holding that the loss of chance doctrine should not be applied in wrongful death cases because the statute is limited to acts causing death and relaxing the causation standards would be unwiseSummary of this case from U.S. v. Cumberbatch
Decided July 21, 1971.
Negligence — Wrongful death — Medical malpractice — Charge to jury — Issue of proximate cause — Not jury question, when — Standard of proof applicable — Appeal — Prejudicial error required to support reversal — Evidence.
In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery, the patient probably would have survived.
APPEAL from the Court of Appeals for Hamilton County.
This case originated in the Court of Common Pleas as a wrongful death action brought by Margaret Cooper, administratrix of the estate of her son, Theodore Grant Cooper.
Sometime in the early afternoon on July 22, 1965, Theodore Grant Cooper, age 16, was struck by a truck while riding a bicycle. Later that afternoon at about 2:00 p.m., his mother saw him at the home of a relative. Theodore stated that he had hit his head, hurt his back, and complained of a slight headache. He had vomited prior to his mother's arrival and again after her arrival. Mrs. Cooper observed a red mark on the back of his head.
In the early evening of July 22, 1965, Mrs. Cooper accompanied her son to the emergency room of Good Samaritan Hospital. He was able to enter the hospital unaided. While waiting to be attended, the decedent vomited again.
A lady came from an office in the emergency room, asked for, and was given certain information by Mrs. Cooper. Mrs. Cooper informed her of her son's name, address, and how he was hurt.
The boy and his mother then entered an examining room where appellee, Dr. Hansen, began his examination.
The doctor was given the history of decedent's accident, vomiting, and complaint of headache. Dr. Hansen examined the decedent about the stomach and the top of his head; tested his reflexes and grip, examined his eyes with a light; looked into his ears; and ordered X-rays, the results of which did not reveal a skull fracture.
At all times during the examination Mrs. Cooper was present, except when decedent was taken to the X-ray room. She testified that her son was lying down on a movable cart throughout the examination, and that she called the physician's attention to the fact that it was the back of the boy's head that was hurt, but he did not examine the back of the boy's head.
Dr. Hansen did not utilize an opthalmoscope, did not test decedent's gait, did not perform a Romberg test, nor did he conduct any other diagnostic procedures.
Concluding his attendance, Dr. Hansen advised that the patient be taken home, put to bed, and awakened every hour during the early part of the evening to make sure that he could be awakened. Thereafter he was to be awakened every two hours throughout the remainder of the night. Mrs. Cooper was told that if she were unable to awaken him or if he vomited more than twice, or if she recognized any other change in his condition, she was to return him to the hospital. Upon leaving the hospital the decedent had to be assisted in walking.
When appellant and her son returned to her apartment, the boy went to bed. He remained awake with no apparent change in his condition until he became restless just before his death, which occurred early the next morning.
Appellant's witness, Dr. Frank Cleveland, Hamilton County Coroner, performed an autopsy and stated at trial that, in his opinion, the cause of death was a basal skull fracture and a swelling of the tissues in the back of the decedent's head, causing intracranial pressure and hemorrhage as the result of an injury to his head.
Dr. Hansen did not determine decedent's vital signs; i. e., temperature, respiration, pulse, and blood pressure. Mrs. Cooper testified that none of these tests were conducted while she was with her son at the hospital. Dr. Hansen testified that although he had no personal knowledge of his own as to whether the vital signs of the decedent were taken at the hospital, taking such signs were mandatory routine procedures in the emergency room. He testified further that at present he did not know what decedent's vital signs were that night, but that he was sure that he had known them at that time.
Dr. Hansen testified as follows regarding the taking of vital signs:
"A. The nurse would take the vital signs, yes.
"Q. What nurse on this particular evening, Dr. Hansen, took the vital signs?
"A. Mrs. Loughery, sir.
"Q. What were the vital signs?
"A. I don't know, sir.
"Q. What were the vital signs?
"A. I don't know, sir.
"Q. Did you ever know on the evening of July 22, 1965, what Grant Cooper's vital signs were?
"A. I am sure that I must have.
"Q. I am asking you if you knew, not what you think.
"A. I would say yes, sir.
"Q. Did you ever make a notation of his blood pressure?
"A. No, sir.
"Mr. Kiely: Just a moment. I object, if your Honor please. There is no showing that in the routine of these things the doctor does those things. If counsel wants to lay a foundation as to who makes the entries, all right. But to ask the doctor if he did or didn't —
"The Court: I will let the answer stand up to now. You may ask another question, Mr. Breslin.
"Q. In other words, Dr. Hansen, you relied upon the nurse at the hospital to take all the vital information?
"A. That's right.
"Mr. Greene: I will object.
"The Court: Overruled.
