Berdyck v. Shinde - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Berdyck, Appellee, v. Shinde, Appellee; H. B. Magruder Memorial
Hospital, Appellant.
[Cite as Berdyck v. Shinde (1993), Ohio St.3d .]
Malpractice -- Nurse under duty to keep attending physician
informed of patient's condition -- Nurse must perform
competent nursing assessment of patient in order to
fulfill duty to inform attending physician -- Whether a
nurse has satisfied or breached the duty of care owed
patient determined, how -- Standard of care for licensed
nurse practitioners -- Although particular act is within
duty of care owed to patient by attending physician, such
act is not excluded from nurse's duty, when -- Intervening
negligence of attending physician does not absolve
hospital of its prior negligence, when.
1. Though a nurse is prohibited from engaging in the practice
of medicine, a nurse employed by a hospital to which a
patient is admitted by an attending physician is under a
duty to keep the attending physician informed of the
patient's condition so as to permit the physician to make
a proper diagnosis and devise a plan of treatment for the
patient. (Albain v. Flower Hosp. [1990], 50 Ohio St.3d
251, 553 N.E.2d 1038, followed.)
2. In order to fulfill their duty to inform the attending
physician, nurses must perform a competent nursing
assessment of the patient to determine the signs and
symptoms presented by the patient that are significant in
relation to the attending physician's tasks of diagnosis
and treatment.
3. Because nurses are persons of superior knowledge and skill,
nurses must employ that degree of care and skill that a
nurse practitioner of ordinary care, skill and diligence
should employ in like circumstances. Whether a nurse has
satisfied or breached the duty of care owed to the
patient is determined by the applicable standard of
conduct, which is proved by expert testimony.
4. The standard of conduct for licensed nurse practitioners is
that applicable to the community of persons engaged in
that occupation. Geographical considerations do not

control when identifying that community, but statutory
standards for licensure are relevant to the standard of
conduct required of licensed nurses in Ohio and may be
used to prove that standard.
5. Though nurses are prohibited from practicing medicine, the
fact that a particular act is within the duty of care owed
to a patient by an attending physician does not
necessarily exclude it from the duty of care owed to the
patient by a nurse, and such act is not excluded from the
nurse's duty if it is within the standard of conduct
required to satisfy the nurse's separate duty of care.
6. The intervening negligence of an attending physician does
not absolve a hospital of its prior negligence if both
co-operated in proximately causing an injury to the
patient and no break occurred in the chain of causation
between the hospital's negligence and the resulting
injury. In order to break the chain, the intervening
negligence of the physician must be disconnected from the
negligence of the hospital and must be of itself an
efficient, independent, and self-producing cause of the
patient's injury.
(No. 91-2558 -- Submitted February 10, 1993 -- Decided
June 30, 1993.)
Appeal from the Court of Appeals for Ottawa County, No.
90-OT-060.
Appellee, Donna Berdyck, was pregnant with her third child
in 1986. She was under the care of Dr. S.G. Shinde, a
board-certified obstetrician on the staff of H.B. Magruder
Memorial Hospital (the "hospital"), in Port Clinton.
Berdyck had a history of preeclampsia, a complication of
pregnancy associated with weakening of the kidneys and spilled
protein in the urine. Symptoms of preeclampsia include
elevated blood pressure, increased reflexes, edema, headache,
blurred vision, and pain in the epigastric, or upper abdominal,
region. Severe preeclampsia can progress to eclampsia, which
is signalled by the onset of seizures, or coma, in the mother.
The risk of eclampsia can be avoided by administration of
magnesium sulfate.
Dr. Shinde was aware of Berdyck's history and had
classified her as at risk for preeclampsia. Dr. Shinde had
observed a high blood pressure and a trace of protein in the
urine during Berdyck's office visits. At an office visit on
May 27, 1986, Berdyck complained of a fever and diarrhea, and
told Dr. Shinde that she had experienced severe abdominal pains
several days before. Dr. Shinde advised her to call him if the
pains returned.
On May 28, 1986, Berdyck telephoned Dr. Shinde in the
early evening hours and told him that her pains had returned.
