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South Carolina Holds Heightened Duty Instruction Inapplicable to Medical Malpractice Claims; Net Operating Revenue in Closing Arguments Prejudicial


A paraplegic man was admitted to a hospital with a stage two pressure ulcer. The ulcer progressed to stage four. He underwent a colostomy and skin graft. Eventually the ulcer fully healed.

 

The man and his wife sued the hospital and individual nurses for negligence and loss of consortium. The jury was instructed that it is the general law applicable to all persons that if there is a great degree of danger present then there is a greater duty of care to prevent injuries to other persons, and that this principle applies to medical malpractice claims. The verdict form included two questions that began with the text, “We the jury find for the Plaintiff ... and against the Defendant HealthSouth Corporation ... and the following:,” followed by a list of the names of the individual nurses, from which the jury could select any or all or, alternatively, select “NONE OF THE ABOVE.” The jury entered a verdict in favor of the plaintiff against all of the defendants.

 

During the closing arguments of the penalty phase, plaintiff’s counsel stated that the hospital’s net operating revenue was $1.911 billion. The jury awarded over $300,000 in economic damages against all defendants, $4 million in non-economic damages against the hospital, and $8 million against the hospital in punitive damages. The hospital moved for a judgment notwithstanding the verdict, a new trial, and remittitur. The trial court denied these motions.

 

The hospital appealed on three grounds. First, the trial court erred when it instructed the jury that heightened risk creates a greater duty of care in a medical malpractice case. Second, the verdict form was flawed in a way that prejudiced the hospital. Third, the trial court erred when it permitted the plaintiffs to refer to the hospital’s net operating revenue.

 

The Supreme Court of South Carolina reversed and remanded for a new trial. First, the trial court improperly instructed the jury that that heightened risk creates a greater duty of care in a medical malpractice case. The court held that the duty of care under South Carolina law is that of an average, competent practitioner acting in the same or similar circumstances. There is no heightened duty in medical malpractice because every medical decision involves some degree of danger. The erroneous instruction was prejudicial because the defendants had introduced evidence to demonstrate that they met the normal standard of care, not any heightened standard. Additionally, if the jurors thought the hospital had a heightened duty then that would necessarily alter their perception of the egregiousness of the hospital’s breach which directly relates to punitive damages.

 

Second, the verdict form was flawed in a way that prejudiced the hospital. The form was structured in such a way that the jury could not find against some or all of the nurses while also finding in favor of the hospital. Its structure also implied the hospital was more culpable than the individual nurses even though the plaintiffs’ theory of the case was that the hospital was vicariously liable for the actions of its nurses.

 

Third, the trial court erred when it permitted the plaintiffs to refer to the hospital’s net operating revenue. The South Carolina Supreme Court based its conclusion on the fact that the plaintiff’s counsel presented the net operating revenue during closing arguments without supporting evidence. But, perhaps more importantly, net operating revenue should not be disclosed to the jury. In considering punitive damages a jury may consider only a defendant’s net worth. Net operating revenue is not the same as net worth.

 

See: Sulton v. HealthSouth Corp., 2012 WL 5870807 (S.C., November 21, 2012) (not designated for publication).

 

 

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