McMullen v. Ohio State University Hospitals

Moyer, C.J.,

dissenting. I dissent from the holding of the majority that the theory of loss of a less-than-even chance of recovery or survival adopted by this court in Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483 , 668 N.E.2d 480 , is not applicable to the case at bar.

In recounting the facts of this case, the majority acknowledges that McMullen was very, very ill in the days preceding October 14, 1990, prior to any acts alleged to have constituted breaches of standards of care required of OSU Hospital employees. The majority recognizes it to be fact that McMullen’s oxygen saturation level “had dropped to a critical level,” and that she was cyanotic and dyspneic on that morning, before hospital nurses attended to her. It concedes that McMullen’s oxygen saturation level did not increase despite infusion of one hundred percent oxygen through the ET tube prior to the nurses’ removal of it.

The evidence thus supports the conclusion that the hypoxia that the majority concludes caused McMullen’s death had begun before any acts of alleged professional negligence. It is not factually clear that McMullen would have responded favorably, and avoided death resulting from oxygen insufficiency, had the nurses not removed the tube or had the residents more quickly reinserted it. At most, their conduct deprived her only of a chance to recover.

The majority concludes that “the negligence of hospital personnel did not merely combine with a preexisting condition to create the ultimate harm,” i.e., McMullen’s death. That this conclusion cannot be suppprted by common sense or the law is demonstrated by the fact that the vast majority of people in this world are not dependent upon properly inserted endotracheal tubes to ensure blood-oxygen levels consistent with life. The majority further states that hospital personnel “set in motion another, independent force that directly caused her death.” (Emphasis added.) That observation in effect changes the test announced in Roberts .

Under traditional tort law, proof of a causal connection not rising to a level of proximate cause is insufficient to justify a finding of liability and award of damages. Prior to Roberts , in cases where the injury complained of was death resulting from medical malpractice, a plaintiff could establish proximate cause sufficient to support liability only by producing evidence that the patient probably would have survived had he or she been treated in accordance with the appropriate standard of care. Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242 , 56 O.O.2d 146 , 272 N.E.2d 97 , syllabus. No distinction was drawn between patients who were healthy before the alleged malpractice and those who *346 already had conditions that jeopardized their continued health. Damages were awarded on an all-or-nothing basis.

In Roberts , this court overruled Cooper and adopted a new theory of recovery, which it described as “loss of a less-than-even chance of recovery or survival,” in which the amount of damages recoverable by a plaintiff equals “the total sum of damages for the underlying injury or death assessed from the date of the negligent act or omission multiplied by the percentage of the lost chance.” Roberts , paragraph two of the syllabus. Accordingly, in lost-chance cases, those plaintiffs who are unable to meet the “but for” test (that the full extent of their injuries would not have occurred but for negligence on the part of medical providers) are not completely barred from recovery. Rather, they receive damages in proportion to the percentage of chance of recovery of which they were deprived.

As generally viewed, in a case involving loss of a less-than-even chance, the plaintiff is not awarded compensation for the death itself. Rather, the plaintiff seeks compensation for the injury of having been deprived of a chance of a more favorable ultimate result despite the existence of a preexisting adverse medical condition. See Roberts, 76 Ohio St.3d at 485 , 668 N.E.2d at 482 (“[T]he plaintiff, who was already suffering from some disease or disorder at the time the malpractice occurred, can recover for his or her ‘lost chance’ even though the possibility of survival or recovery is less than probable.” [Emphasis added.]), citing Keith, Loss of Chance: A Modern Proportional Approach to Damages in Texas (1992), 44 Baylor L.Rev. 759, 760. See, also, King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981), 90 Yale L.J. 1353 , 1354 (“Courts have had difficulty perceiving that a chance of avoiding some adverse result or of achieving some favorable result is a compensable interest in its own right.”); id. at 1382 (“Regardless of whether it could be said that the defendant caused the decedent’s death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right.”). Pursuant to Roberts , the value of such a chance interest is determined by first calculating the full value of damages resulting from the ultimate injury (here, death), and then reducing the damages by multiplying them by the percentage of chance lost by the patient due to the malpractice of the defendant.

The case before us is analogous to a typical loss-of-chance case based on misdiagnosis or nondiagnosis, in which the plaintiff is compensated because tortious conduct deprived him or her of an opportunity to attempt to arrest a disease in its natural progression. This is exactly the situation that occurred in the case at bar when hospital personnel were unable to provide McMullen with adequate oxygen levels through artificial means when her disease had progressed *347 to the point where her respiratory system no longer was functioning naturally on its own.

