Can a Jury Make Up Their Own Theory of Negligence?
There is an interesting medical malpractice case on appeal in Ohio - Longbottom v. Mercy Hospital - that I thought deserved a quick blog post today. The case poses some interesting questions on how far outside the box of the case a jury can go in making inferences that were not directly raised by the parties.
The facts are awful and it pains me to write them out. A nine year old boy suffered a head injury at his home. He went to the emergency room. The doctors there checked him out, but did not give him a CT scan even though, you know, it is nine year-old boy with potentially a serious head injury. He went home and went to sleep. The boy woke up in the middle of the night, throwing up and gasping for air. He suffered brain damage and now walks with a limp as a result of a blood clot.
The big issue was, not surprisingly, whether the decision not to order a CT scan was a breach of the standard of care. Simple malpractice case, really. Plaintiffs' experts did not offer opinion testimony as to whether the doctor had properly instructed the parents on monitoring the child or that such a failure was the proximate cause of the injuries.
But here is the thing: juries do the craziest things. Again, the plaintiffs tried the case on the sole theory that the ER doctor should have ordered a CT scan during the emergency room visit. The jury rejected this argument but substituted it own new theory that the ER doctor failed to instruct the plaintiffs about head injuries. The jury awarded plaintiffs $2.7 million.
Incredibly to me, the trial court was cool with this as was the Ohio Court of Appeals:
As to the element of proximate cause, we note that [plaintiffs] did not present an expert witness at trial who testified to a reasonable degree of medical certainty that [the ER doctor's] failure to instruct [the boy's] parents to follow the instructions in the head injury pamphlet was the proximate cause of [his] injuries. Nevertheless, we believe that there was sufficient evidence presented at trial from expert and lay witnesses to allow the jury to find that [the ER doctor's] negligence in failing to warn [his] parents about the possibility of a significant head injury and to instruct them on how to observe for [the boy] for such an injury upon his discharge was the proximate cause of [his] injuries.
You can put this on the list of things never written by a Maryland appellate court. Anyway, I'll be very interested to see what the Ohio Supreme Court does with it.