[Cite as Cromer v. Children's Hosp. Med. Ctr. of Akron, 2016-Ohio-7461.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

SETH NILES CROMER, MINOR CHILD,                           C.A. No.         25632
DECEASED, et al.

        Appellants
                                                          APPEAL FROM JUDGMENT
        v.                                                ENTERED IN THE
                                                          COURT OF COMMON PLEAS
CHILDREN'S HOSPITAL MEDICAL                               COUNTY OF SUMMIT, OHIO
CENTER OF AKRON                                           CASE No.   CV 2008 07 4775

        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: October 26, 2016



        CARR, Judge.

        {¶1}    Appellants, Melinda Cromer, individually; and Roderick Cromer, Jr., individually

and on behalf of their late son Seth; appeal from a judgment entered on a jury verdict for

Children’s Hospital Medical Center of Akron (“the hospital”) on the Cromers’ medical

malpractice claim against it.       This Court originally reversed the judgment for the hospital

because the trial court incorrectly instructed the jury about the hospital’s standard of care.

Cromer v. Children's Hosp. Med. Ctr. of Akron, 9th Dist. Summit No. 25632, 2012-Ohio-5154.

The Ohio Supreme Court reversed that judgment, however, reasoning that the record failed to

demonstrate that the Cromers suffered material prejudice from the improper instruction. Cromer

v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 45. Therefore, it

reversed this Court’s judgment and remanded the matter for this Court to address the Cromers’
                                                2


remaining two assignments of error. Id. at ¶ 46. Upon review of those assignments of error, this

Court reverses and remands the trial court’s judgment for a new trial.

                                                I.

       {¶2}    The facts underlying this medical malpractice case, which were recited in more

detail in the decision of the Ohio Supreme Court and this Court’s original opinion, involve the

death of five-year-old Seth Cromer while he was a patient at the hospital. Seth’s parents brought

him to the hospital on the evening of January 13, 2007, because, although he had been taking

antibiotics for several days for an ear infection, his physical condition had worsened. Seth was

assessed by a triage nurse and later moved to an examination room, where a doctor concluded

that he was in shock. Seth was moved to another exam room that was closer to the nurses’

station and had more equipment to monitor his vital signs.

       {¶3}    The doctor ordered the nursing staff to give Seth normal saline fluids

intravenously. The evidence was not disputed, however, that a hospital nurse mistakenly gave

Seth D5 ½ normal saline, which was not the correct or optimal fluid to treat his dehydration.

When the emergency room doctor realized that Seth was receiving the wrong type of saline

solution, he immediately ordered that the IV bag be switched to the correct fluid and ensured that

Seth began receiving normal saline solution. The parties would later dispute, however, how

much of the D5 ½ saline solution Seth received and what, if any, negative impact it had on his

condition.

       {¶4}    Seth also received epinephrine intravenously while in the emergency room, and

the parties would also later dispute whether the epinephrine helped or harmed his condition.

Although Seth initially appeared to show signs of improvement because he became more alert,

the doctor later realized that Seth’s body was attempting to compensate for the shock and his
                                                  3


physical condition was actually declining. Consequently, the emergency room doctor ordered

that Seth be transferred to the pediatric intensive care unit (“PICU”).

       {¶5}    Shortly after Seth arrived in the PICU, the critical care doctor determined that he

would probably need to be intubated and placed on a ventilator to decrease the carbon dioxide

levels in his blood. The doctor first placed a central venous line to continue administering

epinephrine and other medications, if needed. The doctor then placed an arterial line to draw

blood for testing, which revealed that Seth was suffering from significant acidosis. Next, the

doctor intubated Seth and ordered an echocardiogram. During the echocardiogram procedure,

Seth went into cardiac arrest. Cardiopulmonary resuscitation was unsuccessful and Seth was

pronounced dead at 4:05 a.m.

       {¶6}    The Cromers filed this medical malpractice action against the hospital and several

individual defendants. The individual defendants were later dismissed and the case proceeded to

trial against the hospital. Although all the experts agreed that Seth died from coronary failure,

they disputed whether his heart failure was caused by an unknown, pre-existing heart defect or

the hospital’s failure to properly treat septic shock that had developed from Seth’s viral infection.

