Update: On January 27, 2015, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
The Supreme Court of Ohio heard oral argument in the case of Cromer v. Children’s Hospital Medical Center of Akron on November 20, 2013. This was a defense verdict in a medical malpractice wrongful death case, reversed on appeal. At issue before the Supreme Court is the appropriateness of the jury instruction given in the case on foreseeability.
After giving the standard medical negligence jury instructions in the case, the trial court also gave general negligence instructions on ordinary care and foreseeability. The jury was charged that in order to find the Hospital negligent, the medical providers had to anticipate that death was likely to result to someone, yet failed to act. The jury found in favor of the Hospital, but the Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding that the foreseeability instruction given in this case was incorrect. Read the background of the case and the particulars of the oral argument here and here.
The case has now been submitted for over a year. I can sympathize with the justices– I had a very hard time writing the post after this argument because I found the defense position so tortured. I teach torts, used to practice in the medical negligence field, and wrote after the argument that the defense argument in the case made no sense whatsoever to me. I doubt all the justices feel that way, but suspect some do. Foreseeability is always a key aspect in general negligence cases, but can’t just be tossed in willy-nilly.
I’d hate to have to author this one.