Failure to Warn of Head Injury Risk Leads to Ohio Jury Verdict

On March 22, 2002, a nine-year-old boy fell while playing at a family friend's home in Hamersville, Ohio, striking the left side of his head on a coffee table hard enough that his father could hear the table's glass rattle from another room. The boy began vomiting and complaining of jaw pain, so his parents, Kristi Longbottom and Jesse Smith, took him to the emergency room at Mercy Hospital Clermont.

Dr. Gary Huber examined the boy, found a normal neurological exam, stitched a cut on his ear, and discharged him without ordering a CT scan. An emergency room nurse had given the parents a standard pamphlet on watching for head injury symptoms, but the parents later testified that Huber told them the injury was 'not typical' and that they should just let their son 'sleep it off.' A recording of the 911 call played at trial captured Jesse Smith telling the dispatcher that when he and Longbottom asked Huber if they should wake their son every two hours through the night, Huber told them 'no, it won't be a problem.'

The boy vomited again and had the dry heaves once home. Around 5 a.m., his mother woke to find him gasping for air. An air ambulance rushed him to Cincinnati Children's Hospital, where a CT scan showed a massive epidural hematoma causing his brain to shift and herniate. A surgeon, Dr. Kerry Crone, operated immediately and was not certain the boy would survive. He did, after several days in intensive care and weeks relearning to swallow, eat, communicate and walk. He was left with permanent brain injury and an altered gait.

The family sued Huber, his employer Qualified Emergency Specialists, and Mercy Hospital in 2003, then voluntarily dismissed and refiled the case in 2008. They settled with the hospital for $500,000 before trial. The claims against Huber and QESI went to a Clermont County jury for nine days in 2010. Rather than accepting the family's argument that Huber should have ordered a CT scan, the jury found him negligent on a different theory: that he failed to instruct the parents about the possibility of a serious head injury or how to monitor their son for one. It awarded $2,412,899, including $1,616,899 for the boy's future medical care, pain and suffering, and lost earning capacity.

The trial court credited the $500,000 hospital settlement against that verdict, leaving Huber and QESI responsible for $1,912,899, and separately ordered $830,774.66 in prejudgment interest after finding Huber had not made a good faith effort to settle. The Twelfth District Court of Appeals affirmed the verdict and the setoff in 2012, rejecting Huber's argument that there was no evidence tying his conduct to the boy's injuries, and it sided with the family on a cross-appeal to include additional interest for the year their case had been dismissed and refiled.

The Ohio Supreme Court then took up a conflict between appellate districts over which version of the state's prejudgment interest law applied. In 2013, it held that because the family's suit was refiled in 2008, after a 2004 rewrite of the statute took effect, the newer law governed, one that bars interest on the future-damages portion of a verdict. The court reversed the interest ruling and sent the case back to Clermont County to recalculate the interest under that statute. The jury's finding of negligence and the $2,412,899 damages figure were never disturbed.