McMullen, Exr., Appellant, v. Ohio State University Hospitals, Appellee, 88 Ohio St. 3d 332

Alice Robie Resnick, J. The issue to be decided in this case is whether the loss-of-chance doctrine applies in a case where a plaintiff proves a direct causal relationship between the decedent’s death and a specific negligent act. Further, although the court of appeals correctly decided that the Court of Claims, rather than the probate court, has exclusive, original jurisdiction to determine collateral-source deductions under R.C. 3345.40(B)(2), it erred in requiring that those deductions be made before the damage award is allocated among the beneficiaries.

I Loss of Chance The Court of Claims found that appellee’s negligence “caused Mrs. McMullen’s oxygen saturation level in her blood to fall to a low of twenty-nine percent. An oxygen saturation level of twenty-nine percent is inconsistent with life and subsequently caused irreversible damage to Mrs.

McMullen’s brain, lungs, and heart.” (Emphasis added.) Since the only suggested cause of death in this case is the anoxic or hypoxic episode on October 14, 1990, which the trial court attributed solely to negligence on the part of appellee, the above-quoted finding should have been dispositive of the causation aspect of this case. The case became complicated only when the trial court began to analyze the issue of causation in terms of increased risk.

Apparently the trial court believed, as did the majority of the court of appeals, that a wrongful death claimant must involuntarily use an increased-risk theory of recovery, with its attendant formula for reducing damages, whenever the decedent’s chance of survival from any preexisting condition is less than even. However, in recognizing a cause of action for the loss of a less-than-even chance of recovery or survival, we never intended to force this theory on a plaintiff who could otherwise prove that specific negligent acts of the defendant caused the ultimate harm. In Cooper v.

Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97, at the syllabus, we held: “In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiffs evidence indicates 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 the jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery, the patient probably would have survived. ” (Emphasis added.) In Roberts v.

Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483, 668 N.E.2d 480, paragraph one of the syllabus, we overruled Cooper, holding: “In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care provider’s negligent act or omission increased the risk of harm to the plaintiff.

It then becomes a jury question as to whether the defendant’s negligence was a cause of the plaintiffs injury or death.” (Emphasis added.) In so holding, we followed the approach set forth in 2 Restatement of the Law 2d, Torts (1965),

Section 323, which provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if “(

a) his failure to exercise such care increases the risk of such harm.” In Hamil v. Bashline (1978), 481 Pa. 256, 269-270, 392 A.2d 1280, 1286-1287, the Supreme Court of Pennsylvania explained: “Section 323(

a) recognizes that a particular class of tort actions, of which the case at bar is an example, differs from those cases normally sounding in tort. Whereas typically a plaintiff alleges that a defendant’s act or omission set in motion a force which resulted in harm, the theory of the present case is that the defendant’s act or omission failed in a duty to protect against harm from another source.

To resolve such a claim a fact-finder must consider not only what did occur, but also what might have occurred, i.e., whether the harm would have resulted from the independent source even if defendant had performed his service in a non-negligent manner. Such a determination as to what might have happened necessarily requires a weighing of probabilities.” (Emphasis sic; footnote omitted.) In reviewing the many cases on the subject, a particular factual situation is discernible to which the loss-of-chance doctrine is invariably applied.

In those cases, the plaintiff or the plaintiffs decedent is already suffering from some injury, condition, or disease when a medical provider negligently diagnoses the condition, fails to render proper aid, or provides treatment that actually aggravates the condition. As a result, the underlying condition is allowed to progress, or is hastened, to the point where its inevitable consequences become manifest.

Unable to prove that the provider’s conduct is the direct and the only cause of the harm, the plaintiff relies on the theory that the provider’s negligence at least increased the risk of injury or death by denying or delaying treatment that might have inured to the victim’s benefit. The focus then shifts away from the cause of the ultimate harm itself, and is directed instead on the extent to which the defendant’s negligence caused a reduction in the victim’s likelihood of achieving a more favorable outcome. See Wendland v. Sparks (Iowa 1998), 574 N.W.2d 327; Delaney v.

Cade (1994), 255 Kan. 199, 873 P.2d 175; Donnini v. Ouano (1991), 15 Kan.App.2d 517, 810 P.2d 1163; Perez v. Las Vegas Med. Ctr. (1991), 107 Nev. 1, 805 P.2d 589; McKellips v. St. Francis Hosp., Inc. (Okla.1987), 741 P.2d 467; Herskovits v. Group Health Coop, of Puget Sound (1983), 99 Wash.2d 609, 664 P.2d 474; Jones v. Montefiore Hosp. (1981), 494 Pa. 410, 431 A.2d 920; Hamil, supra; Daniels v. Hadley Mem. Hosp. (C.A.D.C.1977), 566 F.2d 749; Bellaire Gen. Hosp., Inc. v. Campbell (Tex.Civ.App.1974), 510 S.W.2d 94; Kallenberg v.

