipated from the allegedly negligent acts. Any foreseeability of
harm to Seth was therefore not at issue in this case.
{¶ 52} Second, and more importantly, the trial court’s instruction on
foreseeability fundamentally misstated the standard of care applicable in medical
malpractice cases. The court framed its foreseeability instructions in terms of a
layperson’s ability to anticipate that death would likely result from an act or a
failure to act by the hospital’s medical professionals. But a reasonable layperson
considering the circumstances in this case—in which a child presents to an
emergency department suffering from an ear infection and dehydration—lacks the
necessary knowledge, training, and experience to appreciate whether or not the
child’s death was likely to result. Rather, the question is whether the hospital’s
medical professionals “employ[ed] that degree of skill, care and diligence that a
physician or surgeon of the same medical specialty would employ in like
circumstances.” Berdyck v. Shinde, 66 Ohio St.3d 573, 579, 613 N.E.2d 1014(1993).
{¶ 53} The trial court compounded this error by stating the foreseeability
instruction in terms of probability. Although the reasonable person in an ordinary
negligence case may be required to anticipate only those injuries that are likely to
result from a course of conduct, a doctor is charged with possessing the
specialized knowledge and experience of the medical profession and therefore is
required to anticipate diagnoses that may be unlikely or rare. As one treatise
explains, “It is the object of diagnostic effort to identify the disease responsible
for the patient’s present syndrome. Thus, the ultimate step in differential
diagnosis consists of selecting from a number of possibilities the disease or
diseases that come nearest to explaining the clinical and laboratory finding in the
case in question.” (Emphasis added.) 1 Pegalis, American Law of Medical
Malpractice 3d, Section 3:12, at 231 (2005).
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{¶ 54} In effect, the trial court informed the jury that the hospital’s
doctors had a duty to foresee and treat only those diseases that appeared more
likely than not to cause Seth’s illness, regardless of whether a reasonable medical
professional in the same specialty under like circumstances would have correctly
diagnosed and treated the condition from which he suffered. The Supreme Court
of Georgia in Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009), recently
concluded that a similar instruction charging the jury in a medical malpractice
action that “ ‘[n]egligence consists of not foreseeing and guarding against that
which is probable and likely to happen, not against that which is only remotely
and slightly possible’ ” was inaccurate and misleading, because it directed the
jury that it could not find negligence in the failure to diagnose a relatively rare but
severe disease. Id. at 710-711, quoting 1 Suggested Pattern Jury Instructions:
Civil Cases, Section 62.311 (4th Ed.2004).
{¶ 55} For these reasons, the instruction the trial court gave on
foreseeability is erroneous, and I see no need to provide an advisory opinion
speculating on when an instruction on foreseeability might be appropriate in
charging the jury on the standard of care for medical professionals.
{¶ 56} Erroneous jury instructions rise to reversible error only if “the jury
charge was so misleading and prejudicial as to result in an erroneous verdict.”
Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-
Ohio-1913, 11 N.E.3d 243, ¶ 25.
{¶ 57} Here, the majority’s analysis is based on a mistaken reading of the
Ninth District’s decision; the majority asserts that “the appellate court erroneously
presumed that the error was prejudicial,” majority opinion at ¶ 41, and that “[t]he
only manifestation of the jury being misled by the foreseeability instruction that
was identified to the appellate court was that the jurors completed the
interrogatory regarding proximate cause instead of stopping after finding that
negligence had not occurred,” id. at ¶ 42. It is true that there is “no connection
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between an unnecessary foreseeability instruction and the jurors’ decision to
complete the interrogatory for the mooted issue of causation,” majority opinion at
¶ 42, but the court of appeals drew no such connection and did not find prejudice
simply because the jury failed to comply with the trial court’s instruction not to
answer the interrogatory on proximate cause if it found that the hospital had not
been negligent. The appellate court addressed only whether the erroneous
instruction could be deemed harmless based on the jury’s additional finding that
the hospital’s negligence had not proximately caused Seth’s death, such that the
Cromers would have failed to prove their cause of action notwithstanding the
erroneous instruction.
