Ohio Supreme Court Ruling Benefits Patient

Without considering merits of the case, the Ohio Supreme Court ruled, December 8th, that a patient in a medical malpractice case could receive a new trial in a lawsuit against a physician for partial damages based on the  “loss of chance” theory of recovery.

 The Ohio and American Osteopathic Associations, the Ohio Hospital Association, and the Ohio State and American Medical Associations, joined together in filing an amicus brief in this case last September, opposing expansion of the "loss of chance doctrine."  The OOA, OHA and OSMA have been conducting a "Court Watch" since 2005, making joint amicus appearances in Ohio Supreme Court appeals that could adversely affect Ohio's tort reform law. 

 "While this is not good news for the physician (since he will be subjected to a new trial),” said OOA Legal Counsel Eric Jones, “it is a better result for the medical community at large than having a bad decision from the Ohio Supreme Court that expands the loss of chance doctrine in Ohio."

As a result of dismissing the case from Allen County, the Supreme Court, in a split 5-2 decision, ruled that the patient can continue to pursue his claims.  Justices originally agreed to hear the case solely on the question of whether a jury must be told it should consider “loss of chance” damages in the event it rejects a claim that an injury was “more probably than not” a result of malpractice.

 The patient in this case went to the emergency department at St. Rita’s Medical Center in Lima, March 30, 2005 showing symptoms of a minor stroke.  Three days after his discharge, and allegedly without being told to take aspirin or other preventive medicine, he sustained a second, more severe stroke that left him permanently disabled, losing his chance of recovery.

 An Allen County common pleas court jury returned a verdict in favor of the physician, ruling the patient had not shown that the physician’s medical error was the proximate cause of the second stroke.  The 3rd District Court of Appeals then reversed the trial court’s judgment and remanded the case for a new trial, ruling that the judge should have granted the patient’s request to instruct jurors to also consider a partial damage award based on finding of loss of chance that in addition to considering the claim for full damages, based on proximate causation.

Justices Maureen O'Connor and Judith Lanzinger recused themselves from the case. Chief Justice Brown appointed Appellate Judges Scott Gwin (5th District) and Gary Tyack (10th District) as substitutes.  Justices Brown, Paul Pfeifer, Robert Cupp, and Judges Gwin and Tyack voted to dismiss.  Justices Evelyn Stratton and Terrence O’Donnell dissented.

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