Porter v. Lima Memorial Hosp.

• Decision Date: 03 August 1993
• Docket Number: 92-3017,Nos. 92-3009,s. 92-3009
• Citation: 995 F.2d 629
• Parties: Rachel A. PORTER, Plaintiff-Appellant, Cross-Appellee, v. LIMA MEMORIAL HOSPITAL, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 629

995 F.2d 629

Rachel A. PORTER, Plaintiff-Appellant, Cross-Appellee, v. LIMA MEMORIAL HOSPITAL, Defendant-Appellee, Cross-Appellant.

Nos. 92-3009, 92-3017.

United States Court of Appeals Sixth Circuit.

Argued Dec. 8, 1992.

Decided June 3, 1993.

As Amended on Denial of Rehearing and Rehearing En Banc Aug.

3, 1993.

Robert P. Roth (argued and briefed), Portnoy, Leader, Pidgeon & Roth, Bloomfield Hills, MI, for plaintiff-appellant cross-appellee.

E. Thomas Maguire, Timothy R. Krugh (argued and briefed), Robison, Curphey & O'Connell, Toledo, OH, for defendant-appellee cross-appellant.

Before: MARTIN and MILBURN, Circuit Judges; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

On December 1, 1979, the automobile in which Liesl Fitzenrider was traveling spun out of control, bumped another car, and slid off the roadway. Liesl, then an infant three months of age, was thrown to the floor of the car while in the arms of her mother, Rachel Fitzenrider, now Rachel Porter, who has brought suit on her daughter's behalf. Rescue squad personnel examined Liesl at the accident scene and found nothing seriously wrong with her. A rescue squad member then held Liesl in his arms while Liesl and her mother were transported to defendant Lima Memorial Hospital (Lima), the hospital nearest the scene of the accident.

Plaintiff charged the attending doctor, Iqbal Singh, and the Lima staff with negligence in allowing Liesl's initial spinal injury to degenerate and cause paralysis. Plaintiff won a 4.2 million dollar verdict in an initial trial, but the trial judge, while denying Lima's motion for a judgment notwithstanding the verdict, ordered a new trial. During the second trial, the jury found Lima not liable for plaintiff's tragic injuries. Mrs. Porter, on behalf of Liesl, appeals the grant of a new trial in the first trial and charges error with respect to the second trial. Lima cross-appeals the denial of judgment n.o.v. in the first trial. Jurisdiction is appropriate based upon diversity of citizenship.

The injury was initiated in a Volkswagen Beetle driven by Mrs. Porter's friend. The rescue squad took Liesl to the Lima emergency room where she lay on a hospital table awaiting examination by emergency room physician, Dr. Singh. Registered nurse Pam Ogelsbee took Liesl's vital signs, and recorded them on the medical chart. She reported them to Dr. Singh, upon his arrival, for examination and treatment.

At this point, the only observable sign of injury was a small bruise or hematoma on the right side of Liesl's head. Nurse Ogelsbee reported this, too, to Dr. Singh, and he then assumed primary responsibility for treating Liesl. Dr. Singh found all of Liesl's extremities functioning normally and ordered several laboratory tests and numerous x-rays. He did not, however, order any spinal x-rays and failed to diagnose spinal instability. Nurse Ogelsbee did not repeat the vital signs during or after Dr. Singh's examination, claiming that she received no doctor's instructions in this regard. After reviewing the x-rays and lab tests, Dr. Singh discharged Liesl and provided her mother with written instructions concerning her head injuries.

After Dr. Singh discharged Liesl, she and her mother remained at the hospital while awaiting a ride home. During a period of more than two hours, Liesl apparently displayed no additional signs of serious injury which were observed by her mother. Mrs. Porter did report to one of the nurses at Lima a short period of irregular breathing. The nurse examined Liesl, determined that nothing was wrong, and returned Liesl to her mother. The mother (Mrs. Porter) made no further inquiries; she testified that the nurse told her that "babies just breathe funny." ¹ When she reached her home, the mother noted that Liesl's condition was worsening and she then took Liesl to Defiance Hospital, where doctors determined, for the first time, that Liesl's legs were not moving. They ordered numerous x-rays and lab tests, and eventually another hospital staff doctor diagnosed a subluxation at her first and second lumbar vertebrae, which resulted in Liesl's paralysis from the waist down. The experts who testified in the trials apparently agree that Liesl suffered paralysis sometime after Dr. Singh's examination and before her arrival, hours later, at Defiance Hospital.

