No Error When Jury Instruction Did Not Allow Apportionment of Liability Among Hospital’s Insurer and Doctors Who Settled in Prior Case

A boy suffered from seizures due to lesions on the right temporal lobe of his brain, and underwent surgery to remove the lesions. The surgeon mistakenly began operating on and removed tissue from the left side of the boy’s brain. The surgeon then completed the surgery on the right side of the boy’s brain.


The boy’s parents sued the hospital where the surgery took place alleging that the hospital's surgical team removed and destroyed critical brain tissue from both sides of the boy's brain and, despite having knowledge of the two surgeries, never disclosed this information to the parents, depriving their son of critical rehabilitation time.


After trial, a jury found in favor of the plaintiffs and awarded damages of $20 million. The trial court reduced the damages to $11 million, an amount consistent with the liability-insurance company’s liability coverage for the hospital.


The Supreme Court of Arkansas affirmed the circuit court on both direct appeal and cross-appeal. On appeal, the liability-insurance company for the hospital argued that the circuit court erred in failing to instruct the jury in a manner that would allow it to apportion liability among it and certain physicians who were sued in a prior case but ultimately settled. The Arkansas Supreme Court affirmed the circuit court because the relevant statute does not require a trial court to submit a jury instruction allowing allocation of liability to a nonparty. The trial court properly instructed the jury not to attribute any fault of the doctors to the hospital and to allocate the fault of the hospital only to the liability-insurance company for the hospital.


The plaintiffs cross-appealed the circuit court's order reducing the jury's verdict from $20 million to $11 million arguing the applicable insurance policies provided more in coverage than the jury's $20 million award. The Supreme Court of Arkansas found that there was one single medical incident, the surgery on the boy's brain that resulted in his damages. The language of the insurance policy clearly stated that the maximum coverage for one medical incident is $11 million. Liability was limited to the extent of coverage in the policy by statute. Therefore, the circuit court did not err in reducing the damages to $11 million.


See: ProAssurance Indem. Co., Inc. v. Metheny, 2012 Ark. 461, 2012 WL 6204231 (Ark., December 13, 2012) (not designated for publication).