But today the majority sanctions the award of full damages to McMullen’s estate despite the fact that the trial court clearly found that McMullen had only a twenty-five-percent chance of surviving her medical condition had no medical negligence occurred. Stated differently, the trial court found it to be fact that it was three times as likely that McMullen would not have recovered from her illness as it was that she would have recovered, even had she been treated in full compliance with the required standards of care. Despite this, the majority finds that an award of full damages is appropriate in this case.

The majority simply misinterprets the written opinion of the trial court in characterizing it as holding that the defendant’s failure to adhere to the required standards of care proximately caused McMullen’s death, thereby justifying an award of the full amount of damages arising out of her death.

The court of appeals correctly recognized that it “is clear from the Court of Claims’ discussion of causation that the court chose not to adopt [plaintiffs experts’] testimony that decedent had a better than fifty-percent chance of surviving at the time of University Hospital’s breach of its duty of care,” and that the Court of Claims further found it to be fact that “decedent had less than a fifty-percent chance of surviving prior to University Hospital’s breach.”

The majority instead concludes that the trial court found it to be fact that the anoxic or hypoxic episode of October 14, 1990, was “solely” attributable to negligence on the part of hospital employees. The majority relies upon a brief excerpt from the trial court’s opinion to justify its conclusion. That excerpt is taken, out of context, from the trial court’s discussion of the standard of care required of the OSU resident doctors (and not that part of the opinion dealing with legal causation). In fuller context, that excerpt states:

“In regard to the standard of care expected of defendant’s resident doctors, plaintif[f] offered the videotaped expert medical testimony of Carl Meyer, M.D. (Dr. Meyer), a board certified anesthesiologist. Dr. Meyer testified that defendant’s resident physician, Deborah Campbell, fell below the appropriate standard of care expected of an anesthesiologist in her third year of residency operating under the same or similar circumstances. Specifically, Dr. Meyer testified that Dr. Campbell deviated from the expected standard of care both by virtue of the number of attempts it took her to re-intubate Mrs. McMullen and because she did not seek assistance when she could not- timely complete the re-intubation.

“Upon review, the court agrees with Dr. Meyer and finds that Dr. Campbell’s actions fell below the standard of care expected of a third year resident in anesthesiology when it took her six or more attempts to re-intubate Mrs. McMullen. This delay in re-intubation deprived Mrs. McMullen of proper *348 oxygenation for over twenty minutes. The delay further caused Mrs. McMullen’s oxygen saturation level in her blood to fall to a low of twenty-nine percent. An oxygen saturation level of twenty-nine percent is inconsistent with life and subsequently caused irreversible damage to Mrs. McMullen’s brain, lungs, and heart.” (Emphasis added.)

Several points should be made in regard to this portion of the trial court’s decision. First, the trial court does not state that the removal of the tube, or failure to timely reinsert it, caused McMullen’s death. Rather, in stating that the “delay in re-intubation deprived Mrs. McMullen of proper oxygenation for over twenty minutes,” the trial court does no more than make a factual finding that hospital personnel did not timely perform acts that might, or might not, have restored McMullen’s blood-oxygen levels to adequate levels in time to avoid permanent damage. The trial court makes this statement in support of its conclusion that that failure constituted a violation of the standard of care required of a third-year anesthesiology resident — not in connection with determination of proximate cause.

The trial court then continues by concluding that the “delay further caused Mrs. McMullen’s oxygen saturation level in her blood to fall to a low of twenty-nine percent,” but does not specify what McMullen’s oxygen levels were at the time when the nurses responded to the crisis or the time when the tube should have been correctly reinserted — the earliest times of alleged professional negligence. In the context of the opinion read as a whole, it is clear that the trial court found as fact that McMullen’s oxygen levels had fallen low enough to cause hypoxia before any medical negligence, although the failure to timely reintubate resulted in those levels falling ultimately to a low of twenty-nine percent.

Second, the majority inaccurately states that ,“[o]nce the trial court determined that actions by hospital personnel were inconsistent with decedent’s life, it became wholly unnecessary to inquire as to whether their negligence also increased the risk of physical harm to decedent.” But the trial court did not find that the doctors’ and nurses’ acts were inconsistent with life; rather, it expressly found that “an oxygen saturation level of twenty-nine percent” is inconsistent with continued life. The trial court decision can just as reasonably be interpreted to mean that McMullen had depressed oxygen levels that ultimately would have led to death irrespective of whether negligence occurred subsequently.

Third, the trial court concluded in its first opinion that “prior to the events of October 14, 1990, Mrs. McMullen had a chance of surviving to leave the hospital.” The trial court did not, however, here express an opinion as to whether it agreed with the competing testimony of the appellant’s experts, as opposed to the defense experts, as to the percentage chance of recovery McMullen possessed at the time the professional negligence occurred. Instead, the trial court “specifical *349 ly [left] open for the damages phase of this trial the percentage of the chance of survival that Mrs. McMullen lost as a result of defendant’s agents’ negligence.” Moreover, in the portion of the trial court’s first decision specifically discussing proximate causation, the trial court wrote:.

