Opinion
C.A. No. 08C-12-223 FSS.
Submitted: May 2, 2011.
Decided: June 13, 2011.
Upon Defendant's Post-Trial Motions — DENIED, Upon Plaintiff's Motion for Pre-Judgment Interest-DENIED, Upon Plaintiff's Motion for Costs and Post Judgment Interest — GRANTED.
A jury awarded Plaintiff $15 million against the surgeon who injured Plaintiff's spinal accessory nerve (SAN) and the orthopedist who misdiagnosed the injury as a "frozen shoulder" for 16 months leaving Plaintiff's shoulder permanently incapacitated. The orthopedist joins the surgeon's motion for a new trial arguing Plaintiff performed better despite Defendants' negligence, and because Plaintiff has improved since the injury. The orthopedist also moves for a new trial on damages, arguing for the first time that the jury instructions were overly focused on Plaintiff's loss of future earnings claim. Alternatively, the orthopedist moves to pay the loss of future earnings award periodically, and he moves to remit general damages to $500,000.00.
Plaintiff moves for costs and interest. Plaintiff's motion for costs is unopposed. Plaintiff also contends she is entitled to post-judgment interest accruing at $2,363.01 per day since November 18, 2010. She further contends she is entitled to $6,551,199.30 in p r e — judgment interest because Defendants rejected Plaintiff's pre-trial settlement offer. Defendants contend the offer was invalid because it was contingent on their joint approval.
The surgeon, who the jury found 35% liable, has settled. For the reasons explained below, remaining Defendant's motions are denied. Briefly, the evidence supports the finding that Defendant orthopedist was negligent; Defendant failed to object specifically to the jury instructions; the general damages award does not, under the circumstances, shock the court's conscience; and the court will not interfere with Plaintiff's loss of future earnings award by ordering periodic payments. As to Plaintiff's motions, costs and post-judgment interest are granted, but not pre-judgment interest.
I.
Dr. Amy Patrick, a gastroenterologist, sued Dr. Katherine Sahm, the surgeon, and Dr. Victor Kalman, the orthopedist, for medical negligence. During an operation to remove an errant lymph node, the surgeon destroyed Plaintiff's SAN. It is unknown whether the nerve was transected, but that does not matter. The nerve is useless. Plaintiff consulted Dr. Kalman, who diagnosed the problem as a "frozen shoulder." It may be that there was some truth to the diagnosis. But, Dr. Kalman missed the SAN injury, and, for sixteen months, he missed or overlooked symptoms suggesting that potentially disabling injury. Basically, between the surgical injury and the time it took to diagnose it, Dr. Patrick's shoulder was ruined and her ability to maintain a highly lucrative medical practice was dramatically and permanently limited.
When the SAN injury was diagnosed, it was too late to repair. Plaintiff's trapezius muscle, which worked her shoulder, was atrophied and useless. All that was left was a radical muscle transfer procedure. That remedial procedure was somewhat successful, but the doctor who performed it, Dr. Louis Bigliani, testified that the delay between the injury and the surgery was harmful and Dr. Patrick has improved as much as she ever will. He considers her as partially, permanently disabled. Dr. Patrick testified how her recovery from the muscle transfer was a "horrible, miserable experience."
Beyond ongoing pain and disfigurement, Defendant's negligence had a serious effect on Dr. Patrick's lucrative livelihood, as mentioned. One of Dr. Patrick's partners, Dr Prasad Kanachana, testified that while Dr. Patrick's trapezius was dying under Dr. Kalman's care, Dr. Patrick "was taking a lot longer for the procedures." And, Dr. Patrick "was taking longer breaks between the procedures." Ultimately, Dr. Patrick's partners "would be done by two, two-thirty, but she would be done only after four, four-thirty." The average number of endoscopies she could perform per week dropped from 35-40 to 3-5.
Despite the muscle transfer procedure, she can no longer do rounds at the hospital and she is no longer the managing partner in the practice group she helped found. The group has cut Dr. Patrick's pay, and one of her partners does not speak to her. Dr. Patrick testified to the tension in the partnership, and Dr. Kanachana testified Dr. Patrick's work barely covers overhead. Further, the group is concerned about their malpractice liability based on the quality of Dr. Patrick's work. In fact, the group hired counsel to consider whether it could demote Dr. Patrick to part-time status. The jury probably believed that even if Dr. Patrick has not been forced out, she has been handed her hat.