"Q. Doctor, let's see if we can agree. It is important for somebody to find out what the boy's blood pressure was?
"A. That's right.
"Q. And what his temperature was?
"A. Yes, sir.
"Q. And what his pulse was?
"A. That's right.
"Q. And what his respiration was?
"A. Yes, sir.
"Q. I am asking you, Doctor, when Grant Cooper came in to see you, or you went in to see him on the evening of July 22, 1965, what was his temperature?
"Mr. Kiely: I object, if your Honor please.
"The Court: If he knows he may answer.
"A. I don't remember.
"Q. You mean you don't know?
"The Court: That's what he just said, Mr. Breslin.
"Q. What was Grant Cooper's blood pressure on the evening of July 22, 1965, when you examined him in the emergency room of Good Samaritan Hospital?
"A. I don't remember.
"Q. What was Grant Cooper's rate of respiration on that evening?
"A. I don't remember.
"Q. What was Grant Cooper's pulse on that evening?
"A. I don't remember.
"Q. Now, the reason these notes are taken or these reports are kept is so that the doctor can refresh himself on what he observed, what conclusions he made, or what treatment he prescribed, and similar information; is that not so?
"A. That's right, sir..
"Q. Yet on this evening that Grant Cooper came in you have no record of any of that information, do you.
"Mr. Kiely: Objection again.
"The Court: He just answered that, Mr. Breslin.
"Mr. Breslin: He said that he didn't remember.
"Mr. Kiely: He has said that it wasn't his duty.
"Q. Doctor, did you ever yourself make a record of what those vital signs were?
"A. I did not.
"Q. To your knowledge did anyone ever make a record of what those vital signs were?
"A. Not a permanent record, no, sir.
"* * *
"Q. What was this nurse's name who you said took the vital signs that evening?
"A. Mrs. Loughery.
"Q. Have you ever discussed this matter with her since then?
"A. No, I haven't.
"Q. Prior to submitting yourself to deposition on December 28, 1965, did you discuss this with her?
"A. I think that I did once, yes, sir.
"Q. Was the discussion, `Did you take the blood pressure that night'?
"A. No. I was not aware that the blood pressure was not recorded on this chart at that time.
"Q. You have no knowledge if it was ever taken, of your own, do you?
"A. Will you repeat that, sir?
"(Pending question read by the reporter.)
"A. I have no knowledge of my own.
"Q. Of your own personal knowledge?
"A. I have no written report of it.
"Q. You have no personal knowledge that it was done, do you?
"A. It was a mandatory routine that that be done in the emergency room.
"Q. I will agree with that, but I am asking you, sir: You have no personal knowledge that it was done, do you?
"A. I would answer that the same way, sir."
The appellant filed this action in the Court of Common Pleas against the Sisters of Charity of Cincinnati, Inc., doing business as Good Samaritan Hospital; the Emergency Professional Service Group of Good Samaritan Hospital, an unincorporated association; Richard Weber, that group's co-director; and Dr. Robert Hansen. The petition alleges that the Sisters of Charity had represented to appellant, and to the public, that the persons rendering medical care in the emergency room were doing so on behalf of the hospital, and that the appellant's decedent's death was "directly and proximately caused by the negligence and carelessness of the defendants" in their diagnosis and treatment of decedent's injuries.
Appellee Emergency Professional Service Group, although controlling the emergency room of the hospital, did not hire or select the staff working there, nor did it provide supplies or equipment, bill patients, or keep records taken in such emergency procedures. Appellee Hansen was paid for his services by the Service Group.
Dr. Cleveland testified that, in his opinion, the swollen tissue and external discoloration from decedent's injury would have appeared within a brief period after such injury, and should have been found upon examination. Although there is a near certainty of death when an injury, such as suffered by decedent, goes untreated, Dr. Cleveland stated that "there is no possible way for a physician or anyone else to ascertain with any degree of certainty whether with medical intervention, the individual would have survived or died." Such a finding would require, he concluded, pure conjecture or speculation.
Dr. DeJong, chairman of the Department of Neurology at the University of Michigan medical school, testified for appellant by deposition. He related that contemporary medical standards, both in Ann Arbor, Michigan, and Cincinnati, require that the "vital signs" should have been checked in this kind of case, and that the decedent's vomiting should have given rise to a more complete examination than was performed including in-hospital observation for a period of time. Injuries to the brain may be evidenced by changes in those vital signs. He testified further that while there is practically a 100% mortality rate without surgery for patients with similar injuries as decedent's, " there certainly is a chance and I can't say exactly what — maybe some place around 50% — that he would survive with surgery." With regard to appellee Hansen's failure to examine the knot on decedent's head, or to test his ability to sit up, stand, or walk around, Dr. DeJong opined that "the evaluation concerning these two factors was not complete."