       {¶7}    According to the results of Seth’s autopsy, he died of heart failure that was the

combined result of a pre-existing narrowing of his left coronary artery and a viral infection that

had spread to his heart. The hospital’s experts testified that a pre-existing heart problem caused

Seth’s acidosis and eventual death and that there was nothing more that the treating physicians

and hospital staff could have done to save his life.

       {¶8}    The Cromers’ medical expert testified, however, that a pre-existing heart

condition was not the cause of Seth’s death. Instead, the Cromers’ expert opined that Seth died

because the hospital failed to appropriately treat him, so his septic shock progressed to severe
                                                 4


cardiac and respiratory failure. She testified that the hospital departed from the standard of care

by not intubating Seth sooner, by not assessing him and giving him intravenous fluids sooner,

and by giving him the wrong intravenous fluids.

       {¶9}    After the presentation of evidence, the trial court submitted written interrogatories

and general verdict forms to the jury. In response to the first interrogatory about whether the

plaintiffs had proven that the hospital was negligent, the jury answered, “no.” Although the trial

court had instructed the jury not to answer the remaining interrogatories if it found that the

hospital was not negligent, it responded, “no” to an additional interrogatory about whether the

hospital’s negligence had caused Seth’s death. The jury also returned a general verdict for the

hospital. The trial court accepted the jury’s verdict and entered judgment for the hospital.

       {¶10} The Cromers later moved for a new trial, asserting that the judgment was against

the manifest weight of the evidence and that the jury interrogatories were inconsistent, but the

trial court denied their motion. The Cromers appealed and raised three assignments of error.

Because this Court originally sustained their first assignment of error, it did not reach the merits

of their remaining assignments of error because they had been rendered moot. Following the

reversal and remand by the Ohio Supreme Court, this Court now reviews the Cromers’ second

and third assignments of error.

                                                II.

                       APPELLANTS’ ASSIGNMENT OF ERROR II

       THE JURY’S VERDICT IN THIS MATTER WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                       APPELLANTS’ ASSIGNMENT OF ERROR III

       THE COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION
       FOR A NEW TRIAL.
                                                 5


        {¶11} The Cromers’ second assignment of error is that the jury’s verdict was against the

manifest weight of the evidence. Because that argument is also raised through their third

assignment of error, this Court will address them together. The Cromers’ third assignment of

error is that the trial court erred in failing to grant a new trial because the jury’s answers to the

special interrogatories were inconsistent and/or because the jury’s verdict was against the weight

of the evidence. This Court will confine its review to the Cromers’ manifest weight argument

because it is dispositive.

                             Manifest Weight Standard of Review

        {¶12} We begin by clarifying the standard under which we review this assignment of

error. The parties argue this assigned error under the civil manifest weight standard as set forth

in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), but the Ohio Supreme Court

has since explained that the “competent, credible evidence” standard applies to a challenge to the

sufficiency of the evidence supporting a verdict, not the manifest weight. In Eastley v. Volkman,

132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17, the Court held that the standard of review set forth in

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), applies in civil as well as criminal cases. In

assessing whether a jury’s verdict is against the manifest weight of the evidence, this Court

examines the entire record, “‘weighs the evidence and all reasonable inferences, considers the

credibility of witnesses, and determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the [verdict] must be

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). In other words, we review the verdict to determine whether the jury

lost its way in concluding that “the greater amount of credible evidence, offered in a trial,
                                                  6


[supported] one side of the issue rather than the other.” (Emphasis in original.) Thompkins at

387.

                                            The Verdict

       {¶13} The verdict in this case was a general verdict for the hospital on the Cromers’

medical malpractice action against it. The parties disagree, however, about whether the general

defense verdict represents judgment for the hospital on all of the elements of the Cromers’

malpractice claim or only on the issue of negligence (duty and breach). The hospital focuses its

argument on whether the Cromers proved that a breach of duty by the hospital caused Seth’s

death, implicitly arguing that the jury did not lose its way in entering a verdict for the hospital on

all of the determinative issues (duty, breach, causation, and damages). On the other hand, the

Cromers assert that the jury’s verdict for the hospital was based solely on its finding that the

hospital did not breach a duty of care to Seth Cromer. Consequently, because the jury did not

reach the issue of causation, the Cromers assert that the “verdict” upon which this manifest

weight review must focus is the jury’s finding that the hospital breached no duty to Seth. This

Court agrees.

