What Happened on Remand: Court of Appeals Grants New Trial in Medical Malpractice Case. Cromer v. Children’s Hospital Med. Ctr. Of Akron.

There just must be something about this case. It was pending in the Supreme Court of Ohio for over a year before it was decided. When it was reversed and remanded, it was pending in the appeals court for over a year before it was decided.

Case Background

This is a medical malpractice case that resulted in the death of five year old Seth Cromer. The medicine in the case is very complex, and is detailed in the two appellate and in the supreme court opinions.

In short, after Seth had a worsening viral infection, his parents took him to the hospital emergency room where he was ultimately diagnosed as being in septic shock. In the early morning hours of his arrival, Seth was transferred to the Pediatric Intensive Care Unit, where he died from coronary failure shortly after 3:30 in the morning.

One thing was undisputed. While in the emergency room, a hospital nurse gave Seth the wrong intravenous saline solution to treat his dehydration. The parties disagreed about the effect this had on Seth’s condition.

The Cromers’ expert opined that Seth’s death was caused by the failure to intubate him sooner, by not assessing him and giving him IV fluids sooner, and by giving him the wrong intravenous fluids. The hospital’s experts opined that a pre-existing heart condition caused Seth’s acidosis and eventual death, that he was treated appropriately, and there was nothing more that could have been done to save him.

Jury Instructions

After giving the standard medical negligence jury instructions, at the request of the hospital, and over the Cromers’ objection, the trial court also gave the general negligence instruction on foreseeability. That instruction asked the 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.

Jury Interrogatories

Pertinent to this case was an interrogatory asking whether the hospital had been negligent, and another asking if the negligence was the proximate cause of Seth’s death. The trial court told the jury that if the answer to the first interrogatory was “no,” deliberations were complete. Instead, the jury answered “no” to both interrogatories. After finding the answers consistent, and receiving no objection from counsel, the court entered judgment on the jury’s verdict in the hospital’s favor.

First Appeal

The Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding both that the foreseeability instruction was incorrect because it was irrelevant to determining the standard of care of a medical professional, and that the error was not harmless because of the jury’s decision, contrary to the judge’s instruction, to answer the second, causation interrogatory. Because of its holding, the appeals court did not address other errors on manifest weight of the evidence or failure to grant a new trial.

Supreme Court Decision

On January 27, 2015, in Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229, a fractured opinion written by Chief Justice O’Connor, joined by Justices Lanzinger, French and O’Neill, in which Justices O’Donnell and Kennedy concurred in judgment only and Justice Pfeifer dissented, the court held that the foreseeability instruction given in this medical negligence case should not have been given, but was not prejudicial error, and reversed the court of appeals on this point. The case was remanded 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. Read the analysis of the merit decision here.

Second Appeal

On remand, the appeals court considered the remaining two assignments of error—that the verdict was against the manifest weight of the evidence and that the trial court erred in failing to grant appellants’ motion for a new trial—together, confining its analysis to the manifest weight argument because it found it to be dispositive. In a 2-1 decision written by Judge Carr, joined by Judge Moore, the court found the verdict to be against the manifest weight of the evidence. Judge Hensal dissented. The opinion was issued October 26, 2016.

Jury Interrogatories

Key to this appeal are the jury interrogatories. The first interrogatory submitted to the jury asked whether the plaintiffs had proven that the hospital was negligent, and the answer was “no.” The trial court had instructed the jury that if it answered that question with a “no,” it should not answer the remaining interrogatories. But the jury went on to answer “no” to another interrogatory which asked if the hospital’s negligence had caused Seth’s death. The jury then returned a general verdict for the hospital which the trial court accepted and entered judgment on the jury’s verdict for the hospital.

The Special Interrogatory on Hospital Negligence

The appeals court limited its weight-of-the-evidence review to the answer to the first interrogatory—that the hospital did not breach its duty to Seth. It disregarded the answer to the interrogatory on causation, since the jury had specifically been instructed not to answer it. In the court’s words, “the issue of causation had been “mooted” by the jury’s finding on the determinative issue that the hospital was not negligent.”

The majority found that the evidence in the case was undisputed that the emergency room doctor had ordered intravenous normal saline for Seth, but a nurse mistakenly administered D5 1/2 normal saline solution instead. There was no evidence to “dispute or undermine the credibility of the opinion of the Cromers’ medical expert that the nurse’s act of failing to follow a doctor’s orders and instead giving Seth the wrong saline solution constituted a departure from the standard of care.” So, given the fact that the expert testimony on this issue was not contradicted by any other evidence, nor was the credibility of the expert’s opinion challenged on this point, the majority found the jury was not free to disregard it. Thus, the majority found, that the jury had lost its way in finding that the Cromers failed to prove that the hospital had breached its duty of care to Seth. Accordingly, the verdict was against the manifest weight of the evidence.

Dissenting Opinion

Judge Hensal believes it is the entire jury verdict, not a single element, that must be evaluated in a manifest-weight-of-the-evidence challenge. She notes that the Cromers’ expert testified as to several errors made by hospital employees, and that there were disputes both factually and by the experts about whether the hospital deviated from the standard of care by not treating Seth sooner with IV fluids and/or intubation. She emphasized that the experts sharply disagreed about whether any alleged breaches of duty caused Seth’s death. In sum, she believes that the Cromers failed to show that the jury lost its way by entering a general verdict for the hospital on the malpractice claim.

Because of her position on the manifest weight issue, Judge Hensal separately addressed the new trial issue. While noting that the Cromers had raised the inconsistency in the interrogatory answers in their motion for a new trial, they failed to object before the verdict was accepted and the jury discharged. Thus, to her, the Cromers waived all but plain error, which they failed to demonstrate.

Hensal would hold that the jury in this case found no negligence and no causation, and entered a general verdict for the hospital, all of which were consistent.

Now What?

The Cromers get a new trial.

Concluding Observations

Well, I have confessed many times that I have a notorious plaintiff’s heart in these matters. And despite the perception encouraged by “tort reformers,” medical malpractice cases are incredibly difficult for plaintiffs to win.

As a former malpractice lawyer, I think the majority here got it right. Ironically, this is a case where having special interrogatories hurt the hospital. Had there been none, the general verdict would have survived the manifest weight challenge, because even if the jury had found the hospital negligent (it didn’t, but the majority said it should have, at least in regard to the saline solution) the jury could still well have found that any negligence was not the cause of Seth’s death. From the answer to the special interrogatory it answered that it shouldn’t have, the jury in this case certainly appeared to think that. From the complex facts of this case, the causation element may well derail the Cromers the next time. But at least they will get another go at it.