Dr. Shinde called a prescription to a pharmacy. Berdyck took
the medication as directed. Her pain was not relieved, so in
the early morning hours of May 29, 1986, Berdyck drove herself
to the hospital for attention, arriving there at about 3:00 a.m.
When Berdyck arrived at the hospital she was met outside
the emergency room by Nurse Evalda Holzapfel, who was then in
overall charge of the hospital's nursing service. At that time
Berdyck had passed an estimated thirty-eight weeks of her
pregnancy. Berdyck told Nurse Holzapfel that she had not come

to deliver her baby but because something was wrong.
Nurse Holzapfel called Dr. Shinde and told him that
Berdyck had presented with severe upper abdominal pain and
asked if Dr. Shinde wanted her examined by the emergency room
physician. Dr. Shinde said that would not be necessary, and
told Nurse Holzapfel to have Berdyck admitted to the obstetrics
department at the hospital.
Nurse Holzapfel put Berdyck in a wheelchair and took her
to the obstetrics unit, where they were met by Nurse Lynne
Pickett, who was on duty there that morning. Nurse Pickett
asked Berdyck if she was there to deliver her baby. Again,
Berdyck said that she was not, but that she was there because
something else was wrong.
Berdyck was admitted to the obstetrics unit by Nurse
Pickett at about 3:10 a.m. Berdyck told Nurse Pickett that she
had severe upper abdominal pain and was experiencing nausea and
headache. Nurse Pickett asked if Berdyck could pass urine.
Berdyck said that she could not. Nurse Pickett took a blood
pressure reading at approximately 3:20 a.m., and found it to be
elevated. Nurse Pickett did not immediately relay this
information to Dr. Shinde.
At about 3:40 a.m., Nurse Pickett again took a blood
pressure reading and found it to be elevated. Nurse Pickett
then called Dr. Shinde at 4:00 a.m. There is a conflict in
their testimony concerning what Nurse Pickett reported. Nurse
Pickett states that Dr. Shinde was given a comparison of two
blood pressure readings. Dr. Shinde recalls being told of but
one reading, which was elevated. Both testified that Nurse
Pickett told Dr. Shinde that the patient was unable to void.
Nurse Pickett could not recall reporting the patient's
abdominal pain or headache. Dr. Shinde recalled being told of
abdominal pain, though it was not termed "epigastric," and had
no recollection of being told of a headache.
Dr. Shinde asked for the results of blood tests that had
been performed and was given those results by Nurse Pickett.
Dr. Shinde did not specifically mention preeclampsia or ask any
questions about its possibility. Based on the information from
Nurse Pickett, Dr. Shinde concluded that Berdyck had a gastric
disturbance from flu and dehydration. Dr. Shinde ordered Nurse
Pickett to keep the patient quiet and to observe her blood
pressure closely.
Nurse Pickett took another blood pressure reading about
five minutes after the conversation with Dr. Shinde, finding it
to be 192/112. Nurse Pickett did not report the finding to Dr.
Shinde. Nurse Pickett took no further blood pressure readings
and did not report again to Dr. Shinde. Nurse Holzapfel later
returned to the obstetrics unit and told Nurse Pickett to watch
Berdyck's blood pressure and to feel free to call Dr. Shinde.
At 5:15 a.m., Nurse Pickett heard noises from Berdyck's
room and entered, finding Berdyck in a grand mal seizure. Dr.
Shinde was called and came to the hospital immediately. Dr.
Shinde treated Berdyck's eclamptic seizure by administering
magnesium sulfate. Dr. Shinde arranged for the delivery of
Berdyck's child. A healthy baby boy was delivered surgically.
Berdyck suffered a paralysis of her left side as a result
of her eclamptic seizure. She was transferred to a hospital in
Toledo, where she remained for three months. Though some of

her neurological and muscular faculties have returned, Berdyck
has not made a complete recovery.
Berdyck filed her complaint against Dr. Shinde and the
hospital, alleging breaches of their duties of care. The
matter was referred for arbitration, and extensive evidence was
presented concerning the standard of care required of Dr.
Shinde and of the hospital and its registered nurses.
