Uncertain Causation and Lost Chance in Ohio

Woessner v. Toledo Hosp., 62 N.E.3d 204 (Ohio 6th Dist. 2016)

This case involved a patient who was born with a life-threatening medical condition. The patient arrived at a hospital’s emergency room complaining of severe abdominal pain associated with that condition. Instead of referring the patient to a liver transplant facility for specialized treatment, his doctors carried out a series of conservative procedures, which proved ineffectual. As a result, the patient developed complications from which he died. In the ensuing action for wrongful death, there was no genuine dispute over whether the doctors committed malpractice. Moreover, malpractice was assumed to be present in the doctors’ failure to ensure that the patient receives the specialized treatment he acutely needed. The defendants, however, claimed that the patient was doomed to die from his preexisting condition, for which they were not responsible. In tune with that claim, they argued that the plaintiffs failed to prove causation by a preponderance of the evidence.

According to the defendants, the plaintiffs could only sue them for the patient’s lost chances to survive, based on the Ohio precedent, Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480 (Ohio 1996) (that overruled Cooper v. Sisters of Charity of Cincinnati, Inc., 272 N.E.2d 97 (Ohio 1971)). The plaintiffs, for their part, invoked another precedent which held that “a plaintiff who may very well die of an underlying condition has a traditional malpractice case when discrete acts of negligence bring about the death, even though it is conceivable that death would have ensued anyway.” McMullen v. Ohio State Univ. Hosps., 725 N.E.2d 1117 (Ohio 2000); Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 915 N.E.2d 361 (Ohio 9th Dist. 2009).

The Court of Appeals for the 6th District of Ohio agreed with the defendant. Woessner v. Toledo Hosp., 62 N.E.3d 204 (Ohio 6th Dist. 2016). This decision proceeded from the premise that “Expert testimony with respect to proximate cause [more accurately described as “cause in fact” – A.S.] must be stated in terms of probability” (citing Stinson v. England, 633 N.E.2d 532 (Ohio 1994)). Another precedent relied upon by the court held that –

“In a medical malpractice action premised on a failure to properly diagnose or treat a medical condition which results in a patient’s death, the proper standard of proof on the issue of causation is whether with proper diagnosis and treatment the patient probably would have survived.” Miller v. Paulson, 646 N.E.2d 521 (Ohio 10th Dist.1994).” According to that precedent, “Probably is defined as ‘more likely than not’ or a greater than fifty percent chance.”

Based on these precedents, the court ruled that “Because of the complications involved with the [patient’s] underlying liver disease, expert testimony that the ischemia [and the doctors’ failure to properly address this condition – A.S.] was “the principal reason” the patient “wound up dying” is not sufficient.” The court held that the plaintiffs’ best evidence showed 40% chance of the patient’s survival and that this lost chance was their only plausible cause of action.