Bad Jury Instruction Leads to New Trial in Ohio Wrongful Death Malpractice Claim

Suddenly, Ohio is the new go to source for interesting appellate opinions. Last week, the Ninth District Ohio Court of Appeals flipped a malpractice defense verdict, finding that the trial judge provided flawed standard of care jury instructions.

Quick factual summary in this tragic case: A 5-year-old boy is diagnosed with an ear infection. Continued symptoms bring him to the emergency room where clearly a bunch of errors occurred. I have no idea if these errors caused the boy’s death but they were screwing things up left a right. Bad documentation for his treatment, one of the nurses gave him the wrong saline to treat his dehydration, and so forth. He was transferred to the pediatric intensive care unit at Children’s Hospital (by all accounts a good hospital). They found a boy in shock that has progressed to acidosis. The boy is intubated. Doctor orders a echocardiogram. During the echocardiogram, the boy tragically went into cardiac arrest and died. The autopsy revealed the boy died of heart failure that resulted from a pre-existing narrowing of a coronary artery and a viral infection that had spread to his heart. Awful.

The parents filed a medical malpractice lawsuit alleging that their son’s death was caused the negligence of the doctors The hospital maintained that its screw-ups – some of which they admitted – did not cause the boy’s death.


The jury rendered a defense verdict. The parents’ appeal alleged that the trial court improperly instructed the jury on the appropriate standard of care. The instruction was that the jury should consider whether the doctors “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 appellate court found that the plaintiffs were not required to prove foreseeability of the child’s death by the treating professionals in this case and this instruction was fatally flawed.

Honestly, I don’t think this was a close call. I’m not sure how the trial court got it wrong. It any event, both sides will tee it up again.

You can find the opinion in Cromer v. Children’s Hospital here.

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