It was generally agreed that Berdyck's eclamptic seizure
could have been prevented had magnesium sulfate, the treatment
of choice, been administered to Berdyck at or shortly after
4:00 a.m. Dr. Shinde stated that, in hindsight, he should have
gone to the hospital on receiving Nurse Pickett's report of an
elevated blood pressure then, but at the time he did not
believe it was necessary. His attorney stipulated that Dr.
Shinde had deviated from the standard of care required of him
when he did not then go to the hospital and that Dr. Shinde's
failure was a proximate cause of Berdyck's seizure, but not the
sole proximate cause.
Expert witnesses in the fields of medicine and nursing
testified that the hospital nurses deviated from the required
standard of care in failing to recognize the signs and symptoms
of preeclampsia presented by Berdyck, in failing to keep her
under close observation, and in failing to make the appropriate
report of the patient's preeclamptic symptoms to her
physician. Dr. Shinde testified that had other symptoms of
preeclampsia been reported along with the elevated blood
pressure he would likely have been alerted to it. Dr. Shinde
also testified that his instruction to observe the blood
pressure closely implied that the nurses should call him again
if elevated readings were repeated, which was not done.
The arbitration panel awarded judgment to Berdyck for
$1,250,000, assigning eighty percent of the liability to Dr.
Shinde and twenty percent to the hospital. The award was
rejected by Berdyck and by Dr. Shinde and brought before the
trial court.
A motion for summary judgment was filed by the hospital.
The trial court granted the hospital's motion, ordering the
hospital dismissed from the case. The court stated that it
accepted the testimony of Nurse Pickett. The trial court held
that the plaintiff's claim for relief would require nurses to
engage in the practice of medicine when their only duty to the
patient is to inform the attending physician of the patient's
condition and to follow the physician's orders relating to the
patient's care. The trial court certified its order dismissing
the hospital, pursuant to Civ.R. 54(B).
The court of appeals reversed the summary judgment
dismissing the hospital, holding that there was conflicting
evidence concerning whether the nurses and the hospital had
breached their duties of care, which is to be determined from
the standard of care applicable to nurses in the community.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Jack M. Lenavitt, L.P.A., and Mark L. Schumacher, for
appellee Donna Berdyck.
Jacobson, Maynard, Tuschman & Kalur, James M. Tuschman,
Nancy D. Moody and Janis L. Small, for appellee S.G. Shinde,

M.D.
Manahan, Pietrykowski, Bamman & DeLaney, William F.
Pietrykowski and H. William Bamman; Robison, Curphey &
O'Connell and E. Thomas Maguire, for appellant H.B. Magruder
Memorial Hospital.
Cloppert, Portman, Sauter, Latanick & Foley, Russell E.
Carnahan and David G. Latanick, for amicus curiae, Ohio Nurses
Association.

Grady, J. This case presents two issues for
determination. First, what is the duty of care owed by a nurse
to a patient who is admitted under the care of an attending
physician to a hospital at which the nurse is employed?
Second, does negligence on the part of the attending physician
necessarily relieve the hospital of liability for a breach of
the nurse's duty of care?
Our review in this case is governed by the standard for
granting a motion for summary judgment:
"Civ.R. 56(C) specifically provides that before summary
judgment may be granted, it must be determined that: (1) no
genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of
law; and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that
party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,
327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Van Fossen v.
Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117, 522 N.E.2d
489, 505.
Under the doctrine of respondeat superior, a hospital is
liable for the negligent acts of its employees. Klema v. St.
Elizabeth's Hosp. of Youngstown (1960), 170 Ohio St. 519, 11
O.O.2d 326, 166 N.E.2d 765. To establish the negligence of a
hospital employee, an injured party must demonstrate that a
duty of care was owed to the injured party by the employee,
that the employee breached that duty, and that the injuries
concerned were the proximate result of the breach.