Beth Israel Hosp. (1974), 45 A.D.2d 177, 357 N.Y.S.2d 508, affirmed (1975), 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128; Hernandez v. Clinica Pasteur, Inc. (Fla.App.1974), 293 So.2d 747; Whitfield v. Whittaker Mem. Hosp. (1969), 210 Va. 176, 169 S.E.2d 563; Hicks v. United States (C.A.4, 1966), 368 F.2d 626; Annotation, Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance (1990), 81 A.L.R.4th 485; Annotation, Medical Malpractice: “Loss of Chance” Causality (1987), 54 A.L.R.4th 10.

The plaintiff should not, however, be involuntarily confined within the limits of an increased-risk or loss-of-chance theory where her efforts to prove a direct causal relationship between the defendant’s negligence and the decedent’s death are successful. “Section 323(

a) was designed to relax a plaintiffs burden of proving causation, not to compound it.” (Emphasis sic.) Jones, supra, 494 Pa. at 418, 431 A.2d at 924. As one writer explains, the lost-chance “issue must be conditioned upon a negative finding of proximate cause.” Perdue, Recovery for a Lost Chance of Survival: When the Doctor Gambles, Who Puts Up the Stakes? (1987), 28 So.Tex.L.Rev. 37, 60. In Ulmer v.

Ackerman (1993), 87 Ohio App.3d 137, 621 N.E.2d 1315, which was decided after our decision in Cooper but before our decision in Roberts, plaintiff brought a medical malpractice action alleging that decedent’s death was caused by an anesthesiologist’s premature removal of an endotracheal tube. At trial, plaintiff presented expert medical testimony that defendant’s conduct was the sole cause of decedent’s death, but the trial court directed a verdict in defendant’s favor, finding that plaintiff failed to prove that decedent would have survived but for defendant’s negligence.

The court of appeals reversed, finding that “the establishment of the sole cause of death necessarily imports that the individual would have survived absent the departure from the standard of care.” Id., 87 Ohio App.3d at 144, 621 N.E.2d at 1319. However, more basic than that, the court of appeals found: “The trial court, in granting the motion for directed verdict, mistakenly relied on [Cooper] as requiring plaintiffs showing by expert testimony that Ulmer would have survived his surgery and postoperative difficulties but for the negligence of the anesthesiologist.

In the matter at hand, however, where no other alternative save decedent’s death may be inferred from the defendant’s conduct according to expert medical testimony, no occasion arose for disproof of other alternatives, as in the case of the claimed wrong diagnosis and ensuing wrong treatment of the dying patient in Cooper. The issue of whether the physician’s misjudgment precluded an alternative certain chance of survival is not presented.” Id., 87 Ohio App.3d at 143, 621 N.E.2d at 1319. In Anderson v.

Picciotti (1996), 144 N.J. 195, 676 A.2d 127, plaintiff alleged that the defendant negligently amputated her right great toe pursuant to a misdiagnosis of osteomyelitis. After the cause was tried, the defendant requested a charge on loss of chance, arguing that there was a risk that the toe would have been amputated in any event. The trial court denied the defendant’s request, stating: “I kept getting a feeling I was trying to force a square peg into a round hole by trying to make this case fit into that increased risk, loss of chance line of cases.

I don’t think that this is the type of case that the courts were looking at when they rendered their decisions in these cases. This isn’t really a lost chance case, the testimony and the allegations by the plaintiff really don’t go to any allegations of increased risk based on what the defendant did or did not do * * *. I don’t think that there is an argument that the defendant’s negligence combined with the preexisting condition to cause the injury * * *.” Id., 144 N.J. at 202, 676 A.2d at 131.

The New Jersey Supreme Court agreed, holding that the defendant was not entitled to a charge on increased risk absent “any evidence that defendant’s negligence combined with a preexistent condition to cause plaintiff harm.” In order for the defendant to benefit from the loss-of-chance concept, he must “establis[h] that plaintiffs damages were induced by concurrent causes, one of which was a preexistent condition unrelated to defendant’s negligence.” Id., 144 N. J. at 207-208, 676 A.2d at 134.

In the present case, the negligence of hospital personnel did not merely combine with a preexisting condition to create the ultimate harm, it directly caused the ultimate harm. Their actions in this case did not merely make it uncertain whether the decedent would have survived, they made it certain that she would not survive. Appellee’s personnel not only failed in their duty to protect decedent from harm, they set in motion another, independent force that directly caused her death.