{¶ 58} In fact, the court of appeals did not consider whether the jury
instructions, taken as a whole, probably misled the jury, and it provided little
analysis in support of its conclusion that the trial court committed reversible error.
But as we recently explained in Hayward, an appellate court “ ‘will not assume
the presence of prejudice * * * but must find prejudice on the face of the
record.’ ” Hayward at ¶ 26, quoting Wagner v. Roche Laboratories, 85 Ohio
St.3d 457, 462, 709 N.E.2d 162 (1999).
{¶ 59} Accordingly, I would reverse the judgment of the court of appeals
and remand the matter for a determination whether the jury instructions, taken as
a whole, probably misled the jury and resulted in an erroneous verdict in this case.
I therefore concur in the majority’s judgment, but not its reasoning.
KENNEDY, J., concurs in the foregoing opinion.
_____________________
PFEIFER, J., dissenting.
I
{¶ 60} The majority holds that the appellate court correctly held that the
trial court erred in including a jury instruction on foreseeability, but concludes
that the appellate court failed to show that the jury instructions materially
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January Term, 2015
prejudiced the Cromers. The majority opinion is weighted with syllabus
paragraphs, but all the syllabus paragraphs in the world cannot change the fact
that the sole, unremarkable holding of this case is that the appellate court did not
do enough to show that the jury instructions it correctly held were erroneous were
prejudicial. But here is the rub: that issue is not before this court. This court
specifically refused jurisdiction on the following proposition of law offered by the
appellant:
A verdict may not be reversed for a claimed error in the
jury instructions where the jury instruction, as a whole, properly
explained the applicable law, and where there has been no
demonstration that the jury was probably misled by the allegedly
erroneous instruction.
(Emphasis sic.) See 134 Ohio St.3d 1484, 2013-Ohio-902, 984 N.E.2d 28.
{¶ 61} The appellant had argued in that proposition of law that even if the
foreseeability instruction was wrong, the trial court’s instructions as a whole did
not mislead the jury. By refusing to accept that proposition of law, this court let
stand the court of appeals’ determination of prejudice. This court accepted
jurisdiction on only the following proposition of law:
Foreseeability is a vital and important factor for a jury to
consider in determining whether a medical defendant has acted as a
reasonably prudent medical provider under the same or similar
circumstances. Thus, a trial court should instruct jurors in medical
malpractice cases on the issue of foreseeability.
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See id. Thus, the only issue before this court is whether the appellate court
correctly held that the trial court had erred in giving an instruction on
foreseeability to the jury. The parties have every reason to believe that this appeal
would be resolved upon a determination of only that legal issue. The resolution
of that issue in favor of the appellees should end this case and lead to an
affirmance of the appellate court. Instead, the majority moves on to an issue not
briefed by the parties—not briefed at the specific instruction of this court.
{¶ 62} This case turns on an issue the appellees never had a chance to
address. The majority opinion misleadingly states:
The only manifestation of the jury being misled by the
foreseeability instruction that was identified to the appellate court
was that the jurors completed the interrogatory regarding
proximate cause instead of stopping after finding that negligence
had not occurred.
Majority opinion at ¶ 42. The Cromers have made no such argument in this court
because they did not need to. Through its refusal to accept jurisdiction on the
issue of prejudice, this court declared the issue settled. But the majority ignores
this court’s earlier, gateway determination and instead determines the case on the
issue it refused to consider.