A "duty" is an obligation imposed by law on one person to
act for the benefit of another person due to the relationship
between them. When risks and dangers inherent in the
relationship or incident to it may be avoided by the obligor's
exercise of care, an obligor who fails to do so will be liable
to the other person for injuries proximately resulting from
those risks and dangers if the injuries were reasonably
foreseeable. In negligence cases the duty is always the same:
to conform to the legal standard of reasonable conduct in the
light of apparent risk. What a defendant must do, or must not
do, is a question of the standard of conduct reasonably
required to satisfy the defendant's duty. See Prosser & Keeton
on Torts (5 Ed. 1984) 356, Section 53.
In general, a standard of "reasonable" conduct implies a
minimum standard of care. But, if a condition by its nature
requires the application of knowledge and skill superior to
that of the ordinary person, one who possesses that superior
knowledge and skill and who fails to employ it for the benefit
of another when their relation requires it will be held liable

for injuries proximately resulting from that failure. Such
persons must use the care and skill reasonable in the light of
their superior learning and experience, not simply a minimum
standard of care. For those persons the relevant standard of
conduct is "good practice." See id. at 185, 189, Section 32.
The most frequently applied example of persons of superior
knowledge and skill who are held to a standard of good practice
is that of physicians. The practice of medicine, which
includes the diagnosis of an adverse health condition and the
prescription of a course of treatment for its management and
care, is limited by law to licensed physicians. See R.C.
4731.34. In order to obtain licensure, physicians must
demonstrate a level of education and proficiency required by
law. See R.C. 4731.09, 4731.091; 4731.11 et seq.
The law imposes on physicians engaged in the practice of
medicine a duty to employ that degree of skill, care and
diligence that a physician or surgeon of the same medical
speciality would employ in like circumstances. Bruni v.
Tatsumi (1976), 46 Ohio St.2d 127, 130, 75 O.O. 2d 184, 186,
346 N.E.2d 673, 676. A negligent failure to discharge that
duty constitutes "medical malpractice" if it proximately
results in an injury to the patient. Whether negligence exists
is determined by the relevant standard of conduct for the
physician. That standard is proved through expert testimony.
Id. at 131-132, 75 O.O.2d at 186-187, 346 N.E.2d at 677.
Neither the expert nor the standard is limited by geographical
considerations. Id. at 134-135, 75 O.O.2d at 188, 346 N.E.2d
at 679.
Nurses are, and have been since 1915, also subject to
licensure by the state. (106 Ohio Laws 191.) Like physicians,
professional nurses must demonstrate a level of education and
proficiency required by law in order to be licensed. At the
time Berdyck was a patient at H.B. Magruder Memorial Hospital
in 1986, the practice of professional nursing was defined in
R.C. 4723.06:
"'Practice of professional nursing' means the performance
for compensation of acts requiring substantial judgment and
specialized skills based on knowledge and application of
scientific principles learned in an approved school of
professional nursing. Acts of medical diagnosis or
prescription of medical, therapeutic, or corrective medical
measures by a nurse are prohibited."
The definition of nursing practice was amended in 1988,
and is now set forth in more detail in R.C. 4723.02(B).1 While
the current definitional statute does not include a prohibition
against medical practice, R.C. 4723.151 now provides: "Medical
diagnosis, prescription of medical measures, and the practice
of medicine or surgery or any of its branches by a nurse are
prohibited." See, also, Richardson v. Doe (1964), 176 Ohio St.
370, 27 O.O.2d 345, 199 N.E.2d 878.
Because they are prohibited from practicing medicine,
hospitals and nurses cannot pass on the efficacy of a course of
treatment. See Albain v. Flower Hosp. (1990), 50 Ohio St.3d
251, 259, 553 N.E.2d 1038, 1046. They are, nevertheless,
required to assist the physician to do so when the hospital
admits the patient for that purpose at the physician's order or
request and places the patient in the care of its nursing

staff. Then, "* * * accepted standards of nursing practice
include the duty to keep the attending physician informed of a
patient's condition so as to permit the physician to make a
proper diagnosis and devise a plan of treatment for the
patient." Id., 50 Ohio St.3d at 265, 553 N.E.2d at 1051.
In order to fulfill the foregoing duty, nurses must
perform a competent nursing assessment of the patient to
determine those signs and symptoms presented by the patient
that are significant in relation to the attending physician's
tasks of diagnosis and treatment. Because nurses are persons
of superior knowledge and skill, they must employ that degree
of care and skill that a nurse practitioner of ordinary care,
skill and diligence should employ in like circumstances.