“Given that the court has concluded that the treatment by defendant’s critical care nurses and defendant’s resident, Dr. Campbell, fell below the standards of care expected of them, the sole remaining issues in the liability phase of this case are whether those deviations proximately caused Mrs. McMullen’s death or proximately caused her to lose any chance of survival.” (Emphasis added.)

Had the trial court meant the earlier excerpt, which the majority cites, as a finding that the trial court found hospital actions to be the sole cause of McMullen’s death, the trial court would not have described the issue of proximate cause as being an issue remaining for resolution.

The question remains how it is to be determined whether, in any individual case of alleged medical negligence, lost-chance principles should be applied (resulting in proportionately reduced damages), as opposed to traditional proximate causation analysis (resulting in award of full damages). Professor King offered such guidelines in a 1998 followup to his seminal 1981 article in the Yale Law Journal, supra (which the Roberts court cited with approval), by suggesting that the loss-of-chance doctrine should be applied where the following criteria are present: “(1) the defendant tortiously failed to satisfy a duty owed to the victim to protect or preserve the victim’s prospects for some more favorable outcome; (2) either (a) the duty owed to the victim was based on a special relationship, undertaking, or other basis sufficient to support a preexisting duty to protect the victim’s likelihood of a more favorable outcome, or (b) the only question was how to reflect the presence of a preexisting condition in calculating the damages for a materialized injury that the defendant is proven to have probably actively, tortiously caused; (3) the defendant’s tortious conduct reduced the likelihood that the victim would have otherwise achieved a more favorable outcome; and (4) the defendant’s tortious conduct was the reason it was not feasible to determine precisely whether or not the more favorable outcome would have materialized but for the tortious conduct.” King, “Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine (1998), 28 U.Mem.L.Rev. 491, 495. Professor King’s guidelines are consistent with our decision in Roberts and should be followed in this case.

Even if the majority were correct that the negligence of OSU Hospital had a “direct causal relationship” to McMullen’s death, lost-chance principles should be applied pursuant to item 2(b) of King’s guidelines.

Since Roberts , this court has not decided a medical negligence case involving a loss of greater than even chance of recovery. Nor has this court yet entertained *350 the argument that the total amount of damages awarded in such a case should be adjusted to reflect a patient’s preexisting conditions.

Assuming arguendo that the trial court had accepted the testimony of plaintiffs expert that McMullen had a sixty-percent chance of achieving a full recovery had she not been subjected to hospital negligence, i.e., a greater than even chance of recovery, we would be faced with the question whether, since the adoption of Roberts , an award of damages should be governed by loss-of-chance principles as opposed to the all-or-nothing rules established by traditional tort law where a patient has significant preexisting life-threatening conditions.

However, in Roberts this court did state that in loss-of-chance cases, “ ‘the defendant should be subject to liability only to the extent that he tortiously contributed to the harm by allowing a preexisting condition to progress or by aggravating or accelerating its harmful effects, or to the extent that he otherwise caused harm in excess of that attributable [solely] to preexisting conditions.’ ” (Emphasis added.) Roberts, 76 Ohio St.3d at 489 , 668 N.E.2d at 484 , quoting King, supra, 90 Yale L.J. at 1360. See, also, id. at 1387 (noting that under the traditional, all-or-nothing rule, by compensating the fifty-percent-plus chance as though it were one hundred percent, courts overcompensate the plaintiff, and suggesting that this result is “as questionable as the extreme reached when the all-or-nothing concept denies any redress for the destruction of a not-better-than-even chance”). See, also, Kieffer, The Case for Across-the-Board Application of the Loss-of-Chance Doctrine (1997), 64 Def.Couns.J. 568, 569 (arguing that application of the loss-of-chance doctrine to better-than-even cases would “allow defendants to limit damages to those actually flowing from their negligence, while at the same time allowing courts to reach results that intellectually are more credible,” thereby balancing the equities between plaintiffs and medical professional defendants). Cf. Ellis, Note, Loss of Chance as Technique: Toeing the Line at Fifty Percent (1993), 72 Tex.L.Rev. 369 (arguing that the loss-of-chance doctrine should be confined to cases presenting loss of a less-than-even chance, and in favor of an award of full damages where the patient had a greater-than-even chance of recovery).

In conclusion, the trial court’s determination of the facts compels the conclusion that the executor of McMullen’s estate can recover damages in this case only under the Roberts theory of loss of less-than-even chance. I would affirm this holding of the court of appeals.

Cook and Lundberg Stratton, JJ., concur in the foregoing dissenting opinion.