© Valeriy-Fotolia
© Valeriy-Fotolia (Valeriy – Fotolia)

The Delaware Supreme Court has ruled that a $4.4 million jury verdict in a medical malpractice lawsuit should not have been apportioned to distinguish the defendant hospital’s liability in different roles.

The justices affirmed the damage award split between the doctor and the hospital but said the judge should not have asked the jurors to apportion the hospital’s liability between its capacity as the doctor’s employer and its independent failure to manage the doctor’s data collection.

“We find that there was no basis for granting the request for a supplemental jury verdict in the first place,” said Justice Carolyn Berger in Shapira v. Christiana Care Health Services. “‘Under Delaware law, enormous deference is given to jury verdicts,’ and they should not be disturbed unless ‘the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.’”

John Houghton fell from a ladder in December 2009, according to court documents. He suffered multiple rib fractures and other injuries. While being treated at Christiana Hospital, Dr. Nadiv Shapira, a thoracic surgeon, treated Houghton’s chest pain by inserting a catheter under the patient’s skin and over the ribs through a metal tunneling device.

The method of treating chest pain through a catheter is often referred to as the “On-Q procedure,” named for the device inserted into patients. However, the procedure has not been approved by the U.S. Food and Drug Administration and is considered an “off-label” use of the On-Q catheter, according to court documents.

Houghton accidently removed the catheters on the day after surgery, according to the court’s opinion. Shapira then performed another surgery to insert two new On-Q catheters, but one of those catheters became displaced and perforated some of Houghton’s internal organs. Houghton spent significant additional time in the hospital and underwent several surgeries to remove the catheter and repair the organ damage, according to court documents.

Houghton filed a medical negligence lawsuit against Shapira and alleged that Christiana Care Health Services, or CCHS, was also responsible because the doctor acted as an agent on behalf of the hospital. After an eight-day Delaware Superior Court trial, a jury found both Shapira and CCHS liable for negligence. The jury awarded $3.75 million in damages to Houghton and $650,000 to his wife for loss of consortium. Of the total liability, the jury proportioned 65 percent to Shapira and 35 percent to CCHS.

After the trial, CCHS asked Superior Court Judge M. Jane Brady to apportion its 35 percent liability. The hospital claimed it needed to know how much of the liability was attributed to its capacity as Shapira’s employer and how much was attributed to its independent failure to manage Shapira’s data related to the On-Q procedure.

Brady granted the hospital’s request, but refused to reform the original verdict based on the jury’s response. The jury allocated 25 percent of CCHS’s share of the damages to its failure to oversee Shapira’s data and studies and 75 percent to its agency relationship with the doctor.

Shapira appealed the jury’s verdict on several grounds, including challenging the jury’s decision to further divide CCHS’s portion of the damages award.

The en banc court included Delaware Court of Chancery Vice Chancellor J. Travis Laster, who sat by designation for retired Supreme Court Justice Jack B. Jacobs. It did not address Shapira’s claims, but instead held there was no basis to supplement the original jury verdict.

“CCHS did not object to the form of the original jury verdict sheet,” Berger said. “Nor did CCHS object to the jury instructions, which explained how the jury was to apportion liability. Quite simply, it was too late for CCHS to move to supplement the jury’s verdict once the verdict had been returned.”

Berger also noted that no one argued the original verdict was unreasonable or should have been apportioned in a manner different from the jury’s conclusion. Therefore, the court concluded there was no reasonable basis to ask the jury for a supplemental verdict.

Shapira also claimed the jury instruction on proximate cause contained an error of law because jurors could find that his actions caused or “help[ed] bring about the plaintiff’s injuries.” He argued that the instruction is inconsistent with the “but for” standard Delaware has adopted.

The court rejected Shapira’s argument. Berger said under settled Delaware law, the phrase “helps bring about” can be part of an accurate statement of the “but for” causation standard.

John A. Elzufon and Gary W. Alderson of Elzufon Austin Tarlov & Mondell represented Shapira.

Dennis D. Ferri and Allyson Britton DiRocco of Morris James represented Christiana Care.

The Houghtons were represented by Randall E. Robbins and Carolyn S. Hake of Ashby & Geddes.

Elzufon and Ferri did not return calls seeking comment. 

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.