This is not a situation where negligence merely hastened or aggravated the effects of a preexisting condition or allowed it to progress untreated. Once the trial court determined that actions by hospital personnel were inconsistent with decedent’s life, it became wholly unnecessary to inquire as to whether their negligence also increased the risk of physical harm to decedent. Having determined that negligence caused the death, the trial court should not have proceeded to consider what probably would have happened in the absence of negligence. The former finding should have subsumed the latter.

Thus, we agree with Judge Peggy Bryant, who, dissenting below, stated that this “case presents a straightforward medical malpractice case, not a case under Cooper and Roberts. Whether or not a lost chance of survival should be an additional element of recovery is not at issue. * * * Unlike the lost-chance case, plaintiffs case presents a superimposed act of malpractice, not a malpractice which hastens or aggravates the pre-existing condition.” Accordingly, the judgment of the court of appeals is reversed on this issue. II Collateral-Benefit Setoffs

Section 16,

Article I of the Ohio Constitution provides that “[s]uits may be brought against the state, in such courts and in such manner, as may be provided by law.” R.C. 2743.03 created the Court of Claims, vesting it with “exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in

section 2743.02 of the Revised Code.” Under R.C. 2743.02(A)(1), the state’s waiver of immunity “is subject to the limitations set forth in this

chapter and, in the case of state universities or colleges, in

section 3345.40 of the Revised Code.” R.C. 3345.40(B)(2) provides that “[i]f a plaintiff receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against the state university or college recovered by the plaintiff.” In contrast, the probate court has exclusive jurisdiction to “order the distribution of estates.” R.C. 2101.24(A)(1)(c).

This includes the jurisdiction to distribute among the beneficiaries the amount received by a personal representative in an action for wrongful death. R.C. 2125.03(A)(1). In that case, “[t]he court that appointed the personal representative * * * shall adjust the share of each beneficially in a manner that is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries.” Id. However, this

section does not empower the probate court to determine collateral-source deductions in actions brought against a state university, and that function remains exclusively .with the Court of Claims. Thus, the court of appeals correctly concluded that the Court of Claims, rather than the probate court that appointed the personal representative, has exclusive, original jurisdiction to determine the deduction of collateral benefits pursuant to R.C. 3345.40(B)(2).

However, in remanding the cause on this issue, the court of appeals erred when it directed the Court of Claims to offset collateral benefits before the probate court allocates the aggregate award among the beneficiaries pursuant to R.C. 2125.03(A)(1). In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, syllabus, we held that “R.C. 2317.45 violates Sections 2, 5 and 16,

Article I of the Ohio Constitution, and is unconstitutional in toto.” In holding R.C. 2317.45 to be violative of the Due Process Clause of

Section 16,

Article I of the Ohio Constitution, we explained: “Of primary significance is that the statute requires deductions from jury verdicts irrespective of whether a collateral benefit defined in R.C. 2317.45(A)(1) is actually included in the verdict. While the goal of preventing double recoveries is not arbitrary or unreasonable, * * * R.C. 2317.45 fails to take into account whether the collateral benefits to be deducted are within the damages actually found by the jury, especially where there are no interrogatories to quantify the categories of damages that make up the general verdict.

Thus, the statute can arbitrarily reduce damages that a jury awards a plaintiff, since under the statute it is irrelevant whether any collateral benefit actually represents any portion of the jury’s award.” Id., 69 Ohio St.3d at 423-424, 633 N.E.2d at 511. In Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 652 N.E.2d 952, we considered the constitutionality of R.C. 2744.05(B), which provides for the deduction of collateral benefits from awards against political subdivisions.

In so doing, we adhered to the proposition that deductions for collateral benefits are constitutionally permitted only to the extent that the loss for which the collateral benefit compensates is actually included in the award. We put it succinctly that “there shall be no constitutionality without a requirement that deductible benefits be matched to those losses actually awarded.” Id., 73 Ohio St.3d at 269, 652 N.E.2d at 960. We upheld the constitutionality of R.C. 2744.05(

B) because its language was susceptible of an

interpretation that requires the matching of deductible benefits to damages actually awarded. However, even more basic than this, due process requires that the collateral benefits to be deducted belong to the party whose recovery is to be offset. Due process does not allow one party’s recovery to be reduced by another person’s collateral benefits. Thus, we held in Buchman that “[t]he Social .Security benefits which Donald’s children have received or are entitled to receive, however, are not deductible from the jury’s verdict.