       {¶14} If the jury’s verdict had not been tested by special interrogatories, this Court’s

manifest weight review would necessarily be confined to the jury’s ultimate verdict on all of the

determinative issues, including causation. See, e.g., Mid-Ohio Mechanical, Inc. v. Eisenmann

Corp., 5th Dist. Guernsey Nos. 07 CA 000035 and 08 CA 00012, 2009-Ohio-5804, ¶ 78, citing

Bobb Forest Prods., Inc. v. Morbark Industries, Inc., 151 Ohio App.3d 63, 2002-Ohio-5370, ¶

64 (7th Dist.). In this case, however, the jury’s verdict was tested by special interrogatories,

which enables a reviewing court to conduct a more pinpointed review of the jury’s factual

findings. “The essential purpose to be served by interrogatories is to test the correctness of a
                                                7


general verdict by eliciting from the jury its assessment of the determinative issues presented by

a given controversy in the context of evidence presented at trial.”        Cincinnati Riverfront

Coliseum, Inc. v. McNulty, Co., 28 Ohio St.3d 333, 336-337 (1986).

       {¶15} In Miller v. McAllister, 169 Ohio St. 487, 494 (1959), the Ohio Supreme Court

defined “determinative issues” as “ultimate issues which when decided will definitely settle the

entire controversy between or among the parties, so as to leave nothing for the court to do but to

enter judgment for the party or parties in whose favor such determinative issues have been

resolved by the jury.” In this medical malpractice action, the determinative issues included

negligence, proximate cause, and damages. See Richley v. Liechty, 44 Ohio App.2d 359, 363 (3d

Dist.1975), citing Miller; Stant v. Lin, 3d Dist. Allen No. 1-01-90, 2002 WL 396527, *2 (Mar.

13, 2002). Because the jury was asked to complete special interrogatories pertaining to the

determinative issues of negligence, causation, and damages, this Court’s review of the weight of

the evidence is “confined to those determinative issues on which the jury rest[ed] its verdict and

not on whether the evidence could support the same general verdict had the jury made other

findings on the determinative issues.” Seeley v. Rahe, 3d Dist. Hancock No. 5-83-8, 1983 WL

4544, *5 (Dec. 21, 1983), aff'd, 16 Ohio St.3d 25 (1985). See also Wheatley v. Howard Hanna

Real Estate Servs., 9th Dist. Lorain No. 13CA010505, 2015-Ohio-2196, ¶ 14.

       {¶16} The special interrogatories in this case reveal that the jury entered a general

verdict for the hospital based on its finding on the first determinative issue of negligence.

Because it found that the hospital did not breach any duty of care to Seth, the jury did not

proceed to weigh the evidence on the remaining determinative issues of causation and damages.

       {¶17} Although the hospital points to the fact that the jury answered the third

interrogatory pertaining to causation, as the Ohio Supreme Court noted, that interrogatory answer
                                                 8


was of no significance because the jury had been instructed not to answer it and the issue of

causation had been “mooted” by the jury’s finding on the determinative issue that the hospital

was not negligent. Cromer, 2015-Ohio-229, at ¶ 42. In other words, given the jury’s written

finding that there had been no negligence by the hospital, it could not plausibly find that the

hospital’s negligence had caused Seth’s death.

       {¶18} Consequently, this Court’s review of whether the judgment for the hospital is

against the manifest weight of the evidence is confined to the jury’s finding on the first

determinative issue that the Cromers failed to prove that the hospital breached its standard of

care to Seth.

                                    Review of the Evidence

       {¶19} As to the hospital’s alleged breach of duty to Seth, the Cromers presented expert

testimony that hospital employees had departed from the standard of care in several respects: by

not assessing Seth and treating him with intravenous fluids sooner; by initially giving Seth the

wrong IV saline solution; and by not intubating him sooner. On appeal and through their motion

for a new trial, the Cromers have asserted that they presented undisputed evidence that a nurse

breached her standard of care by giving Seth the wrong IV fluids.