Defendants maintained a general objection to Dr. Patrick's loss of future earnings claim throughout the litigation. Defendants characterized the claim as "speculative" and "highly prejudicial." Defendants' proposed jury instructions entirely omitted mention of lost future earnings. The court's propsed instructions included one.
After the jury retired, the court and Defendants engaged in the following colloquy on the instructions:
THE COURT: Counsel, objections to the instructions?
PLAINTIFF'S COUNSEL: No, your Honor.
THE COURT: Mr. Goewert?
SURGEON'S COUNSEL: Your Honor, we had an objection to the instruction regarding the future damage claim. Give me one second.
(Brief pause.)
SURGEON'S COUNSEL: I think that's it, your Honor. Not bad. THE COURT: Nothing more particular? Mr. Elzufon, do you have any objections?
DR. KALMAN'S COUNSEL: We believe that the future loss of earnings claim submitted by codefendants is the correct one. But, otherwise, that's it. Thank you.
The instructions first mentioned loss of future earnings as a kind of available damages. Later, the court explained that "future damages necessarily involve some degree of uncertainty," and "a plaintiff is not required to prove her losses with mathematical precision." The court then instructed the jury about resolving uncertainty and using its "sound discretion in fixing an award of damages. . . ." The charge did not caution the jury about assuming a factor was more important because it was mentioned more than once. The court also charged the jury against speculation.
The specific instruction on future loss of earnings was:
Concerning Plaintiff's claim for loss of future earnings, by their nature, future events are somewhat uncertain and awards of future damages necessarily involve some degree of uncertainty. Thus, a plaintiff is not required to prove her losses with mathematical precision. Rather, the law simply requires Plaintiff to provide as much certainty and accuracy as the circumstances of the case permit.
If you find that Plaintiff has proven with reasonable probability that future damages exist as a result of one or both Defendants' medical negligence, neither uncertainty as the extent of those damages nor difficulty in measuring her lost earnings with precision bars her recovery. And while an award of those damages cannot be based upon mere speculation, the law provides that uncertainty about their calculation is to be resolved against the Defendants who caused the loss.
You are to use sound discretion in fixing an award of damages, drawing reasonable inferences where you deem appropriate from the facts and circumstances in evidence.
As mentioned, the jury awarded Plaintiff $15M. The jury found Dr. Sahm 35% liable and Dr. Kalman 65% liable. The parties did not ask the court to instruct the jury to apportion its award between general damages and future earnings. Based on an economist's testimony, however, Dr. Patrick's future earnings would have ranged from $7,242,343.00 if she remained at her practice group, or $9,592,003.00 if she found alternate employment. Defendant estimates, therefore, the general damages award ranged from $5,407,997.00 to $7,757.657.00.
II. A.
Before the surgeon settled she moved for a new trial under Rule 59, arguing the verdict "was contrary to the great weight of the evidence and manifestly unreasonable." Dr. Kalman adopted the surgeon's motion. The relevant part of that motion contends while under Dr. Kalman's care, Dr. Patrick performed "approximately 3000 endoscopic procedures, all done without a fully functional trapezius muscle," which "was more than she had in the prior years."
Dr. Patrick's ability to work was vigorously litigated. Regardless of the number of procedures she performed while under Dr. Kalman's care, Dr. Patrick and her expert, Dr. Kanchana, testified at length about her professional limitation. As mentioned, it took Dr. Patrick two hours longer per day to perform those endoscopies. Dr. Bigliani testified that Dr. Patrick has now reached the full maximum benefit of the muscle transfer procedure; she is partially, permanently disabled. Each side presented an expert who demonstrated Dr. Patrick's work and the effect the SAN injury would have. A reasonable jury could, and did, conclude from the evidence that because of Dr. Kalman's negligence, Dr. Patrick is now restricted to performing three to five endoscopies per day, and she suffered the future loss she and her economist predicted.
The court will only set aside a jury's verdict if "the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result." It is common in cases like this for defendants to focus on the evidence from which the jury could have found in their favor on liability and damages. Here, Dr. Kalman presented that sort of evidence. And, he fastens on it. But, the fact that Dr. Kalman presented a case is not the focus of the court's inquiry now. The jury, however, obviously accepted Dr. Patrick's view, including pain and suffering, plus enormous lost earnings potential.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
B.