No part of the $5,082,482 verdict against which Wayne Trace seeks to offset these benefits was awarded to Donald’s children.” Id., 73 Ohio St.3d at 265, 652 N.E.2d at 957. Since the language of R.C. 3345.40(B)(2) is virtually identical to that of R.C. 2744.05(B), the court of appeals correctly determined that it too is susceptible of an

interpretation that requires the matching of deductible benefits to losses actually awarded.

The court of appeals also seemed to accept the idea, at least in principle, that deductions be taken on a beneficiary-by-beneficiary basis, when it held that “the Court of Claims shall deduct the collateral benefits received by each beneficiary from the damage award to the extent that the loss for which a given collateral benefit compensates is duplicated in the damages actually awarded to that beneficiary.” (Emphasis added.) However, the court of appeals failed to account for the fact that, in a wrongful death action involving multiple beneficiaries, the beneficiaries may not be entitled to recover the amounts respectively awarded to each of them in the Court of Claims.

Instead, their proportionate shares of the aggregate award are subject to adjustment by the probate court under R.C. 2125.03(A)(1). Simply put, the probate court may allocate the aggregate award among the beneficiaries differently than was done in the Court of Claims. In this situation, the approach taken by the court of appeals, which requires collateral-source deductions before final distribution, could arbitrarily reduce one beneficiary’s award by another beneficiary’s collateral benefits.

Appellant effectively illustrates this point by use of the following example: “For example, the Court of Claims could determine that the surviving spouse suffered damages in the amount of Five Hundred Thousand Dollars ($500,000.00) and that a minor child has been damage[d] in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00). The Court of Claims could then set off Five Hundred Thousand Dollars ($500,000.00) in insurance proceeds received by the surviving spouse and enter an award in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00).

Under the Court of Appeals procedure, a Probate Court would then determine the distribution of the Two Hundred Fifty Thousand Dollars ($250,000.00). If the Probate Court determines that the surviving spouse and the minor child are each entitled to One Hundred Twenty-Five Thousand Dollars ($125,000.00), the amount recoverable by the minor child would have been decreased by insurance proceeds not actually received by the minor child.

This result would violate the mandate of Buchman.” In addition, by forcing collateral-source deductions before final distribution, the court of appeals causes the statute to operate contrary to its presumed constitutional goal, which is to eliminate or prevent double recovery. Sorrell, supra, 69 Ohio St.3d at 423-424, 633 N.E.2d at 511. Both the parties and the court of appeals in this case have led us to believe that we must choose between two extreme procedural approaches in attempting to resolve the interplay between

Section 16,

Article I of the Ohio Constitution, R.C. 3345.40(B)(2), and 2125.03(A)(1). They have presented us with the options of either having the probate court effectuate collateral-source deductions, which it clearly has no jurisdiction to do, or allowing the Court of Claims to make the deductions before the probate court allocates the award among the beneficiaries, which is clearly in violation of Buchman and Sorrell. It is not necessary to choose between these two options.

Rather, the solution is to have the Court of Claims make the collateral-source deductions required by R.C. 3345.40(B)(2) in accordance with Buchman, but only after the probate court adjusts the share of each beneficiary pursuant to R.C. 2125.03(A)(1). Accordingly, the judgment of the court of appeals is reversed as to this issue.

Based on all of the foregoing, the judgment of the court of appeals is reversed, and the cause is remanded to the Court of Claims to do the following: (1) enter judgment in appellant’s favor on the issue of liability for causing decedent’s death; (2) without conducting a new trial on the issue of damages, assess damages from the evidence already submitted based on decedent’s life expectancy, taking into account decedent’s condition at the time of her death, as in any other malpractice case; (3) refer the cause to the Probate Court of Lawrence County to distribute that award among the beneficiaries; and (4) deduct collateral benefits received by each beneficiary, pursuant to Buchman, from that beneficiary’s share of the award as adjusted by the probate court.

Judgment reversed and cause remanded. Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent. . Appellee directs our attention to Wendland, supra, and Dickey v. Daughety (1996), 260 Kan. 12, 917 P.2d 889, and points out that the loss-of-chance doctrine has not been limited to cases involving negligent diagnosis. We agree, but that is a different issue from whether and under what circumstances the doctrine can be forced upon a plaintiff or used defensively.

In Wendland, and in those cases cited in Wendland, the doctrine was applied to situations where defendant’s negligence caused a failure or delay in treatment. In Dickey, the doctrine was applied against a physician who, while attempting to replace a chest tube, accidentally lacerated the patient’s artery, causing her death. However, it was the estate of the deceased patient that brought the wrongful death action based on loss of chance of survival. Thus, the issue of whether the doctrine could have been raised defensively, despite direct causative evidence, was not an issue in that case.