Dr. Singh was the only person authorized to (1) conduct a medical examination; (2) order medical treatment and diagnostic studies; (3) arrive at a diagnosis; and (4) order hospitalization or discharge. ² Consequently, the experts also appear to agree that Dr. Singh was the primary person who could have prevented the spinal injury by diagnosing Liesl's unstable spine before it became critically injured. Dr. Singh has settled this medical malpractice case for $2,500,000.

We shall apply Ohio medical malpractice law in our review of the denial of judgment n.o.v., as well as the grant of a new trial, and with respect to claimed error in the second trial.

I. PROXIMATE CAUSE

Proximate cause is the crucial issue upon which Lima's asserted liability depends. There is evidence that both Dr. Singh and the Lima nurses breached a duty of care, and this evidence of negligence is sufficient to survive Lima's motions for judgment n.o.v. or for a new trial. The pertinent question is whether the nurses' conduct proximately caused Liesl's paralysis. This case presents close and difficult questions of hospital liability. We recognize some difficulty of proof because of an inexplicable delay of nine years before this suit was commenced.

The legal requirements for proximate cause showings in Ohio are clear and they are strict. In order to prove proximate cause, "plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the [injury]." Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97, 103 (1971) (emphasis in original). The court defined "probability" as "that which is more likely than not ... [p]robable is more than 50% of actual." Id. 272 N.E.2d at 104. Ohio courts have consistently reaffirmed Cooper as stating the current law on proximate cause in malpractice actions. ³ See, e.g., Albain v. Flower Hosp., 50 Ohio St.3d 251, 553 N.E.2d 1038 (1990); Shumaker v. Oliver Cannon & Sons, Inc., 28 Ohio St.3d 367, 504 N.E.2d 44 (1986); Galletti v. Burns Int'l, 74 Ohio App.3d 680, 600 N.E.2d 294 (1991).

Ohio courts have strictly construed the requirement of probability, and have demanded that expert testimony meet this standard to sustain the necessary showing of proximate cause. Plaintiff vigorously contests "the proposition that the law requires specific magical words out of an expert witness which state that a nurse's negligence was, in probability, a proximate cause of Plaintiff's injury." (Appellant's Reply Brief at 2-3.) Although perhaps not requiring "specific magical words," we do interpret Ohio law as requiring expert testimony to be in terms of probability.

In Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), the plaintiff had died from head injuries sustained when a truck hit him while riding his bicycle. For purposes of appeal, the court assumed the evidence was sufficient to show that the treating physician had been negligent in not diagnosing a serious head injury and in not operating pursuant to that diagnosis. The critical issue of proximate cause revolved around whether the patient would have survived even if the doctor had diagnosed the problem and ordered the operation. Addressing plaintiff's chances of survival, the expert testified that "the condition from which Theodore Cooper died had practically a 100% mortality rate without surgery ... 'there certainly is a chance and I can't say exactly what--maybe some place around 50%--that he would survive with surgery.' " Id. 272 N.E.2d at 104. Noting that the expert conditioned his opinion with the words "around" and "maybe," the court concluded that an inference that survival was probable was no more legitimate than an inference that survival was unlikely. Id. The court held that the testimony was insufficient under Ohio law to allow a reasonable juror to infer proximate cause.

In Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 504 N.E.2d 44 (1986) (per curiam), ⁴ the plaintiff contended that exposure to various chemicals at work caused his terminal cancer. Plaintiff's expert had testified that "with a reasonable degree of probability, it is likely that this combination of those three chemicals could have caused the cancer." Id. 504 N.E.2d at 46 (emphasis by the court). The court held that this testimony fell below the level of certainty required of medical experts in Ohio, and, furthermore, found the trial court to be in error in admitting this evidence. The plaintiff's verdict was accordingly reversed.

"[P]ast cases have uniformly held that in order for the claimant's medical testimony to create a question of proximate cause for the jury, the testimony must establish a probability, not a mere possibility, of such a causal connection." Galletti v. Burns Int'l, 74 Ohio App.3d 680, 600 N.E.2d 294, 296 (1991). The use of phrases such as "could be," "could very well be," or "could possibly be," is generally fatal to allegations of proximate causation. Id.

In examining the conduct of the nursing staff at Lima, we have searched the record carefully with the Ohio proximate cause requirements in mind. The plaintiff has alleged a breach of duty in four respects: (1) failure to repeat the vital signs and to report this to Dr. Singh; (2) failure to take Liesl's blood pressure; (3) failure to notify Dr. Singh about the baby's short period of abnormal breathing; and (4) failure to immobilize Liesl. We conclude that plaintiff provided insufficient evidence on proximate causation relating to allegations (2) and (3). Consequently, we now look to evidence...