As mentioned, Dr. Kalman now objects to the instruction on future damages with specificity:
(a) the additional instruction on Future Loss of Earnings was superfluous and over-focused the jury on lost wages and (b) the Court erred when it over-emphasized future loss of earnings without a precautionary instruction to mitigate the repetition.
He did not, however, offer that objection before the charge or, as the colloquy shows, when the court asked for objections. Had Dr. Kalman timely objected to the instructions' emphasis, the court could have addressed his concern before the verdict. As Chrysler v. Quimby holds:
The very purpose of Rule 51 is to abolish the old practice of general exceptions to the charge, on the basis of which counsel for the defeated litigant could examine the instructions at his leisure, after verdict, and take advantage of any slips of the trial judge in submitting to the jury the contentions and legal principles growing out of the case. This practice was manifestly unfair.
144 A.2d 123, 139 (Del. 1958).
Thus, the objection presented now was waived at trial. More importantly, the instructions were legally correct and not objectionable. Dr. Patrick's future earnings were vigorously argued and the instruction, including its emphasis, addressed them appropriately. There was no error, plain or otherwise.
Riggins v. Mauriello, 603 A.2d 827, 830 (Del. 1992); see also Doochack v. Hobbs, 645 A.2d 568 (Del. 1994) (TABLE).
C.
As mentioned, Dr. Kalman estimates the general damages award ranges from $5 to 6.8M, which he moves to remit to $500,000. The court will not set aside a jury's award "unless it is so grossly excessive as to shock the court's conscience and sense of justice." To be grossly excessive, the award must be "the result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law."Dr. Kalman summarizes, and minimizes, Dr. Patrick's general damages as:
1. Pain that did not require a prescription;
2. Future, lifelong pain that will not require a prescription;
3. The "horrible experience" recuperating from the muscle transfer;
4. A lifetime of in-home physical therapy; and
5. Emotional distress.
He contends the award "will shock the conscience of the court when the evidence in support of [Dr.] Patrick's claim for general damages is closely examined."
Some of Dr. Kalman's contentions rely on evidence already discussed, including Dr. Patrick's "excellent recovery" from the muscle transfer procedure and the greater number of procedures she performed as her trapezius muscle atrophied unnoticed. For the reasons already discussed in the Rule 59 motion, that evidence does not undermine the general damages award.
Dr. Patrick's "pain and suffering is a matter for the judgment of the jury." Dr. Patrick faces the grim reality that although the radical corrective surgery went well, the procedure only restored her shoulder to limited capacity. She has largely lost the use of her shoulder and arm, forever. The fact Dr. Patrick was never prescribed pain medication does not undermine the award, particularly considering the expert testimony about Dr. Patrick's physical condition that has seriously effected her ability to enjoy life. Besides the prolonged discomfort Dr. Patrick endured recuperating from the muscle transfer procedure, she was immobilized for several months, and she now requires a lifetime of physical therapy. As it is, she will have to adapt to the loss and relearn how to do tasks most take for granted.
Aleardi v. Tiberi, 269 A.2d 404, 405 (Del. 1970).
Dr. Patrick was disfigured by the initial surgery's results and the corrective surgery's incision. Her shoulder's appearance probably is less obvious to an objective observer, but the jury undoubtedly understood that she will see herself as having significant disfigurement.
Again, before this happened, Dr. Patrick was a young, active, athletic, successful mother and physician. Now she will live her life with a serious physical disability that will significantly reduce her income and her quality of life. Under the circumstances, the general damages award does not shock the conscience of the court.
Fin all y, as to damages, the court acknowledges that the award was toward the most Dr. Patrick could have received. The notion, however, that all the jury could have awarded for pain and suffering was $500,000, as Dr. Kalman requests, that is shocking. The jury could, and probably did, award more than that based on the pain and suffering from the muscle transfer surgery alone.
D.
