In Cromer v. Children's Hospital, 2015-Ohio-229, the Ohio Supreme Court recently clarified the duty element in medical malpractice cases, holding that in the context of an established physician-patient relationship, consideration of foreseeability is unnecessary to determining whether the patient is owed a duty of care. Further, a jury instruction on a general rule of law should not be given if the instruction is not applicable to evidence presented. Before this clarification, defendants in medical malpractice actions typically sought a general instruction on the foreseeability of harm to define the scope of the duty owed to the patient. In order to demonstrate negligence in general, a plaintiff must demonstrate the foreseeability of the harm in order to prove the defendant owed a duty to that plaintiff. For years, the foreseeability element of duty crept into medical malpractice claims despite the fact that the duty should have been established through the physician-patient relationship. This leads to confusion because foreseeability is generally dealt with in terms of the reasonable person, which in the medical malpractice context should be a reasonable physician.
In Cromer, the appellate court reversed a defense verdict and remanded for a new trial based on the superfluous foreseeability instruction, using the rationale that the physician-patient relationship generally establishing the scope of the duty owed. The Ohio Supreme Court largely agreed, although if found no prejudice in providing a jury instruction based on the correct statement of law. Application of Cromer is not universal–there will be instances in which the foreseeability jury instruction is warranted if the physician-patient relationship is not established and there is a question regarding whether the physician knew or should have known that a chose treatment involved a risk of harm. In most medical malpractice cases, however, the duty prong of the negligence is not contested and Cromer is applicable. Despite this decision, the court determined that there was no material prejudice to the trial court's error in instructing the jury. Interestingly, the Ohio Supreme Court only accepted a single proposition law regarding the applicability of the foreseeability jury instruction in medical malpractice cases. According to Justice Pfeifer, the court could have accepted the review over the prejudice aspect of the appellate court's ruling, but chose to leave that decision as it stood. That distinction is no longer relevant given the scope of the decision.
Regardless, on the surface, the decision should help to streamline trials of medical malpractice cases. In addition to limiting the defendant's ability to confuse issues in the instruction phase of trial, the court clarified that although any given jury instruction is a correct statement of law, a trial court is under no obligation to provide that instruction. In actuality, litigants have little recourse should the trial court provide superfluous instructions as error is only to be found if material prejudice is demonstrated. That's a high hurdle to jump through.
