Shapira v. Christiana Care Health Services, Inc. (Summary)

VICARIOUS LIABILITY

Shapira v. Christiana Care Health Services, Inc., No. 392, 2013 (Del. Aug. 7, 2014)

The Supreme Court of Delaware affirmed a lower court’s judgment that a surgeon failed to obtain proper consent before performing a procedure on a patient, while remanding for instructions to vacate a supplemental jury verdict.

A patient suffering from multiple rib fractures presented to a hospital, where a thoracic surgeon determined he was a candidate for a non-FDA approved “On-Q” catheter procedure for pain management. The surgeon explained the procedure to the patient and obtained consent. However, the surgeon failed to tell the patient of other viable treatment methods for pain management, such as epidural anesthesia. Additionally, the surgeon failed to disclose that he had a personal interest in the use of the On-Q procedure, as the surgeon was under contract with the manufacturer, was a member of the corporation’s speaker’s bureau, and was conducting a study of the procedure’s effectiveness using patient data. After the surgery, the patient’s catheters became displaced, resulting in internal organ damage. The patient then sued the doctor for negligently failing to obtain proper informed consent, and for negligently performing the procedure. In addition, the patient sued the hospital for negligence because the surgeon was serving as the hospital’s agent. At trial, the jury verdict awarded the patient millions of dollars in damages, attributing 65% of total liability to the surgeon and 35% to the hospital. The hospital then asked the jury to specify what apportionment of its liability was attributable to the agency relationship and what was attributable to the hospital’s failure to properly supervise the surgeon’s study. The Superior Court granted the allowance of the question but refused to revise the verdict based on the jury’s answer. The surgeon appealed to the issue of informed consent, evidence of the experimental nature of the procedure, and pre-judgment and post-judgment interest. The hospital then cross-appealed regarding the supplemental jury question.

The court affirmed the Superior Court’s ruling that the patient was not given adequate disclosure to allow for proper informed consent. The patient was not made aware of the risks, alternative procedures, or the surgeon’s personal interest in administering the procedure. The court held that the evidence of the conflict of interest was admissible, as it spoke to the surgeon’s lack of disclosure and possible incentive for performing one surgery over another. Additionally, the court ruled that the Superior Court was correct in allowing only expert witnesses to testify as to whether the procedure was or was not experimental. Regarding the surgeon’s appeal to the pre-judgment and post-judgment interest, the court held the statute was clear that the interest applied when the demand was valid for a minimum of 30 days.

The court held that it was a mistake for the Superior Court to allow the hospital’s supplemental question to be presented to the jury. According to the court, the jury verdict should not be disturbed unless it is found to be unreasonable. Therefore, the court found the supplemental verdict invalid and ordered that it be vacated by the Superior Court.