Did Failure to Properly Prepare Jury Form Prejudice Pt.?

ATTORNEYS SHOULD USE UTMOST CAUTION IN PREPARING JURY FINDING FORMS. In this federal case, a jury was asked to assess the total amount of damages sustained by a hospital patient. Had the jury been asked to apportion damages between the hospital and the physicians involved (who had settled the

JOSE ALICEA PONCE WAS ADMITTED TO ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL ON SEPTEMBER 3, 1993. The date of admission was approximately one day before her due date. Ms. Sanchez was examined by Dr. Carlos Roure, who determined that her pregnancy was causing her to suffer hypertension. Since she was so close to her due date, attending physicians decided to induce labor the following day. Labor was induced on the morning on September 4, 1993. Dr. Hector Rosario was the attending physician. Also present at various times were several nurses, including Nurse Elsie Oliveras. After several hours of contractions, the baby's head emerged, but then retracted -- an indication (called "turtle sign") that the baby's shoulder was stuck. In response, Dr. Rosario instructed Nurse Oliveras to push the patient's legs toward her head, putting her into "McRoberts position" and then to apply suprapubic pressure, so as to rotate and free the baby's shoulder. Nurse Oliveras seemed confused over how to execute these maneuvers. After she attempted to put the patient in the "McRoberts position" Dr. Rosario told her in an "urgent tone" "that she was performing the maneuver incorrectly and directed her to do it the right way. Then, after being told to apply suprapubic pressure, Nurse Oliveras repeatedly asked "how, how do I do this?" Dr. Rosairo left the room and returned with another physician who applied suprapubic pressure. Soon after, baby Natalie was delivered. It later became apparent that as a result of the traumatic delivery, Natalie had suffered an injury to her "brachial plexus" Due to the injury, Natalie is unable to lift her left arm past 30 degrees. Natalie's parents brought suit against the hospital, Dr. Rosario, and other physicians. The plaintiffs settled with physician defendants for $400,000. The physicians remained parties in the case, however, as the subjects of a cross-claim by the hospital. After trial, the jury found by way of a special verdict form both the hospital and the physicians negligent, attributing half of the liability to the hospital and half to the physicians. The jury assessed the total damages at $400,000 and the hospital's resulting liability to be $200,000. The trial judge granted the motion to set aside the verdict. The plaintiffs asked the court to reverse the trial court's decision to vacate the verdict against the hospital and to remand the case for a partial new trial limited to damages. An appeal was taken.

THE UNITED STATES COURT OF APPEALS, FIRST CIRCUIT, AFFIRMED THE JUDGMENT OF THE LOWER COURT. The court held, inter alia, that even if the plaintiffs were correct that there was sufficient evidence to find the hospital negligent but insufficient evidence to find the physicians negligent -- even if the hospital were found to be 100 percent liable for the plaintiffs damages -- plaintiffs' victory would be a hollow one; the result of the award against the hospital would be $400,000; yet the plaintiffs have already recovered this amount from the physicians. In order to prevail, the plaintiffs had to show that the jury was erroneously led to underestimate damages, so as to reopen the possibility of winning an award on remand exceeding their settlement. The jury form asked the jury to apportion liability between the defendants. However, the form simply asked the jury to determine "what amount of damages" plaintiffs had suffered, without submitting the question of what amount of the damages were attributable to the hospital.

THE PLAINTIFFS SHOULD HAVE REQUESTED A JURY FORM REQUIRING THE APPORTIONMENT OF DAMAGES. If the jury was directed to determine the total amount of damages to which the plaintiffs were entitled and further directed to apportion the amount for which the hospital and the defendant physicians were liable the plaintiffs' amages could have reached $800,000, rather than $400,000. Although, hindsight is 20-20, counsel for the plaintiffs should have requested that the jury form direct that the jury apportion both liability and damages between the respective defendants. Unfortunately, the form simply asked the jury to determine "what amount of damages" the plaintiffs had suffered, without appportioning the total amount attributable to the hospital. Ponce v. Ashford Presbyterian Community Hospital, 2001 WL 32737 F.3d -- PR

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.