Cromer v. Children's Hosp. Med. Ctr. of Akron

• Decision Date: 27 January 2015
• Docket Number: No. 2012–2134.,2012–2134.
• Parties: CROMER et al., Appellees, v. CHILDREN'S HOSPITAL MEDICAL CENTER OF AKRON, Appellant.
• Court: Ohio Supreme Court

142 Ohio St.3d 257
29 N.E.3d 921
2015 Ohio 229

CROMER et al., Appellees,
v.
CHILDREN'S HOSPITAL MEDICAL CENTER OF AKRON, Appellant.

No. 2012–2134.

Supreme Court of Ohio.

Submitted Nov. 20, 2013.
Decided Jan. 27, 2015.

Hanna, Campbell & Powell, L.L.P., Gregory T. Rossi, Akron, and Rocco D. Potenza, for appellant.

Amer Cunningham Co., L.P.A., Jack Morrison Jr., Thomas R. Houlihan, and Vicki L. DeSantis, Akron, for appellees.

Bricker & Eckler, L.L.P., and Anne Marie Sferra, Columbus, urging reversal for amici curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, urging affirmance for amicus curiae Ohio Association for Justice.

Rhonda Gail Davis and Jacquenette S. Corgan, Akron, urging affirmance for amicus curiae Summit County Association for Justice.

O'CONNOR, C.J.

142 Ohio St.3d 258

{¶ 1} In this appeal, we are asked to consider the role of foreseeability as an element of medical negligence. Specifically, we are asked to determine whether foreseeability of the risk of harm is a factor that must always be considered when determining a medical professional's duties or if it is an irrelevant factor that may never be considered when determining a medical professional's duties. We hold that it is neither.

{¶ 2} Foreseeability is generally relevant to a determination of whether a physician has exercised reasonable care in understanding or determining the existence of a risk of harm associated with a particular course of treatment. But when the parties do not dispute that a physician conducted a risk-benefit analysis prior to treating a patient and do not dispute that the physician understood that the chosen course of treatment carried some risk of harm, a jury instruction regarding the foreseeability of harm need not be given.

29 N.E.3d 925

However, the instruction would not be patently prejudicial, and the judgment is not subject to reversal absent a showing of material prejudice.

{¶ 3} Under the facts of this case, the trial court's decision to provide a superfluous instruction to the jury on foreseeability was not prejudicial error. We therefore reverse the judgment of the court of appeals.

RELEVANT BACKGROUND

{¶ 4} This medical-negligence action arose from the death of Seth Niles Cromer at the pediatric intensive-care unit ("PICU") of Children's Hospital Medical Center of Akron. Melinda Cromer, Seth's mother, and Roderick Cromer Jr., Seth's father, individually and as administrator, brought an action against the hospital, alleging that Seth's death was caused by the combined and individual negligence of multiple hospital employees.

The Treatment Provided

{¶ 5} Much of the evidence was disputed at trial. But it was shown that Seth's parents took him to the hospital's emergency room at approximately 10:44 p.m. on Saturday, January 13, 2007, after Seth, who had been treated earlier in the week for an ear infection, became very ill. At triage, Seth's symptoms and vital signs included an elevated pulse and rate of respiration, a tender abdomen with pressure, pale skin, normal temperature, and normal blood pressure. Seth's condition was assessed as urgent, and upon further examination by emergency-room doctors, Seth was diagnosed as suffering from shock. At approximately 11:30 p.m., the attending emergency-room physician, Brett Luxmore, D.O., ordered the administration of oxygen therapy, intravenous fluids, and intravenous antibiotics. Because Seth's blood pressure had lowered and was unstable by the

142 Ohio St.3d 259

time Dr. Luxmore assessed him, Dr. Luxmore also ordered the administration of epinephrine in an attempt to raise the blood pressure.

{¶ 6} Initial blood tests, taken at midnight, indicated that Seth was suffering from metabolic acidosis, which means that his blood was not delivering adequate oxygen to his tissues. But he was not suffering from respiratory acidosis, which would have meant that his blood was accumulating carbon dioxide. Around 12:30 a.m. on January 14, 2007, the amount of oxygen in Seth's blood rose to a normal level. His blood pressure improved as well, albeit due to the continuous administration of a high dose of epinephrine.

