2013 Ohio 351
Ohio Ct. App.2013Background
- Plaintiff Jonathan Duck, as administrator of Isaac Duck’s estate, sues James Dennis Cantoni, M.D., and Marietta Memorial Hospital for wrongful death/medical malpractice following Isaac’s death shortly after birth in 2006.
- Isaac was delivered via emergency cesarean section with Apgar scores of 0 and no heart rate at birth.
- Cantoni unsuccessfully attempted intubation initially due to dim light, delaying airway management for approximately seven to eight minutes before successful intubation and ventilation.
- Appellant’s experts Dr. Bove and Dr. Crawford testified Isaac would have had a fifty-percent survival chance if intubated immediately; Crawford later set survival odds at about forty-seven percent given Apgar data.
- Defendants moved for summary judgment arguing no admissible evidence establishing proximate cause; trial court struck Crawford’s affidavit; court granted summary judgment for Cantoni and the Hospital; Duck appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on loss-of-chance grounds | Duck argues loss-of-chance evidence creates a jury question | Cantoni/Memorial contend Roberts excludes fifty-fifty survival from loss-of-chance | Summary judgment affirmed; loss-of-chance does not apply to fifty-percent survival. |
| Whether the trial court abused its discretion in striking Dr. Crawford’s affidavit | Crawford affidavit clarifies deposition, not contradicts | Affidavit contradicted prior testimony without adequate explanation | Affirmed; no abuse of discretion in striking affidavit. |
Key Cases Cited
- Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St.3d 483 (1996) (loss-of-chance doctrine permits recovery when chance is less than 50%)
- Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242 (1971) (probability defined; words like maybe/around 50% not enough for probability)
- Davis v. Guarnieri, 45 Ohio St. 470 (1887) (probability concept referenced in loss-of-chance discussion)
- McDermott v. Tweel, 151 Ohio App.3d 763 (2003) (limits on loss-of-chance applicability in some contexts)