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Supreme Court analyzes foreseeability of harm in medical malpractice cases;

Recently, the Supreme Court of Ohio heard oral arguments in the case of Cromer v. Children's Hospital Medical Center of Akron. The case addresses the issue of whether the precise harm to the patient in a medical malpractice case must be foreseen by the defendants, in order for negligence to be shown. One case cited by the parties arguing Cromer was Needham, another case involving foreseeability of harm. Having served as trial attorneys in Needham, it is important to note some facts from that case that may be relevant to the outcome in Cromer and its implications on medical malpractice cases.

Needham involved a woman who died from necrotizing pancreatitis following a procedure performed for improper indications. The plaintiffs alleged it was negligent to have performed the procedure, contending the procedure should not have been done. There was no evidence that the procedure was performed in a negligent manner; the complication that developed was a known risk and complication of even a properly performed procedure. Plaintiff's expert argued it was below the standard of care, as defined by medical guidelines, to expose the patient to the risk of a known possible injury by performing a procedure that was inappropriate.

The defense argued for the traditional negligence and proximate cause instruction to the jury, which requires a finding that injury to the patient was "reasonably foreseeable." That terminology was defined as something which in the natural course of events was likely to occur. The problem with that instruction was, the undisputed literature indicated that the complication rate of necrotizing pancreatitis was only on the order of 2-3%. Thus, the risk of a patient developing necrotizing pancreatits was no more than 2-3%, and considerably less than "likely". Therefore, the injury was, by definition, not "reasonably foreseeable."

Plaintiff argued that if the Court were going to instruct the jury in that manner, then it was obligated to direct a verdict in favor of the defense because Plaintiff had not introduced evidence that the injury was "reasonably foreseeable" under that definition. The Court recognized the conundrum and attempted to devise a modified instruction to accommodate the problem. However, the instruction ultimately given to the jury included language requiring the jury to find "the injury" might occur, which was not the initial problematic language, but also was not in accord with the law.

Since foreseeability was made an essential part of the definition of negligence, when the jury found against Plaintiff on negligence, the court of appeals reversed the judgment.

This problem, while extremely critical in medical malpractice cases, is not limited to malpractice claims. Consider the folllowing example: A patron leaves a bar after becoming intoxicated and drives home. What are the chances/probabilities that the driver will cause an accident? The answer to that question is multifactorial. What time is the patron leaving for home? [6:00 p.m. during rush hour? Or, 2:00 a.m.when streets are deserted?] Where does s/he live? How far must s/he drive? Is the bar/home in a populated suburb, or rural country? What are the road conditions? What is the driver's tolerance for alcohol intoxication? [Is the driver an alcoholic?]

All of these, and an almost unlimited number of other factors, play into a determination of what the "foreseeability" is that a drunk driver will cause an accident. But, most importantly, it can be argued in any situation that regardless of any and all of those factors being present, it is never "more likely than not" that an accident will occur, and thus it was not "foreseeable".

How many people drive drunk every day? How many of those drunk drivers get into accidents on any given day? The answer is obviously way below 50%. This will be the standard defense argument in every case. Consistent with Plaintiff's argument in Needham, without a statistician and accident reconstruction and traffic safety experts in every case analyzing the risk factors ans calculating the odds/percentages/probabilities, the defense is probably entitled to a defense verdict. This analysis works for virtually any auto accident scenario. A driver speeding through a school zone, for example. What are the probabilities, i.e., foreseeability, that doing so will result in a student being hit in a cross walk? This highlights the absurdity of the position taken by the defense in Cromer.

Nationwide, there are numerous, notorious examples of physicians committing insurance fraud on a widespread scale by performing unnecessary medical procedures, and injuring a small percentage of patients as well, despite the fact the procedures were technically proficient. Holding in favor of the defense in Cromer would also "greenlight" this abhorrent practice in Ohio.

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