       {¶20} In reviewing the evidence pertaining to this alleged aspect of the hospital’s

negligence, we begin by emphasizing that the parties do not dispute the facts pertaining to this

issue. Although the parties presented conflicting evidence about some of the facts preceding

Seth’s death, the evidence was not disputed that the emergency room doctor ordered that Seth be

given normal saline solution intravenously, but a nurse mistakenly administered D5 ½ normal

saline solution instead.
                                                  9


        {¶21} The sole dispute between the parties is whether the jury was required to find that

the nurse’s act of giving Seth the wrong saline solution constituted a breach of her standard of

care. The trial court instructed the jury about a nurse’s standard of care, in relevant part:

        A nurse commits malpractice when she fails to exercise that degree of skill and
        knowledge normally applied by members of that profession in similar
        circumstances.

        If you find by the greater weight of the evidence that defendant by and through its
        employees, the nurses, failed to meet the standard of care, then you shall find the
        defendant was negligent.

        {¶22} The Cromers contend that they presented undisputed evidence that the nurse’s act

of giving Seth the wrong IV fluids constituted a breach of her standard of care and, for that

reason, the jury lost its way by finding that the hospital was not negligent. In denying the

Cromers’ motion for new trial on this basis, the trial court rejected this argument and concluded

that the hospital had presented “substantial evidence” that the nurse did not breach her standard

of care by administering the wrong saline solution to Seth. The hospital also argues that it

presented evidence to contradict the Cromer’s evidence that the nurse breached her standard of

care in this regard.

        {¶23} This Court’s review of the record failed to reveal any evidence to dispute or

undermine the credibility of the opinion of the Cromers’ medical expert that the nurse’s act of

failing to follow a doctor’s orders and instead giving Seth the wrong saline solution constituted a

departure from the standard of care. No one questioned the credibility of that expert opinion

either through cross-examination of the Cromers’ expert or through the testimony of another

witness. Although some of the hospital’s witnesses did not directly concede that the nurse had

been negligent, none of them testified that her act of disobeying a doctor’s orders and/or

administering the wrong saline solution to Seth fell within her standard of care.
                                                 10


       {¶24} The emergency room doctor testified that he ordered that normal saline solution

be administered to Seth because “it is generally understood that we use normal saline [to treat

dehydration].” He further testified that he did not order D5 ½ saline and that he would not have

authorized that fluid because it was not the optimal fluid to treat Seth. The nurse herself testified

that she had attempted to follow the doctor’s order and thought that the IV bag that she grabbed

“said normal saline.” She conceded that she had made a “mistake” by administering the wrong

saline solution to Seth. Other defense witnesses similarly characterized her action as an “error”

or a “mistake.”

       {¶25} One of the hospital’s medical experts described D5 ½ saline solution as the

“second fluid,” explaining that it is not used as the first fluid to treat dehydrated patients but is

used as a maintenance fluid after the patient is rehydrated with normal saline. He later conceded

that a nurse giving a patient the wrong fluid was a “medical error” because it was not what the

doctor ordered. He further agreed that a nurse giving a patient the wrong medication is a

departure from the standard of care.

       {¶26} Given that the expert testimony on this issue was not contradicted by other

evidence, nor was the credibility of the expert’s opinion challenged in any other manner, the jury

was not free to simply disregard it. Although the trier of fact may sometimes reject the opinion

testimony of an expert witness, there must be reason for it to do so. The trier of fact cannot

“weigh” witness testimony and assess its “credibility,” unless there are conflicts in the evidence

or questions of credibility to be resolved. See Thompkins at 387, citing Martin at 175. For

example, the trier of fact may reject an expert’s opinion based on the contradictory opinion

testimony of another expert or the expert’s own concessions during cross-examination that

question the credibility of his opinion. See, e.g., State ex rel. Unger v. Indus. Comm., 70 Ohio
                                                11


St.3d 672, 676 (1994); State v. Pierce, 64 Ohio St.3d 490, 500-501 (1992). The trier of fact

“may not disregard credible and uncontradicted expert testimony[.]” State v. White, 118 Ohio

St.3d 12, 2008-Ohio-1623, ¶ 74.

