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Cromer v. Children’s Hosp. Med. Ctr. of Akron – Foreseeability Factor in Med-Mal Case

Claims of medical malpractice are litigated differently than those involving general negligence. It’s not enough that a patient suffers an adverse outcome while under a doctor’s care. There must be evidence indicating the physician (or other health care professional) deviated from the applicable standard of care and thus proximately caused or exacerbated injury to the patient.

This is a much higher burden of proof than in other kinds of cases.hospital2

In general negligence cases, the issue of foreseeability is often a central one. The court will weigh whether a hazard was known or should have been known in determining the duty to protect others from it. In medical malpractice cases, foreseeability might still be an issue, particularly when determining whether a doctor exercised reasonable care.

However, as the Ohio Supreme Court ruled recently in Cromer v. Children’s Hosp. Med. Ctr. of Akron, it is not a necessary consideration in determining whether a doctor owes a patient a duty of care. Here, the state’s high court held that while a jury instruction on the issue of foreseeability in a medical malpractice case was not necessary, it did not unfairly prejudice plaintiff, as alleged on appeal.

According to court records, this tragic case involves the death of a 5-year-old child. The long-fought legal battle was first brought to trial six years ago, when the boy’s parents alleged medical negligence on behalf of doctors who treated the child.

The boy was treated by his doctor a week earlier for an ear infection. His parents brought him to the emergency room in January 2007, where tests were performed and the boy was moved to pediatric intensive care. It was determined prior to that move the boy was suffering from shock. However, it wasn’t until he was placed in the PICU that doctors decided to insert a ventilator to aid him in breathing. Soon after, the boy went into cardiac arrest and died.

An autopsy would later show the shock was the result of a rare viral infection resulting from inflammation and damage to his heart. It was also found he had a narrowing of one of his main coronary arteries, a condition very rare for someone his age.

During trial, medical experts for plaintiffs argued the timing of certain treatments – particularly the intubation of the ventilator – was improper and should have been done sooner. Failure to do so amounted to a deviation from acceptable care standards.

However, she did not dispute the doctor understood and considered the possible harms possible with each treatment.

Trial judge gave an instruction to jurors on this point of foreseeability, using language used in general negligence provisions.

Jurors decided the case in favor of the doctors and hospital.

On appeal, plaintiffs argued this improper instruction prejudiced them. An appellate court agreed and reversed, but the Ohio Supreme Court again reversed and remanded.

Though the instruction was not necessary, it didn’t harm the plaintiff because the issue of of foreseeability wasn’t central here. Both sides agreed the doctor weighed the potential risks of each treatment course, and thus, the error was harmless.

Because medical malpractice lawsuits can be extremely complex and carry a higher proof burden, it’s important for individuals to consult with an experienced attorney as soon as possible.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Cromer v. Children’s Hosp. Med. Ctr. of Akron, Jan. 27, 2015, Ohio Supreme Court

More Blog Entries:

Report: Toy Injuries Among Children Higher Than Ever, Dec. 20, 2015, Fort Lauderdale Injury Lawyer Blog

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