Whether a nurse has satisfied or breached the duties of care
owed to the patient is determined by the applicable standard of
conduct.
The standard of conduct applicable to this issue is proved
by expert testimony. "In a negligence action involving the
professional skill and judgment of a nurse, expert testimony
must be presented to establish the prevailing standard of care,
a breach of that standard, and, that the nurse's negligence, if
any, was the proximate cause of the patient's injury." Ramage
v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97,
592 N.E.2d 828, paragraph one of the syllabus. In a negligence
action involving conduct within the common knowledge and
experience of jurors, expert testimony is not required. Id. at
103, 592 N.E. 2d at 833. Examples of the latter are
allegations of negligence with regard to patients who fell from
their hospital beds while unattended. See Jones v. Hawkes
Hosp. of Mt. Carmel (1964), 175 Ohio St. 503, 26 O.O.2d 170,
196 N.E.2d 592; Burks v. Christ Hosp. (1969), 19 Ohio St.2d
128, 48 O.O.2d 117, 249 N.E.2d 829. In this case, as the
negligence action brought by Berdyck involves the professional
skill and judgment of nurses employed by the hospital, expert
testimony is required to prove the relevant standard of conduct.
The hospital admitted that accepted standards of nursing
practice require its obstetrical staff nurses to be able to
recognize major obstetrical complications, including
preeclampsia. Nurse Holzapfel admitted a lack of knowledge of
the symptoms of preeclampsia when Berdyck was admitted. Dr.
Harlan Giles, an expert witness for Berdyck, opined essentially
that standard nursing care requires that an obstetrical nurse
be aware of the signs and symptoms of preeclampsia and that
Nurse Pickett lacked an appropriate basic level of nursing
information about that condition and its symptoms.
Patricia Sexton-Zgrabik, R.N., an obstetrical nurse called
as an expert witness for Berdyck, stated that a nurse presented
with Berdyck's pregnant condition and symptoms should be
concerned about the possibility of a seizure and should watch
the patient very closely. The nurse should assess the
patient's reflexes and monitor the blood pressure
continuously. The nurse should also institute measures to
protect against seizure, including having an oral airway or
tongueblade available, padding the bed side rails, darkening
the room, and positioning the patient on her left side to aid
the reduction of blood pressure. The nurse should also have
magnesium sulfate readily available. The witness testified

that Nurse Pickett's failure to perform these procedures was
conduct below that required by the applicable standard of care,
and that the hospital was negligent in not providing personnel
trained in the measures necessary.
Dr. William Rayburn, an expert witness for the hospital,
opined that the acts of the hospital's nurses did not directly
cause Berdyck's seizure, but he conceded that in their care of
Berdyck the nurses at the hospital failed to comply with the
standard of care required by that hospital's rules and
regulations for nursing service. Dr. Rayburn stated that a
reasonably prudent and careful nurse would have reported the
symptoms of headache, persistent vomiting, epigastric pain,
decreased urine output, edema, and high blood pressure to the
attending physician. He also conceded that Nurse Pickett did
not possess the minimum knowledge of obstetrics reasonably
required of a nurse placed in charge of a hospital obstetrics
unit.
Dr. Christopher Marlowe, an expert witness for Dr. Shinde,
testified that Nurse Pickett did not give Dr. Shinde "anywhere
near enough information to form an opinion as to what was going
with his patient."
The foregoing testimony, if believed, demonstrates that
the hospital's nurses failed to perform their duties according
to the applicable standard of conduct. Failure to conform to
that standard of conduct is evidence that the nurses, and the
hospital employing them, breached the duty they owed their
patient to exercise that degree of care and skill that the
condition of the patient reasonably required.
Appellant hospital argues that the court of appeals erred
when it held that the standard of conduct required of a nurse
is that applicable to nurses in the community. We do not
understand the court to have imposed a locality rule in its use
of the term "community." Rather, the court was concerned with
the community of persons engaged in the practice of
professional nursing. As with physicians, geographical
considerations or circumstances do not control when identifying
that community. See Bruni v. Tatsumi, supra. However, the
statutory standards for licensure are relevant to the standard
of conduct required of licensed nurses in Ohio, and may be used
to prove that standard.
