COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73108 ROSALEE DALEY, CO-GUARDIAN, : ACCELERATED DOCKET ETC., ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION UNIVERSITY HOSPITALS OF : CLEVELAND, ET AL. : PER CURIAM : Defendant-appellees : : : APRIL 23, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-310694 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: JOSEPH TIRA, ESQ. QUANDT, GIFFELS & BUCK FRANK P. GIAIMO, ESQ. 800 Leader Bldg. MONDELLO & LEVEY 526 Superior Avenue, NE 55 Public Square, #1700 Cleveland, OH 44114 Cleveland, OH 44113 BRIAN E. KREBS, ESQ. 1204 Ramona Avenue Lakewood, OH 44107 For defendant-appellees: JAN L. ROLLER, ESQ. Davis & Young 1700 Midland Building 101 Prospect Avenue Cleveland, OH 44115-1027 -2- PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Local Rule 25, the record from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Plaintiff Rosalie Daley, the legal guardian of Mary Tonti, brought this medical malpractice action against defendants Valerie Smith-Gamble, M.D. and University Hospitals, alleging they failed to take steps necessary to prevent Tonti, an Alzheimer's Disease sufferer, from falling and injuring herself while hospitalized. Both defendants filed motions for summary judgment in which they argued plaintiff failed to establish proximate causation because plaintiff's expert could not establish that Tonti's fall occurred as a result of an act or omission on their part. The court agreed and granted summary judgment. The dispositive issue in this appeal challenges the summary judgment. Tonti entered the hospital on April 6, 1993, for evaluation and treatment of her Alzheimer's Disease. At the time, she had difficulty speaking, was in a volatile mood and exhibited physical frailty. Tonti had not fallen during her time at the hospital, although there was some indication in her records that doctors were concern[ed] about her gait and changes in her blood pressure. On the night of April 21, 1993, defendant doctor became aware that Tonti had been exhibiting combative and extremely agitated behavior. She ordered the nursing staff to administer three different medications, all designed to calm Tonti and enable her to sleep. Later that evening, hospital staff heard a thud in Tonti's -3- room and, upon investigation, found her lying on the floor with a broken hip. Tonti's Alzheimer's Disease prevented her from communicating the cause of her fall. Plaintiff alleged defendants should have taken measures to insure Tonti's well-being given the mix of sedatives administered, her gait and blood pressure problems and the fact that she had been confined alone in her room. Among the measures plaintiff suggested were restraining Tonti or ordering a companion to stay with her. Summary judgment is appropriate if, after construing the evidence in a light most favorable to the party against whom a summary judgment motion is made, it appears from the evidence that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the summary judgment motion is made. See Civ.R. 56(C). In a negligence case, the plaintiff must show the existence of a duty, a breach of that duty, that the victim suffered damages and that those damages were proximately caused by the breach of the duty. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. The negligent failure to discharge the duty of care required of physicians in similar circumstances constitutes medical negligence if it proximately causes injury to the patient. Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 579. As used in negligence cases, proximate cause may be defined as the natural and continuous sequence of events which produces a result that would not have taken place without the act. See Strother v. Hutchinson -4- (1981), 67 Ohio St.2d 282, 287; Randall v. Mihm (1992), 84 Ohio App.3d 402, 406. Defendants premised their motions for summary judgment exclusively on plaintiff's failure to isolate the cause of Tonti's fall. To support their positions, they cited to portions of deposition testimony by plaintiff's expert in which the expert could not positively state that Tonti fell as a result of any failure to restrain her or provide companionship. They rely primarily on the following testimony: Q. Okay. So you cannot state precisely the ideology of Ms. Tonti's fall, correct? A. That's correct. That is correct. Q. Stated another way, you cannot state with reasonable medical certainty or probability as to why she fell on April 21, 1993 at roughly 5:30 a.m.? A. Actually, I think that's true. We cannot. We do not know what happened at that time. The expert went on to concede that other causes could have contributed to the fall, and that even if defendants had used the interventions he described, the fall might still have occurred. These excerpts from the expert's deposition do not accurately reflect his conclusions because they are taken out of context. The expert noted that on the evening Tonti fell, she experienced a particularly violent outburst caused by her Alzheimer's dementia. Defendant doctor prescribed three different medications in order to calm her violent mood and enable her to sleep. Although not finding fault with that course of treatment, the expert nonetheless stated that the medication changes coupled with Tonti's previously -5- observed gait problems and fluctuation in her blood pressure should have led defendants to consider her risk of falling. Notwithstand- ing his earlier concession that neither he nor anyone else could ever know the true reason why Tonti fell, the expert stated, [h]ad there been an intervention to have prevented a fall or to have made it much more unlikely, then I think, we could have had a different outcome. He went on to say that had there been a restriction on her own ambulation or direct observation, that could have contrib- uted substantially to reducing her risk of fall. *** I believe with a reasonable degree of certainty there would have been no fall had there been either a companion or some restraining at that point. That option didn't seem to be outlined or considered. (emphasis sic.). A plaintiff in this type of case is not required to eliminate all possibilities in order to establish proximate cause. Defen- dant's argument would have the effect of forcing plaintiff to establish causation beyond a reasonable doubt, and that standard is not applicable to civil suits. As a matter of ultimate proof, a plaintiff need only introduce evidence from which reasonable persons may conclude that it is more probable than not that the event was caused by the defendant. Cooper v. Sisters of Charity (1971), 27 Ohio St.2d 242, 252; Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367. The expert's testimony met this burden by showing Tonti's fall was more likely to occur because defendants failed to take measures to prevent the fall. He stated: -6- I do believe there are potential interventions that could have prevented the fall. I cannot guarantee; no one can ever. But there are her present the evening there, the situa- tion, did not do anything that would have prevented a risk of fall in a patient who was entering into an evening at a high fall risk factor that we've talked about. So I can't say with maybe I'm saying it incorrectly. But I believe that it is possible that there are interventions that evening that could have prevented her fall. (emphasis added). It would be a virtual impossibility in a case like this to show causation where the only person who knows the reason for the fall is incapable of communicating that fact. This is the obvious distinction from slip and fall cases where the victim, although capable of describing a fall, cannot identify the substance causing the fall. Failure to identify the source of the fall is generally not related to proximate cause, but to the duty placed upon the premises owner under the circumstances. When the slip and fall victim cannot identify the source of the fall, it generally follows that, absent a more particularized duty, a premises owner cannot be expected to warn its patrons against the possible threat because it, too, could not be expected to know of the harm. In this case, plaintiff's expert testified that Tonti's poor gait, fluctuating blood pressure and changed medication made her a likely candidate for a fall. While it is possible that all these factors were present but did not contribute to the fall, it is also at least as likely that they did contribute to the fall. On the -7- state of this record, reasonable minds could differ as to whether defendants deviated from the applicable standard of care and whether that deviation contributed to the fall. -8- We therefore sustain the first assignment of error. Our disposition makes it unnecessary for us to consider plaintiff's remaining argument. Judgment reversed and remanded. -9- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADMINISTRATIVE JUDGE JOHN T. PATTON, JUDGE JAMES D. SWEENEY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsidera- ation with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by .