{¶ 7} While Seth was being transferred from the emergency room to PICU around 1:10 a.m., his condition worsened. It was later discovered that the carbon-dioxide levels in Seth's blood had begun to rise. The attending PICU physician, Richard Wendorf, M.D., (1) inserted a central-venous-access catheter in Seth's femoral vein for the instant administration of medication and fluids as well as for rapid assessment of blood-gas levels and fluid balance, (2) inserted an arterial catheter in Seth's femoral artery for continuous real-time monitoring of blood pressure, and then (3) inserted a tube into Seth's trachea to decrease the heart's burden and facilitate ventilation. Dr. Wendorf completed these procedures by 1:46 a.m., 2:00 a.m., and 2:15 a.m., respectively. Seth's condition improved until approximately 3:35 a.m., at which point his blood pressure dropped precipitously and he went into cardiac arrest. Seth died soon after.

The Cromers' Expert Testimony

{¶ 8} The Cromers' expert, Margaret Parker, M.D., agreed that the interventions and treatment that the emergency-room and PICU physicians had ordered were appropriate. However, she did not agree that the timing of the interventions

29 N.E.3d 926

and treatment, particularly intubation, was appropriate.

{¶ 9} Dr. Parker testified that the longer shock is allowed to progress, the harder the strain on the heart, and the harder it is to reverse the problem. Dr. Parker explained that intubation helps to increase blood oxygenation, decrease carbon dioxide levels, and decrease the energy spent on breathing. Dr. Parker testified that the standard of care for medical professionals would mandate immediate intubation upon discovering evidence of severe metabolic and respiratory acidosis. Dr. Parker opined that Seth's respiratory rate of 31 breaths per minute and the blood-test results delivered at 12:19 a.m. were clear evidence of severe metabolic and respiratory acidosis. Dr. Parker concluded that the hospital employees deviated from the standard of care by not intubating Seth until two hours later.

{¶ 10} Specifically, Dr. Parker testified that Dr. Luxmore breached the standard of care by not intubating Seth in the emergency room by 12:30 a.m. and that

142 Ohio St.3d 260

Dr. Wendorf breached the standard of care by not intubating Seth immediately upon his arrival at the PICU. However, Dr. Parker later testified that Dr. Wendorf's decision to place a central venous line prior to intubation was within the standard of care. Dr. Parker also agreed that both doctors considered the risks of both immediate and delayed intubation prior to deciding to implement their particular courses of action. But she did not agree that the doctors appropriately weighed the risks and benefits and did not agree that their clinical judgments regarding the timing of intubation were reasonable.

The Hospital's Expert Testimony

{¶ 11} Dr. Luxmore acknowledged that shock is a life-threatening condition that can lead to death if not properly treated. Dr. Luxmore testified that although intubation could decrease the levels of carbon dioxide in the blood and decrease the strain on a patient's heart, that benefit must be weighed against the risk of causing a sudden drop in blood pressure and cardiac arrest. Because Seth's blood pressure was tenuous but he otherwise had a stable airway and his circulatory system was not building up carbon dioxide while he was in the emergency room, Dr. Luxmore decided that the benefit of intubation at that time was outweighed by the risk that Seth would not survive the process of intubation.

{¶ 12} One of the hospital's experts, Robert Kennedy, M.D., explained that the sedation required to intubate a patient could cause blood pressure to bottom out completely. Dr. Kennedy testified that although intubation would be important in the long run to decrease the strain on the patient, other measures to stabilize the patient take priority in the emergency department if the patient is able to breathe. Dr. Kennedy opined that Dr. Luxmore complied with the standard of care when he decided not to intubate Seth in the emergency department given that Seth's blood circulation required intervention and his carbon-dioxide levels were normal.

{¶ 13} Dr. Wendorf testified that he knew right away that he was going to intubate Seth due to the risk that Seth's condition would worsen, but that immediate intubation without taking certain precautions would have been unnecessarily risky in light of Seth's precarious condition. Another expert, Douglas Wilson, M.D., testified that the importance of relieving the strain on a...