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Delaware Supreme Court holds that prejudgment interest pursuant to 6 Del. C. Section 2301(d) is mandated when the total amount of the verdict, against joint tortfeasors is greater than settlement offers extended individually to each tortfeasor.

On August 1, 2008 the Delaware Supreme Court issued a revised opinion of its July 1, 2008 decision in Christiana Care Health Services, Inc. and Mary Ann Connor, D.O., v. Linda Crist,et. al.

In its opinion the Delaware Supreme Court upheld a $2 million dollar malpractice verdict against Christiana Care Health Services, Inc., and Dr. Mary Ann Connor, D.O. for the death of 74 year old man who was admitted to the hospital, fell and subsequently died of the consequences of a subdural hematoma suffered in the fall. In addition the Delaware Supreme Court ordered the case remanded for imposition of prejudgment interest in the amount of at least $469,477.44 based upon the provisions of 6 Del. C. Section 2301(d).

In the opinion of the Delaware Supreme Court, Justice Ridgely stated:

“Matthew Harris was 74 years old when he fell and fractured his hip on February 1, 2004. He was admitted to CCHS’s hospital and on February 5, asked for medication to help him sleep…The Ambien was administered at approximately 12:35 a.m. At approximately 4:30 a.m., Harris got out of bed and fell.”

“Dr. Connor evaluated Harris at 9:25 a.m., and gave orders for his care including a CT (CAT) scan to rule out any cranial injury, including a subdural hematoma. Dr. Connor ordered the CT Scan “routine” at that time. This CT scan was placed by the unit clerk as “CT head, with or without contrast” at 10:09. Around this time, Harris’s family came in and explained to Nurse Godek that Harris had had a similar problem in a previous hospital visit, and no CT scan was given. Nurse Godek took blood and notified Dr. Connor of the results between 10:40 and 10:50 a.m. Dr. Connor testified that because Harris’s physical condition was “dramatically different,” she ordered a CAT scan stat [immediately]. There is no written documentation that Dr. Connor gave the nurse this order, and the nurse testified that she did not remember hearing it. A CT scan was eventually given to Harris at 2:45 p.m. The scan revealed that he had a subdural hematoma and needed emergency surgery to remove the clot. The surgery was performed but Harris remained comatose after the surgery and died ten days later.”

More than 30 days “prior to trial Plaintiffs made separate written offers to settle all claims against each defendant for $1.25 million.” Each offer was rejected. “The jury awarded damages totaling $2 million, apportioning fault 40 percent for Dr. Connor and 60 percent for CCHS.”

The Jury found that Dr. Connor and CCHS had violated the “standard of care” by not ordering an immediate CT scan or if she did order the “immediate” CT scan she should have done so in writing as required by hospital policy and the standard of care.

Plaintiff’s cross-appealed the trial judge’s ruling in which he denied the award of pre-judgment interest pursuant to 6 Del. C. Section 2301(d) stating, “the apportionment of the jury verdict demonstrated that each individual defendant’s liability did not exceed the settlement demand.”

The Delaware Supreme Court held,

“The $2 million judgment in favor of Plaintiffs was a common liability of both Dr. Connor and CCHS. Thus, Plaintiffs may collect upon the full amount from either tortfeasor. The written settlement demand for each tortfeasor was for less than $2 million. Although a jury apportionment of fault affects contribution among joint tortfeasors, it does not change the common liability of each tortfeasor to Plaintiffs for the entire amount of the judgment. The plain language of Section 2301(d) requires that prejudgment interest be awarded when the settlement demand was less than the amount of damages upon which the judgment was entered, regardless of how the jury apportioned fault among the joint tortfeasors for purposes of contribution.”

On appeal Defendant CCHS asserted that error had occurred for two reasons:

1. The Judge allowed impermissible leading questions of the expert witnesses in the case, and
2. Dr. Connor’s lawyer’s closing remarks improperly “vouched for the credibility of witnesses”

The Supreme Court held that “A trial judge has broad discretion in allowing leading questions of a witness including during the direct examination. D.R.E. [Delaware Rule of Evidence] 611(c) provides the boundaries of this discretion, ‘Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.’ The rule proscribing leading questions on direct examination is grounded in the principle that ‘the most important peculiarity of the interrogational system is that it may be misused by suggestive questions to supply a false memory for the witness__that is, to suggest desired answers not in truth based upon a real recollection.’ In this instance the “even though the trial judge did not apply D.R.E. 611(c) for each witness, CCHS has not demonstrated that the questions suggested false memories for any witness…Accordingly, we conclude that the trial judge’s error was harmless.

As to CCHS’s second argument, of impermissible vouching for a witness, The Court noted that “No objection was made contemporaneously to these statements,” and found that the trial judge did not abuse in discretion in allowing the argument.

On appeal Dr. Connor argued that the trial judge abused his discretion when he allowed, over objection, one of Plaintiff’s medical causation experts to offer the opinion that Mr. Harris’s outcome would have been different if the CT scan had been performed and interpreted by 11:30 a.m. The Court found that the trial judge did not abuse his discretion in allowing this testimony

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