The Pennsylvania Supreme Court has once again affirmed that it's the defendant's responsibility to request a breakdown of damages on a verdict sheet—or risk waiving the right to a new trial.

In Shiflett v. Lehigh Valley Health Network, the high court ruled 6-1 to overturn the Superior Court's grant of a new damages trial to defendants Lehigh Valley Health Network and Lehigh Valley Hospital in a lawsuit over knee injuries allegedly suffered when a patient fell from bed while recovering from knee surgery in the hospital's postsurgical unit (PSU).

While the Superior Court had ruled that Leigh Valley was entitled to a new trial because a time-barred claim was allowed to be submitted to the jury and it was unclear as to whether a portion of the damages awarded were based on that claim, the Supreme Court said the hospital waived its challenge to the award when it neglected to request a special interrogatory on the verdict sheet allocating damages between the various claims.

Plaintiffs Betty and Curtis Shiflett filed their initial complaint in the Lehigh County Court of Common Pleas in 2014, asserting claims for negligence and loss of consortium related to Betty Shiflett's fall in the PSU, according to the Supreme Court's Sept. 26 majority opinion. More than a year later, the plaintiffs sought leave to file an amended complaint alleging negligence on the part of a nurse who treated Betty Shiflett in the hospital's transitional skills unit (TSU) three days after the surgery. Despite objections by the defense that the new claim was time-barred, the trial court allowed the Shifletts to amend their complaint.

At trial, the jury awarded the Shifletts $2,391,620—$800,000 for past noneconomic damages, $500,000 for future noneconomic damages, $300,000 for loss of consortium and $791,620 for future medical expenses.

The defense did not request, however, that the verdict sheet require the jury to allocate damages between injuries suffered in the PSU and injuries suffered in the TSU. And that, Justice Christine Donohue wrote for the majority, was a fatal mistake.

"We recognize the concern of the Superior Court and the hospital that without a new trial, there is a possibility that the Shifletts have obtained an award that may include damages awarded on a time-barred theory of liability that should not have been submitted to the jury," Donohue said. "The record demonstrates, however, that the hospital was acutely aware of this possibility throughout the course of the trial, yet failed to request a special interrogatory that could have prevented this eventuality."

Donohue, joined by Justices Max Baer, Debra Todd, Kevin Dougherty, David Wecht and Sallie Updyke Mundy, said the case required "a straightforward application of the general verdict rule," which states that "when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the verdict will not be reversed on appeal."

The rule was first adopted by the Supreme Court in the 2009 case Halper v. Jewish Family & Children's Services, a case that Donohue said bore striking similarities to Shiflett.

"In both cases, the verdict sheet lacked certainty as to the nature of the jury's verdict," Donohue said. "In Halper, the verdict sheet did not disclose whether the jury awarded damages on the theory of liability improperly submitted to the jury. In the present case, the verdict form does not disclose the amount of damages, if any, awarded on the improperly submitted theory of liability. Importantly, in both cases a special interrogatory would have provided the necessary clarification, and because the defendant failed to request that a clarifying special interrogatory be added to the verdict sheet that would have obviated the need for a new trial, the verdict will stand."

The Superior Court had granted the hospital defendants a new damages trial because "it is impossible to determine from the verdict sheet (which did not break down damages by claim) whether all of the damages awarded by the jury were caused by Ms. Shiflett's fall in the PSU, or whether some portion of those damages was the result of the negligence found to have taken place in the TSU."

But the majority said the Superior Court's grant of a new trial was based on the incorrect "assumption that the Shifletts suffered separate and distinct injuries from the hospital's corporate negligence in the PSU and its vicarious liability in the TSU."

"The evidence introduced at trial, however, is entirely consistent with a finding that the Shifletts suffered a single injury (an avulsion fracture resulting in permanent disability) caused by the hospital's corporate negligence in the PSU," Donohue said, adding, "Accordingly, the evidence at trial supports the jury decision to award the Shifletts' $2,391,620 in damages for the hospital's corporate negligence in the PSU. We cannot and will not presume or conjecture upon what basis the jury rendered its verdict and made the award."

Chief Justice Thomas Saylor issued a dissenting opinion, arguing that, "although the majority's approach plainly promotes judicial efficiency, I have reservations about a per se rule faulting litigants for failing to make sometimes intricate predictive judgments about potential verdicts in multi-claim cases and to incorporate these into their proposals for special verdict forms."

Donohue responded in a footnote that "the dissent … apparently fails to recognize that trying a medical malpractice case (or, frankly, any type of case) requires counsel to make numerous 'intricate predictive judgments,' and that those judgments have consequences for the outcome of the case."

The Supreme Court remanded the case to the Superior Court to address several other issues the defense raised that were not reached in its initial opinion.

Counsel for the Shifletts, James Goslee of Cohen, Placitella & Roth in Philadelphia, said in an emailed statement, "We are pleased with the ruling. In this case the parties agreed there was only one compensable injury, so this was not a typical waiver case. But the court's opinion clarifying application of the general verdict rule will certainly be helpful for litigants. The opinion reiterates that if you want juries to make specialized findings as to damages, you need to make that request on the verdict sheet."

Counsel for the hospital defendants, Kimberly Krupka of Gross McGinley in Allentown, said it was the firm's policy not to comment on pending litigation.