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Shapira v. Christiana Care Health Court

Supreme Court of Delaware

August 7, 2014

NADIV SHAPIRA, M.D., and NADIV SHAPIRA, M.D., LLC, Defendants Below, Cross Appellants,
CHRISTIANA CARE HEALTH Court Below: SERVICES, INC., Defendant Below, Appellant/Cross Appellee, and JOHN HOUGHTON and EVELYN HOUGHTON, his wife, Plaintiffs Below, Cross Appellees

Submitted June 4, 2014.

Motion for Reargument filed August 13, 2014.

Denied August 14, 2014.

Case Closed August 14, 2014.

Court Below: Superior Court of the State of Delaware, in and for New Castle County. C.A. No. N11C-06-092 MJB.

John A. Elzufon, Esquire (argued) and Gary W. Alderson, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware for Cross Appellants, Nadiv Shapira, M.D. and Nadiv Shapira, M.D., LLC.

Dennis D. Ferri, Esquire (argued) and Allyson Britton DiRocco, Esquire, Morris, James LLP, Wilmington, Delaware, for Appellant, Cross Appellee, Christiana Care Health Services, Inc.

Randall E. Robbins, Esquire (argued) and Carolyn S. Hake, Esquire, Ashby & Geddes, Wilmington, Delaware, for Appellees, Cross-Appellees, John Houghton and Evelyn Houghton.

Before STRINE, Chief Justice, HOLLAND, BERGER, and RIDGELY, Justices and LASTER, Vice Chancellor,[*] constituting the Court en Banc.


Page 218

BERGER, Justice:

This is an appeal from a jury verdict in favor of the patient in a medical malpractice action. The patient alleged that his physician negligently performed a surgical

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procedure and breached his duty to obtain informed consent. The patient also sued the supervising health services corporation based on vicarious liability and independent negligence. The jury found both the physician and the corporation negligent and apportioned liability between them. On appeal, the physician and corporation assert that the trial court erred in several evidentiary rulings, incorrectly instructed the jury on proximate cause, and wrongly awarded pre- and post-judgment interest. In cross appeals, the physician and corporation seek review of the trial court's decision to submit a supplemental question to the jury, as well as its failure to alter the damages award based on the jury's response to that supplemental question.

We affirm the judgment in favor of the patient. The trial court should not have requested supplemental information from the jury after the verdict. Although the trial court decided not to modify the verdict, the jury's response to the supplemental question arguably could affect other proceedings between the physician and corporation. As a result, the judgment below is AFFIRMED and the case is REMANDED with instructions to the Superior Court to vacate the supplemental verdict.


In December 2009, John Houghton[1] fell from a ladder and suffered multiple non-displaced rib fractures, among other injuries. He was admitted to Christiana Hospital,[2] where he experienced severe chest pain despite receiving oral pain medication. Because of his persistent chest pain, Houghton's physicians requested a consult with Dr. Nadiv Shapira, a thoracic surgeon affiliated with Christiana Hospital who performs the " On-Q procedure." The procedure, intended to treat pain caused by rib fractures, involves the insertion of a catheter, known as the " On-Q," under the patient's skin and over the ribs using a metal tunneling device. The catheter is approximately five inches long and contains several holes. When liquid analgesic is infused through the catheter, it soaks the surrounding tissue. The goal is to place the catheter in such a way that it can be used to continuously soak the nerves around the ribs with analgesic in order to relieve the pain associated with the rib fracture. The On-Q procedure has not been approved by the FDA and is thus an " off-label" use of the On-Q catheter.

Shapira evaluated Houghton and determined that he was a candidate for the On-Q procedure because of his high level of chest pain, his inability to breathe deeply, and his poor response to the oral pain medication. Shapira discussed the On-Q procedure with Houghton. Although he did not have an " exact recollection" of the conversation at trial, Shapira testified that he would always talk to patients about the " aims, risks and alternatives" of the On-Q procedure.[3] Shapira would explain that the purpose of the procedure was to provide pain relief in order to prevent " further deterioration" and to ameliorate the risks associated with continued reliance on a breathing tube and respirator.[4] Shapira would also mention the risks of bleeding,

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infection, injury to adjacent organs or tissues, and side effects of the medication being ...

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