Appellant was prevented from deposing Dr. Robert L. McLaurin by reason of the trial court's granting appellee's application to stay such deposition. The basis of that holding was that Dr. Hansen had discussed this case with Dr. McLaurin; that therefore the privileged communication statute applied.
At the close of appellant's case, the court granted appellees' motion for a directed verdict. The trial court entered separate findings of fact and conclusions of law. Among others, the following findings of fact were made:
"8. The normal hospital procedure was that the nurse would take the vital signs before the patient was taken to the doctor. Dr. Hansen did not take the vital signs and they were not taken in his presence. He had no knowledge of what they were, if taken. When the admission sheet reached the doctor, only the typewritten portions appeared on it."
"15. At the time of the examination of plaintiff's decedent by Dr. Hansen, in the opinion of Dr. Cleveland within reasonable medical certainty, a swollen and discolored area would have existed and would have been apparent and sensitive to palpatation on the back of decedent's head and should have been found on examination at the emergency room."
"21. Dr. Cleveland described the vital signs to be blood pressure, pulse, temperature and respiration, and as a matter of course must be checked where there is injury to the head."
"24. Dr. DeJong said that in the condition of the decedent death was inevitable without surgical intervention. Even with the best surgical intervention no one could say with any certainty that there would be recovery; that there is no possible way for a physician to ascertain with any degree of certainty whether with further medical attention the decedent would have lived or would have died and that it is a matter of pure speculation and guess to render any opinion concerning the chances of recovery."
The trial judge's conclusions of law are as follows:
"From the facts adduced it is the conclusion of the court that the evidence of proximate cause was insufficient to make a prima facie case for submission to the jury as against defendant, Dr. Hansen, his employer, the Emergency Service Group of the Good Samaritan Hospital, or Sisters of Charity of Cincinnati, Inc.
"It is the further conclusion of the court that the professional medical services available at the emergency room and rendered to plaintiff's decedent were under the sole direction and control of the Emergency Professional Service Group and not under the direction and control of the Sisters of Charity of Cincinnati, Inc.
"Based upon the foregoing, it is the conclusion of the court that the defendants were entitled to judgment in their favor as a matter of law."
The trial court's judgment was affirmed by the Court of Appeals. This court is reviewing the case pursuant to the allowance of a motion to certify the record.
Messrs. Lindhorst Dreidame, Mr. Haskell Bazell and Mr. Leo J. Breslin, for appellant.
Messrs. Bloom, Greene, Thurman Uible, Messrs. Rendigs, Fry, Kiely Dennis and Mr. John A. Kiely, for appellees.
Reasonable minds could arrive at differing conclusions as to whether Dr. Hansen was negligent in rendering professional medical services to plaintiff's decedent, and there is sufficient evidence for the submission of that issue to the jury. There is ample evidence in the record supportive of the trial judge's findings of fact that Dr. Hansen did not take the vital signs, that they were not taken in his presence, and that he had no knowledge of what they were, if taken. Those findings, considered together with other expert testimony, provide a basis from which a jury could properly determine that Dr. Hansen's conduct regarding Theodore Cooper did not satisfy the standard that a physician in the community should observe under like circumstances.
The more problematic issue of proximate cause looms from these facts as a reminder of past difficulties this court has experienced with this issue in malpractice cases.
It has been established, and we now reaffirm the principle that: "Even though there is evidence of malpractice sufficient for submission to the jury on that issue, a verdict must be directed in favor of the defendant where there is no evidence adduced which would give rise to a reasonable inference that the defendant's acts of malpractice was the direct and proximate cause of the injury to the plaintiff." Paragraph two of the syllabus in Kuhn v. Banker (1938), 133 Ohio St. 304.
In his opinion in Kuhn, Judge Williams, at page 315, stated that "the patient cannot recover damages unless the act of malpractice is the direct and proximate cause of injury. Loss of chance of recovery, standing alone, is not an injury from which damages will flow." In so stating, Judge Williams disagreed with, and relegates to obiter dictum, the conflicting view expressed in Craig v. Chambers (1867), 17 Ohio St. 254, 261, that "any want of the proper degree of skill or care which diminishes the chances of a patient's recovery * * * would, in a legal sense, constitute injury."
In Hicks v. United States (C.C.A. 4, 1966), 368 F.2d 626, construing Virginia law, it is expressed, at page 632:
"When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainly what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly."
Although the words "substantial possibility" are employed as articulating a standard of proof, the facts in Hicks reveal that plaintiffs' evidence satisfied a much higher standard of proof. The court also stated, at page 632:
"The government further contends that even if negligence is established, there was no proof that the erroneous diagnosis and treatment was the proximate cause of the death, asserting that even if surgery had been performed immediately, it is mere speculation to say that it would have been successful. The government's contention, however, is unsupported by the record. Both of plaintiff's experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert." (Emphasis added.)
