Court reduces malpractice verdict because man who lost functional use of both arms didn't prove economic damage

John Shivers sued Susan Schmiege, M.D. and Valley Anesthesia for malpractice after he lost virtually complete use of both arms.  Schmiege had been admitted to St. Mary's Medical Center for bladder removal, and after the surgery his physical conditon deteriorated rapidly.  He had weakness in his arms in the recovery room and the weakness progressed overnight to almost complete paralysis.  Schmiege checked Shivers at 7 p.m. and recorded diminished arm function but took no action.  A nurse claimed she reported further deterioration to Schmiege at 12 midnight, but Schmiege denied she was called.  Another nurse claimed that someone resembling Schmiege was in and examined the patient at 2 a.m., without charting, but Schmiege denied she attended Shivers that night. 

A surgeon was consulted the following morning and rushed Shivers back to surgery to relieve the pressure on his spinal cord, however, the emergent surgery achieved little recovery in Shiver's arm function.  Schmiege lost the functional use of both arms and was dependent on his elderly wife and daughters for the requirements of daily living.  A jury awarded Shivers 1.7 million dollars to compensate for the loss of use he suffered as a result of Schmiege's failure to act more promptly, and Schmiege's insurers appealed on various technicalities.

The reviewing court rejected most of the insurer's appellate arguments, however, two of the judges ordered the reduction of the verdict to eliminate $500,000.00 in future economic loss.  Even though the Court acknowledged that Shivers had no functional use of his arms, these two judges ruled that this was not an adequate basis to award him the value of the attendant care he required; specifically, they deemed it inadequate for Shiver's counsel to ask for minimum wage attendant care without placing in evidence the current dollar value of minimum wage! The third judge on the panel, Judge Deborah Servitto noted that it is well established that jurors are "free to consider their own general knowledge and intelligence" and that it was simply "inequitable" to deny Shivers compensation for damages that were clearly proven.

All three judges did agree in knocking down a number of specious defenses raised by the Defendants on appeal.  The rejected the Defendants' claim that the lower cap on non-economic damages should apply, since that argument was based on the absurd suggestion that Shiver's paralysis was not a "functional loss" because it was not a "complete" paralysis.  The also rejected outright the argument that the statutory term "paraplegia" applied only to loss of use of both legs and could not be applied to the loss of use of both arms.

In other housekeeping rulings, the Court reaffirmed previous decisions, holding that the inflation-adjusted cap to be applied is the cap existing at the time Judgment is entered, not the cap level at the time a complaint is filed or the injury is suffered.  Further, it rejected the Defendants attempt to apportion the cap among past and future damages, rather than applying it first to future damages as previous courts have held.