Cooper v. Sisters of Charity of Cincinnati, Inc.

• Citation: 56 O.O.2d 146,272 N.E.2d 97,27 Ohio St.2d 242
• Decision Date: 21 July 1971
• Docket Number: No. 70-459,70-459
• Parties: , 56 O.O.2d 146 COOPER, Admx., Appellant, v. SISTERS OF CHARITY OF CINCINNATI, INC., et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 242

27 Ohio St.2d 242

272 N.E.2d 97, 56 O.O.2d 146

COOPER, Admx., Appellant, v. SISTERS OF CHARITY OF CINCINNATI, INC., et al., Appellees.

No. 70-459.

Supreme Court of Ohio.

July 21, 1971.

Syllabus by the Court

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.

This case originated in the Court of Common Pleas as a wrongful death action brought bt Margaret Cooper, administratrix of the estate of her, son, Theodore Grant Cooper.

Sometime in the early afternon 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 than 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 welling 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. ^*

The appellant filed this action in the Court of Common Pleas against the Sisters of Charity of Cincinnati, Inc., doing business as Good SamaritanHospital; 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 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 descreibed 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.

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