II
{¶ 63} Even if the issue of whether the jury instruction was prejudicial
were properly before this court, the majority’s analysis is wrong. The appellate
court did address prejudice. It held that even though the jurors answered the
proximate-cause interrogatory in favor of the hospital—that its negligence was
not the proximate cause of Seth’s death—the foreseeability instruction was still
prejudicial. The court of appeals addressed the argument that the instruction on
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January Term, 2015
negligence was harmless error because the jury—regardless of its finding on
negligence—had found a lack of proximate cause. The court pointed out that the
instruction on proximate cause was premised on whether the hospital’s negligence
had caused Seth’s death and that the trial court’s instruction on negligence had
tainted the jury’s finding on proximate cause. Thus, despite an answer to the
interrogatory in favor of the hospital on proximate cause, the court held that “we
cannot conclude that the trial court's improper instruction on the hospital's
standard of care did not affect the ultimate outcome in this case.” 2012-Ohio-
5154, 985 N.E.2d 548, ¶ 26 (9th Dist.). Certainly, the appellate court properly
demonstrated that prejudice sufficient to reverse the trial court’s judgment existed
by demonstrating that the trial court’s faulty jury instruction on negligence
compromised even the jury’s finding on proximate cause.
III
{¶ 64} Further, that the foreseeability jury instruction was prejudicial is
apparent on its face. Let us revisit the jury instruction at issue, which the
nonunanimous jury (the vote was 6-2 in favor of the defendant) took into the jury
room:
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.
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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.
{¶ 65} The instruction placed the treating doctors in the position of
laymen—“a reasonably cautious, careful, prudent person”—and required them to
have anticipated that Seth’s death was the likely result of their failure to act. Not
that an extended illness or an increased hospital stay might have resulted, but
death. Would a reasonably prudent person believe that a basically healthy five-
year-old child would likely die during a trip to the emergency room? No—
because no one wants to believe that that is possible, let alone likely.
{¶ 66} Because of the foreseeability jury instruction, the
incomprehensible tragedy of Seth’s death inures to the benefit of the hospital. A
“reasonably cautious, careful, prudent, person” would never expect that a little
boy with an earache and stomachache could be dead in a matter of hours.
Certainly, anyone who could have anticipated that his or her care would result in
the death of a child would have approached the child’s treatment differently.
{¶ 67} The inclusion of the foreseeability instruction prejudiced the
Cromers by allowing the jury to consider the treating doctors not as clinicians
bound to perform their jobs within certain standards, but as laymen dealing with
the unthinkable, heartbreaking death of a young child.
Conclusion
{¶ 68} This court accepted this case pursuant to its authority under Article
IV, Section 2(B)(2)(e) of the Ohio Constitution as a “case[] of public or great
general interest.” It is neither. It is of like kind with Branch v. Cleveland Clinic
Found., 134 Ohio St.3d 114, 2012-Ohio-5345, 980 N.E.2d 970, and Hayward v.
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January Term, 2015
Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11
N.E.3d 243, error-correction cases without meaningful holdings that reversed
appellate-court reversals of defense verdicts in medical-malpractice cases. But
this case is worse; there is no error to correct that is properly before this court. At
least in Summa, this court accepted jurisdiction to answer the question of whether
the trial court’s error was prejudicial, and in Branch, it accepted jurisdiction to
determine whether the trial court had abused its discretion on certain evidentiary
and jury-instruction decisions. Here, the majority decides the case on an issue
over which it expressly disclaimed jurisdiction. That it decides that issue wrongly
is to be expected.
_____________________
Hanna, Campbell & Powell, L.L.P., Gregory T. Rossi, and Rocco D.
Potenza, for appellant.
Amer Cunningham Co., L.P.A., Jack Morrison Jr., Thomas R. Houlihan,
and Vicki L. DeSantis, for appellees.
Bricker & Eckler, L.L.P., and Anne Marie Sferra, urging reversal for
amici curiae Ohio Hospital Association, Ohio State Medical Association, and
Ohio Osteopathic Association.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association for Justice.
Rhonda Gail Davis and Jacquenette S. Corgan, urging affirmance for
amicus curiae Summit County Association for Justice.
_____________________
29