Rеasonable minds could arrive at differing conclusions as to whether Dr. Hansen was negligent in rendering professional medical services to plaintiff’s decedent, and there is sufficient evidenсe for the submission of that issue to the jury. There is ample evidence in the record supportive of the trial judge’s findings of fact that Dr. Hansen did not take the vital signs, that they were not taken in his presеnce, and that he had no knowledge of what they were, if taken. Those findings, considered together with other expert testimony, provide a basis from which a
The more problematic issue of proximate cause looms from these facts as a reminder of past difficulties this court has experienced with this issue in malpractice cases.
It has been established, and we now reаffirm the principle that: “Even though there is evidence of malpractice sufficient for submission to the jury on that issue, a verdict must be directed in favor of the defendant where there is no evidence adduced which would give rise to a reasonable inference that the defendant’s acts of malpractice was the direct and proximate cause of the injury to the рlaintiff. ’ ’ Paragraph two of the syllabus in Kuhn v. Banker (1938),
In his opinion in Kuhn, Judge Williams, at page 315, stated that ‘ ‘ the patient cannot recover damages unless the act of malpractice is the direct and proximatе cause of injury. Loss of chance of recovery, standing alone, is not an injury from which damages will flow.” In so stating, Judge Williams disagreed with, and relegates to obiter dictum, the conflicting view expressed in Craig v. Chambers (1867),
In Hicks v. United States (C. C. A. 4, 1966),
“When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility оf realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to*251 pass. The law does not in the existing circumstances.- require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.”
Although the words “substantial possibility” are employed as articulating a standard of proof, the facts in Hichs reveаl that plaintiffs’ evidence satisfied a much higher standard of proof. The court also stated, at page 632:
“The government further contends that even if negligence is established, there was nо proof that the erroneous diagnosis and treatment was the proximate cause of the death, asserting that even if surgery had been performed immediately, it is mere speculatiоn to say that it would have been successful. The government’s contention, however, is unsupported by the record. Both of plaintiff’s experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere сontradicted by the government expert.” (Emphasis added.)
A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a “substantial possibility” of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a “chance of recovery” to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximatе cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of аny intervening cause.
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strоng intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an in
We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, in probability, proximately caused the death.
In this case, we are convinced that in order for the jury quеstion to be presented, giving plaintiff’s evidence, and inferences reasonably deductible therefrom its most favorable consideration and indulgence, there must be sufficient evidence that Dr. Hansen’s negligence denied plaintiff’s decedent the probability of survival. Appellant has not produced such evidence.
Dr. Cleveland, plaintiff’s witness stated that “there is no possible way for a physician or anyone else to ascertain with any degrеe of certainty whether with medical intervention, the individual would have survived or died.” Dr. DeJong stated that, if untreated, the condition from which Theodore Cooper died had practically а 100% mortality rate without surgery for patients with similar injuries as decedents. He then stated that “there certainly is a chance and I can’t say exactly what — maybe some
Dr. Cleveland’s opinion furnishes no suggestion of a probability of survival; Dr. DeJong’s opinion bears closer examination. Probability is most often defined as that which is more likely than not. See Clark v. Welch (C. C. A. 1, 1944),
As stated in Davis v. Quarnieri (1887),
Plaintiff’s cause of action was brought under R. O. 2125.01, under which compensаtion may be awarded “when death is caused by a wrongful act, neglect or default * * (Emphasis added.)
In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff’s evidence indiсates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient’s survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing
We find no error in the trial court’s determination .that appellee Sisters of Charity were not liable for the negligence of appellees Dr. Hansen and Emergency Professional Service Grоup, should that he established, or in the other issues raised by appellant before this court. Ap-pellee Dr. Hansen was an employee of appellee Emergency .Professiоnal Service Group, and was not under the control of the hospital. See Avellone v. St. John’s Hospital (1956),
Nоwhere in the record does it affirmatively appear that appellant was prejudiced by the trial court’s granting appellee’s application to stay the taking of Dr. Mc-Lаurin’s deposition, of which plaintiff also complains. The rule is well settled in Ohio that: “In order to support reversal of a judgment, the record must show affirmatively not only that error intervened but that such error was to the prejudice of the party seeking such reversal.” Smith v. Flesher (1967),
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.