       {¶27} Therefore, because the jury heard undisputed, credible expert opinion testimony

that the nurse giving Seth the wrong saline solution was a departure from her standard of care, it

lost its way in finding that the Cromers failed to prove that the hospital breached its duty of care

to Seth. The Cromers’ second assignment of error is sustained and their third assignment of

error is sustained insofar as it asserts that the jury’s verdict was against the manifest weight of

the evidence.

                                                III.

       {¶28} The Cromers’ second and third assignments of error are sustained to the extent

that they challenge the evidence supporting the trial court’s judgment. The judgment of the

Summit County Court of Common Pleas is reversed and the cause remanded for a new trial.

                                                                             Judgment reversed and
                                                                               the cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                12


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT




MOORE, J.
CONCURS.

HENSAL, P. J.
DISSENTING.

       {¶29} I do not agree that the verdict in this case is against the manifest weight of the

evidence.   Even if I accept the majority’s position that the jury was required to believe

undisputed expert testimony that a nurse breached her duty by giving Seth the wrong IV fluids, it

is the jury’s “verdict” and the trial court’s ultimate “judgment” that is the focus of our manifest

weight review, not the jury’s finding on a single element of the claim. This Court must consider

the verdict as a whole to determine whether evidence on every element (duty, breach, causation,

and damages) met the burden of persuasion. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, ¶ 19. “The issue then facing this Court is not whether the evidence supported the

jury’s interrogatory answers, but whether the evidence supported the judgment in favor of the

[hospital].” Heise v. Orra, 8th Dist. Cuyahoga No. 66172, 1995 WL 79794, *2 (Feb. 23, 1995).

       {¶30} Notably, the Cromers do not point to undisputed evidence about any other aspect

of this case and there was no expert testimony that a nurse giving Seth the wrong IV fluids

caused his death. Instead, the Cromers’ expert opined that Seth’s death had been caused by
                                                13


several errors made by hospital employees in the timing of his treatment. There were disputes in

both the factual and expert testimony about whether the hospital breached its standard of care by

not treating Seth sooner with IV fluids and/or intubation. Moreover, the experts sharply disputed

whether any of those potential breaches of care caused Seth’s death. Therefore, the Cromers

failed to demonstrate that the jury lost its way by entering a general verdict for the hospital on

their medical malpractice claim against it.

       {¶31} Because I do not agree that the verdict should be reversed on that basis, I would

proceed to address the Cromers’ argument that the trial court also erred in denying their motion

for a new trial based on the jury’s interrogatory answers. The Cromers asserted that the jury

interrogatory answers were inconsistent because, after answering “no” to the first interrogatory

about whether the hospital was negligent, despite the trial court’s instructions not to answer the

remaining interrogatories, the jury completed the third interrogatory and responded that the

Cromers had failed to prove that the hospital’s negligence caused Seth’s death.

       {¶32} Although the Cromers raised this issue in their motion for new trial, they raised

no objection before the verdict was accepted and the jury was dismissed. Consequently, they

forfeited all but plain error. Gamble v. Summit Cty. Dept. of Jobs and Family Servs., Inc., 9th

Dist. Summit No. 21450, 2004-Ohio-193, ¶ 7. The Cromers have failed to argue or demonstrate

plain error. In fact, they have failed to demonstrate any error.

       {¶33} A party challenging a general verdict must show that the “special findings, when

considered together, are inconsistent and irreconcilable with the general verdict.” Becker v.

BancOhio Nat. Bank, 17 Ohio St.3d 158, 163 (1985), quoting Prendergast v. Ginsburg, 119

Ohio St. 360 (1928), paragraph one of the syllabus. The jury found no negligence, no causation,
                                                 14


and entered a general verdict for the hospital, all of which were consistent. See Turner v. Elk &

Elk, L.P.A., 8th Dist. Cuyahoga No. 96271, 2011-Ohio-5499, ¶ 66.

       {¶34} For these reasons, I would overrule the Cromers’ remaining assignments of error

and affirm the judgment of the trial court. Therefore, I respectfully dissent.


APPEARANCES:

JACK MORRISON, JR., THOMAS R. HOULIHAN, and VICKI L. DESANTIS, Attorneys at
Law, for Appellants.

GREGORY R. ROSSI and GREGG A. PEUGEOT, Attorneys at Law, for Appellee.