Appellant hospital also argues that the court of appeals
misconstrued the rule of Albain v. Flower Hosp., supra, when it
held that nurses are held to a greater accountability than
informing physicians and following their orders. We see no
error in the view of the court of appeals. Albain held that
the hospital and its employees have a duty to follow the orders
of an attending physician, of which the duty to keep the
physicians informed is an integral part, but that merely
following the orders of a physician is not the full extent of
the duty of care owed to a patient by a nurse. Id. at 264-265,
533 N.E.2d at 1050-1051. In order to satisfy that duty to its
full extent, a nurse must perform a competent nursing
assessment of the patient's condition according to the
standards of conduct required of a nurse practitioner. The
evidence, if believed, reasonably permits a conclusion that the
nurses here failed in that duty.
Appellee Berdyck also argues that the hospital is liable

for the failure of its nurses to seek definitive care to
prevent the injuries she suffered. Appellee is joined in this
view by amicus Ohio Nurses Association, which urges adoption of
a rule requiring licensed nurses to advocate on behalf of their
patients when they do not receive the care their condition
requires so as to obtain that care for them.
Both physicians and nurse practitioners are persons who
have undertaken work calling for special skill. Both are
required not only to exercise reasonable care in what they do,
but also to possess a standard minimum of special knowledge and
ability for persons in their callings. However, their
respective duties to the patient differ because their
respective relationships with the patient are different.
Correspondingly, the standard of conduct required of each --
what each must do or not do to satisfy his or her duties --
will differ.
The law imposes on the physician the exclusive duty to
diagnose the patient's adverse health condition and to
prescribe a course of treatment for its management and care.
Nurse practitioners employed by a hospital to which the patient
is admitted by an attending physician are under a duty to
support that process. The standard of conduct required of a
nurse cannot include the process of medical diagnosis and
treatment, which is reserved to the physician. Nevertheless,
the fact that a particular act is within a physician's duty of
care does not necessarily exclude it from the duty of care owed
to the patient by the nurse. Depending on the facts and
circumstances, the same act may be within the scope of their
separate duties of care because it is, coincidentally, within
their respective standards of conduct. Whether it is or is not
is a question of fact to be determined by the standard of
conduct required, which is proved by expert testimony.
A nurse who concludes that an attending physician has
misdiagnosed a condition or has not prescribed the appropriate
course of treatment may not modify the course set by the
physician simply because the nurse holds a different view. To
permit that conduct would allow the nurse to perform tasks of
diagnosis and treatment denied to the nurse by law. Richardson
v. Doe, supra. However, the nurse is not prohibited from
calling on or consulting with nurse supervisors or with other
physicians on the hospital staff concerning those matters, and
when the patient's condition reasonably requires it the nurse
has a duty to do those tasks when they are within the ordinary
care and skill required by the relevant standard of conduct.
Of course, hospitals, and the nurses they employ, owe a duty to
every patient whom they admit to save the patient from an
illegal operation or false, fraudulent, or fictitious medical
treatment. Albain v. Flower Hosp., supra, at 259, 553 N.E.2d
at 1046. That is not an issue here, however.
Appellee Berdyck's expert witness Patricia Sexton-Zgrabik
testified that a nurse trained to recognize preeclampsia and
seeing the symptoms presented by Berdyck would, in the event of
the failure of the attending physician to deal with them, seek
the timely intervention of another physician. She also
testified that a reasonably prudent nurse who observed these
repeated high blood pressures would take action to override the
physician's orders and invoke the necessary treatment protocol.

Whether the standard of conduct articulated by this expert
witness governs the nurses' duties of care is a question of
fact, determined from all relevant facts and circumstances.
The trier must determine whether the course the witness
recommends is reserved to the practice of medicine and,
therefore, outside the duties of a nurse. However, as the same
witness testified that the nurses in this case negligently
failed to recognize the symptoms of preeclampsia, it is
hypothetical, at best, to require them to act to prevent that
which they did not know. Of course, their failure to recognize
the condition may in itself produce liability if it is shown to
be a proximate cause of the injury.