A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a "substantial possibility" of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a "chance of recovery" to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic. See Craig v. Chambers, supra ( 17 Ohio St. 254); Hicks v. United States, supra ( 368 F.2d 626); Neal v. Walker (1968), 426 S.W.2d 476; Rogers v. Kee (1912), 171 Mich. 551, 137 N.W. 260, quoting from Craig v. Chambers, supra; Burk v. Foster (1902), 114 Ky. 20, 69 S.W. 1096. The following authorities appear to require the establishment of proximate cause by evidence of probability: Harvey v. Silber (1942), 300 Mich. 510, 2 N.W.2d 483; Schuler v. Berger (1967), 275 F. Supp. 120; Walden v. Jones (Ky. 1969), 439 S.W.2d 571 (distinguishing Neal v. Walker, supra); Connellan v. Coffey (1936), 122 Conn. 136, 187 A. 901.
We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death.
In this case, we are convinced that in order for the jury question to be presented, giving plaintiff's evidence, and inferences reasonably deductible therefrom its most favorable consideration and indulgence, there must be sufficient evidence that Dr. Hansen's negligence denied plaintiff's decedent the probability of survival. Appellant has not produced such evidence.
Dr. Cleveland, plaintiff's witness stated that "there is no possible way for a physician or anyone else to ascertain with any degree of certainty whether with medical intervention, the individual would have survived or died." Dr. DeJong stated that, if untreated, the condition from which Theodore Cooper died had practically a 100% mortality rate without surgery for patients with similar injuries as decedents. He then stated that "there certainly is a chance and I can't say exactly what — maybe some place around 50% — that he would survive with surgery." (Emphasis added.)
Dr. Cleveland's opinion furnishes no suggestion of a probability of survival; Dr. DeJong's opinion bears closer examination. Probability is most often defined as that which is more likely than not. See Clark v. Welch (C.C.A. 1, 1944), 140 F.2d 271, 273; In re Solomon's Estate (1936), 159 Misc. 379, 384, 287 N.Y. Supp. 814, Dr. DeJong's opinion that, with surgical intervention, decedent's expectation of survival was "Maybe * * * around 50%," in our judgment does not provide a basis from which probability can reasonably be inferred. The use of the words, "maybe" and "around," does not connote that there is probability; those words, in the context used, could mean either more than 50%, or less than 50%. Probable is more than 50% of actual. Price v. Neyland (C.A.D.C. 1963), 320 F.2d 674, 678. In view of the requirement that proximate cause, in this type of case, is a matter demanding medical expert testimony, there are no facts available in this case from which a juror could infer that survival would have been more likely, than not, if surgery had been performed. A juror could as reasonably infer from Dr. DeJong's testimony that survival would, under the circumstances, have been somewhat less than probable.
As stated in Davis v. Guarnieri (1887), 45 Ohio St. 470, 490, "It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist."
Plaintiff's cause of action was brought under R.C. 2125.01, under which compensation may be awarded "when death is caused by a wrongful act, neglect or default * * *." (Emphasis added.)
In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.
We find no error in the trial court's determination that appellee Sisters of Charity were not liable for the negligence of appellees Dr. Hansen and Emergency Professional Service Group, should that be established, or in the other issues raised by appellant before this court. Appellee Dr. Hansen was an employee of appellee Emergency Professional Service Group, and was not under the control of the hospital. See Avellone v. St. John's Hospital (1956), 165 Ohio St. 467, 478; Councell v. Douglas (1955), 163 Ohio St. 292, paragraph one of the syllabus. Moreover, the practice of medicine by a licensed physician in a hospital is not sufficient to create an agency by estoppel, as alleged by appellant. Nowhere is "induced reliance" shown by the appellant, as required by Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, to establish such a relationship.
Nowhere in the record does it affirmatively appear that appellant was prejudiced by the trial court's granting appellee's application to stay the taking of Dr. McLaurin's deposition, of which plaintiff also complains. The rule is well settled in Ohio that: "In order to support reversal of a judgment, the record must show affirmatively not only that error intervened but that such error was to the prejudice of the party seeking such reversal." Smith v. Flesher (1967), 12 Ohio St.2d 107, paragraph one of the syllabus. See, also, R.C. 2309.59. Without any suggestion as to how appellant was prejudiced, we need not decide whether the court's action staying the taking of Dr. McLaurin's deposition was error.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
O'NEILL, C.J., SCHNEIDER, CORRIGAN STERN and LEACH, JJ., concur.
HERBERT, J., dissents.