Finally, the court sees no basis for ordering periodic payments of Plaintiff's lost future earnings award. Eighteen Del. C. § 6864(a) is not intended to let a defendant structure its payments of lost earnings according to an earnings table as Defendant asks. And, that assumes the court could decide whether the jury awarded Plaintiff $7,242,343.00 or $9,592,003.00, or an amount in between, in lost earnings, the discount rate, and so on. Besides that, Defendant did not notify the court he would seek to make periodic payments, which would have allowed the court to instruct the jury to apportion its award accordingly. Finally, Defendant has not identified any security Plaintiff could turn to if he could not pay. In short, the court will not impose a structured settlement on Dr. Patrick.
18 Del. C. § 6864(a) provides:
Where a person recovers a judgment against a health care provider, the Court may, after making a determination as to the amount of such judgment which was awarded as compensation for future pain and suffering, if any, the amount of such judgment awarded for future expenses of care of the injured party made necessary by reason of the injury involved, if any, and the amount of such judgment awarded as compensation for any other future damages, if any[.]
III.
Dr. Patrick moves for $18,075.00 in costs associated with court fees and expert witness fees. Court costs are recoverable under 10 Del. C. § 5101, and expert witness fees are recoverable under 10 Del. C. § 8906. Dr. Patrick also moves post-judgment interest at a daily rate of $2,363.01 accruing since November 18, 2010. Both motions are unopposed.
Dr. Patrick also moves for $6,551,199.30 in pre-judgment interest that accrued since January 2, 2007, the date the SAN was injured. She contends the written settlement demand was valid under 6 Del. C. § 2301(d) even though it was "contingent upon both the Sahm and the Kalman defendants[']" agreement. The demand also provided "Plaintiffs will not settle as to one defendant but rather only if both [Defendants] participate. . . ." In other words, Dr. Patrick contends that even though, by its terms, Dr. Kalman could not accept the settlement offer on his own, it was, nonetheless, a valid offer that now entitles her to pre-judgment interest.
6 Del. C. § 2301(d) provides:
In any tort action for compensatory damages in the Superior Court or the Court of Common Pleas seeking monetary relief for bodily injuries, death or property damage, interest shall be added to any final judgment entered for damages awarded, calculated at the rate established in subsection (a) of this section, commencing from the date of injury, provided that prior to trial the plaintiff had extended to defendant a written settlement demand valid for a minimum of 30 days in an amount less than the amount of damages upon which the judgment was entered.
Dr. Kalman has adopted Dr. Sahm's answer that the joint demand was invalid because it never gave him "an independent opportunity to settle the case." Alternatively, Dr. Kalman argues, via Dr. Sahm, that Dr. Patrick never specifically requested pre-judgment interest in the pleadings, and that 6 Del. C. § 2301 violates the 8th Amendment as applied by the 14th Amendment.
A written settlement demand is meant to "to promote earlier settlement of claims by encouraging parties to make fair offers sooner, with the effect of reducing court congestion." As a matter of fairness, "[i]ndividualized offers facilitate a reasoned evaluation of the merits of each [parties'] claim and, if accepted, can be entered as judgments." By making the offer "contingent upon both the Sahm and the Kalman defendants[']" acceptance, Dr. Patrick made it impossible for Dr. Kalman to settle on his own. Therefore, Dr. Patrick's offer does not entitle her to an award of pre-judgment interest under 6 Del. C. § 2301(d).
Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425, 427 (Del. 2010); see also Cahall v. Thomas, 906 A.2d 24, 25-6 (Del. 2006) ( "the purpose of Rule 68 is to encourage settlement and avoid litigation by prompting parties to balance the risks and costs of litigation against the likelihood of success at trials.).
Cahall, 906 A.2d at 27.
cf. State Farm Mut. Auto. Ins. Co. v. Joanne Enrique, 16 A.3d 938 (Del. 2011) (TABLE) ( holding plaintiff was entitled to pre-judgment interest because she met all of 6 Del. C. § 2301(d)'s elements).
IV.
For the foregoing reasons, Defendant Victor Kalman's post-trial motions are DENIED. Plaintiff Amy Patrick's motion for $6,551,199.30 in pre-judgment interest is DENIED. Plaintiff Amy Patrick's motion for $18,075.00 in costs is GRANTED. Plaintiff Amy Patrick's motion for post-judgment interest accruing at a rate of $2,363.01 per day is GRANTED. The parties will submit an order to the court within ten business days reflecting the amount of post-judgment interest accrued from November 18, 2010 until June 13, 2011.IT IS SO ORDERED.