Viewing the evidence as Civ.R. 56(C) requires, we conclude
that a genuine issue of material fact exists concerning whether
the nurses employed by the hospital were required by the duty
of care they owed Berdyck to inform Dr. Shinde of Berdyck's
condition otherwise than as they did and/or to respond to and
follow the orders they were given by Dr. Shinde other than as
they did.
Appellant hospital also argues that Dr. Shinde's admission
of negligence makes the hospital's negligence, if any, remote
to the injuries sustained by Berdyck, not actionable, and
relieves the hospital of any liability.
Dr. Shinde stipulated that he was negligent in not going
to the hospital when he received a call from Nurse Pickett at
4:00 a.m., and that his negligence was a proximate cause,
though not the sole proximate cause, of Berdyck's injuries.
Dr. Shinde also stated that had Nurse Pickett given him a
fuller report of Berdyck's symptoms he would more likely have
been alerted to suspect preeclampsia.
The intervention of a responsible human agency between a
wrongful act and an injury does not absolve a defendant from
liability if that defendant's prior negligence and the
negligence of the intervening agency co-operated in proximately
causing the injury. If the original negligence continues to
the time of the injury and contributes substantially thereto in
conjunction with the intervening act, each may be a proximate,
concurring cause for which full liability may be imposed.
"Concurrent negligence consists of the negligence of two or
more persons concurring, not necessarily in point of time, but
in point of consequence, in producing a single indivisible
injury." Garbe v. Halloran (1948), 150 Ohio St. 476, 38 O.O.
325, 83 N.E.2d 217, paragraph one of the syllabus.
In order to relieve a party of liability, a break in the
chain of causation must take place. A break will occur when
there intervenes between an agency creating a hazard and an
injury resulting therefrom another conscious and responsible
agency which could or should have eliminated the hazard. Hurt
v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 323, 58
O.O. 119, 130 N.E.2d 824, paragraph one of the syllabus; Thrash
v. U-Drive It Co. (1953), 158 Ohio St. 465, 49 O.O. 402, 110
N.E.2d 419, paragraph two of the syllabus. However, the
intervening cause must be disconnected from the negligence of
the first person and must be of itself an efficient,
independent, and self-producing cause of the injury.
Thus, we hold that the intervening negligence of an
attending physician does not absolve a hospital of its prior

negligence if both co-operated in proximately causing an injury
to the patient and no break occurred in the chain of causation
between the hospital's negligence and the resulting injury. In
order to break the chain, the intervening negligence of the
physician must be disconnected from the negligence of the
hospital and must be of itself an efficient, independent, and
self-producing cause of the patient's injury.
The evidence, construed most strongly against
defendant-appellant hospital as required by Civ.R. 56(C),
reasonably permits a conclusion that the negligence admitted by
Dr. Shinde and the possible negligence of the hospital may be
concurring proximate causes of Berdyck's injuries. Therefore,
the hospital is not entitled to summary judgment on the issue.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright and Pfeifer,
JJ., concur.
F.E. Sweeney, J., concurs in judgment only.
Thomas J. Grady, J., of the Second Appellate District,
sitting for Resnick, J.

FOOTNOTE:
1 R.C. 4723.02(B) provides:
"'Practice of nursing as a registered nurse' means
providing to individuals and groups nursing care requiring
specialized knowledge, judgment, and skill derived from the
principles of biological, physical, behavioral, social, and
nursing sciences. Such nursing care includes:
"(1) Identifying patters of human responses to actual or
potential health problems amenable to a nursing regimen;
"(2) Executing a nursing regimen through the selection,
performance, management, and evaluation of nursing actions;
"(3) Assessing health status for the purpose of providing
nursing care;
"(4) Providing health counseling and health teaching;
"(5) Administering medications, treatments, and executing
regimens prescribed by licensed physicians, dentists, and
podiatrists;
"(6) Teaching, administering, supervising, delegating, and
evaluating nursing practice."