Foreseeability Instruction Not Warranted in Established Physician-Patient Relationship

A five-year-old boy presented at a hospital’s emergency room with an elevated pulse and rate of respiration, a tender abdomen with pressure, pale skin, normal temperature, and normal blood pressure. Upon further examination by emergency-room doctors, he was diagnosed as suffering from shock. The attending emergency-room physician ordered the administration of oxygen therapy, intravenous fluids, and intravenous antibiotics. Because the boy's blood pressure had lowered and was unstable by the time the attending ER physician assessed him, he also ordered the administration of epinephrine in an attempt to raise his blood pressure.


Initial blood tests indicated that the boy was suffering from metabolic acidosis, meaning 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. Within two hours of his arrival in the ER, the amount of oxygen in his blood rose to a normal level. His blood pressure improved as well, albeit due to the continuous administration of a high dose of epinephrine.


About two and a half hours after his arrival in the ER, while the boy was being transferred from the ER to the pediatric intensive-care unit (PICU), his condition worsened. It was later discovered that the carbon-dioxide levels in his blood had begun to rise. The attending PICU physician (1) inserted a central-venous-access catheter in the boy'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 the boy's femoral artery for continuous real-time monitoring of blood pressure, and then (3) inserted a tube into the boy's trachea to decrease the heart's burden and facilitate ventilation. The attending PICU physician completed these procedures within 40 minutes of his transfer to the PICU. The boy's condition improved until approximately five hours after his arrival at the ER, at which point his blood pressure dropped precipitously and he went into cardiac arrest. The boy died soon after.


The boy’s parents brought a medical negligence action against the hospital, alleging that the boy's death was caused by the combined and individual negligence of multiple hospital employees. At trial, the parents’ expert agreed that the interventions and treatment that the emergency-room and PICU physicians had ordered were appropriate. However, the expert did not agree that the timing of the interventions and treatment, particularly intubation, was appropriate. The parents’ expert testified that the standard of care for medical professionals would mandate immediate intubation upon discovering evidence of severe metabolic and respiratory acidosis. She opined that the boy's respiratory rate of 31 breaths per minute and the blood-test results delivered while he was still in the ER were clear evidence of severe metabolic and respiratory acidosis. The parents’ expert concluded that the hospital employees deviated from the standard of care by not intubating the boy until two hours later. Specifically, the parents’ expert testified that the attending ER physician breached the standard of care by not intubating the boy in the emergency room shortly after receiving the blood-test results and that the attending PICU physician breached the standard of care by not intubating the boy immediately upon his arrival at the PICU. However, the parents’ expert later testified that the attending PICU physician's decision to place a central venous line prior to intubation was within the standard of care. The parents’ expert 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 disagreed that the doctors appropriately weighed the risks and benefits and disagreed that their clinical judgments regarding the timing of intubation were reasonable.


After the close of evidence, the Summit County Court of Common Pleas instructed the jury including the following instruction pertaining to foreseeability:


In deciding whether ordinary care was used, you will consider whether the defendant should have foreseen under the attending circumstances that the natural and probable result of an act or failure to act would cause [the boy]'s death.


The test for foreseeability is not whether the defendant should have foreseen the death of [the boy] precisely as it happened. The test is whether under all the circumstances a reasonably cautious, careful, prudent person would have anticipated that death was likely to result to someone from the act or failure to act.


If the defendant by the use of ordinary care should have foreseen the death and should not have acted, or if they did act, should have taken precautions to avoid the result, the performance of the act or the failure to act to take such precautions is negligence.


The jury returned a verdict in favor of the hospital. The trial court entered judgment on the jury verdict and denied the parents' motion for a new trial. The Court of Appeals reversed and remanded, holding that the trial court's instruction on the foreseeability of the risk of harm during medical treatment constituted an incorrect statement of law that required reversal.


The Supreme Court of Ohio reversed the appellate court and remanded. The court held that the foreseeability instruction was not warranted, however, the jury instructions regarding the applicable standard of care were not misleading as a whole and, thus, not prejudicial.


The foreseeability instruction was not warranted. The court held that in the context of an established physician-patient relationship, there was no need to independently determine whether the patient fell within the class of people who could foreseeably be injured, because the existence of the physician's duty to that patient was already clear. Thus, foreseeability was irrelevant to a determination of a physician's duty. The court reasoned that the treating physicians were not accused of failing to foresee that the negative effects of the progression of shock and the strain on a patient's cardiovascular system were risks of delaying the intubation of a patient in shock. They admitted to having knowledge of these risks and weighing them against the risks and benefits of performing other precautionary measures prior to intubation. Thus, the parties did not dispute that the treating physicians foresaw that there was a risk of harm associated with their choice of emergency treatment. Instead, they debated whether the physicians reasonably appreciated the magnitude of the risk and properly weighed it in their risk-benefit analyses. Accordingly, the question remaining was whether the physicians' chosen course of treatment was reasonable in light of the risks. There was no question for the jury in this case regarding the foreseeability of the risk of harm because the medical professionals were aware that their chosen chronology of treatment of the boy's shock carried with it some risk of harm. Thus, the instruction regarding the foreseeability of harm was not necessary in light of the facts and arguments presented in this case.


The jury instructions regarding the applicable standard of care were not misleading as a whole and, thus, were not prejudicial. The trial court's decision to provide a superfluous instruction to the jury on foreseeability was not prejudicial error. The instructions repeatedly defined “reasonable” and “ordinary care” solely in the context of a “reasonable hospital,” a “reasonably careful physician,” and “hospitals, physicians and/or nurses of ordinary skill, care and diligence.” The court concluded that the jury instructions regarding the applicable standard of care, as a whole, were not misleading. By requiring reversal based on the trial court's mere inclusion of a foreseeability instruction, the appellate court erroneously presumed that the error was prejudicial instead of determining whether there was a clear indication on the face of the record that the instruction prejudiced the parents' substantial rights. The jury's answers to the negligence and the causation interrogatories, both in favor of the defense, were not inconsistent with one another, nor were they inconsistent with the general verdict. Further, the foreseeability instruction in this case was drawn from the actual facts presented, but was mere surplusage. Accordingly, the record in this case did not establish that the unneeded jury instruction on foreseeability prejudiced the parents' substantial rights, and the appellate court's reversal was not justified. The court reasoned that a jury instruction on a general rule of law, even if correct, should not have been given if the instruction was not applicable to the evidence presented. But the inclusion of an unnecessary instruction did not constitute reversible error absent a showing of material prejudice. Because such a showing was not provided in this case, the appellate court should not have disturbed the jury's verdict.


The Supreme Court of Ohio reversed the judgment of the appellate court and remanded the cause to the appellate court to consider the parents’ assignments of error regarding the manifest weight of the evidence and the failure to grant the motion for a new trial, which the appellate court previously held were mooted by its disposition.


See: Cromer v. Children's Hosp. Med. Ctr. of Akron, 2015 WL 361062, 2015-Ohio-229 (Ohio, January 27, 2015) (not designated for publication).


See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care


See also Medical Law Perspectives, March 2014 Report: Blood Draws, Testing, Transfusions: Venipuncture Injury, Inaccurate Results, Tainted Blood - The Liability Risks


See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues