$12.3 Million Verdict After a Paralyzed Patient's Bedsore Went From Stage Two to Stage Four in 11 Days at a Rehab Hospital, Later Reversed on Appeal

Vernon Sulton was not the target of the armed robbery that changed his life. He was a bystander, and the gunshot wounds he took that day left him paraplegic. After initial treatment at Richland Memorial Hospital in Columbia, he was transferred to HealthSouth Rehabilitation Hospital, a facility whose purpose is to help newly disabled patients learn to live with their injuries.

He arrived with a stage two pressure ulcer on his sacrum, the bony area at the base of the spine. Preventing a pressure ulcer from getting worse is basic nursing care: regular turning, pressure-relieving surfaces, clean dry skin, and monitoring of the wound. A stage two ulcer is a shallow open sore. A stage four ulcer has eaten through the skin and fat down to muscle, tendon, or bone.

In the 11 days Sulton spent at HealthSouth, his ulcer went from stage two to stage four. He needed a colostomy to divert stool away from the wound and surgery that included a skin graft. The ulcer eventually healed fully.

Sulton and his wife, Willie Mae Scott, sued HealthSouth Corporation and six of its nurses, Kathy Hoover, Lisa Page, Sharon Miller, Kim Harris, Betty Casteal, and Norine Corbin, in Richland County, alleging that negligent nursing care had let the wound deteriorate. Scott brought her own claim for loss of consortium. Sulton died of unrelated causes before the case reached trial, so his claim continued as a survival action on behalf of his estate.

The trial, before Circuit Judge L. Casey Manning, was bifurcated. In the liability phase the jury found against HealthSouth and all six nurses on the survival claim, awarding $306,693.25 in economic damages and nothing for non-economic damages. On the consortium claim, it found HealthSouth alone liable to Scott for $4 million in non-economic damages. The jury also found that HealthSouth had acted in a willful, wanton, or reckless manner, which opened a punitive damages phase. In that phase the trial court excluded HealthSouth's 10-K annual report but allowed plaintiffs' counsel to tell the jury that the company's 2009 net operating revenue was $1.911 billion. The jury returned $8 million in punitive damages. The total came to $12,306,693.25. HealthSouth moved for judgment notwithstanding the verdict, a new trial, and remittitur, all of which Judge Manning denied.

Chad Alan McGowan of McGowan Hood & Felder, Rock Hill, and William Jones Andrews, Jr. of the firm's Columbia office, together with John S. Nichols of Bluestein Nichols Thompson & Delgado and Fernando Xavier Starkes of Starkes Law Firm, represented Sulton and Scott, according to the Supreme Court's opinion. Nelson Mullins Riley & Scarborough and Turner Padget Graham & Laney defended.

On direct appeal, the South Carolina Supreme Court heard argument on October 17, 2012 and reversed on November 21, 2012 in an opinion by Justice Pleicones, with the full court concurring. The trial judge had told the jury that where there is a great degree of danger there is a greater duty of care, and that a health care provider's duty rises in proportion to the risk to the patient. The Court held that South Carolina's malpractice standard is simply that of an average, competent practitioner in the same circumstances, that its 2005 decision in Pittman v. Stevens had already criticized this very charge as especially inappropriate in a malpractice case, and that the error went to the heart of the case because HealthSouth had put on evidence that it did exercise reasonable care. The Court added that a jury which believed in a heightened duty would likely have seen the breach as more egregious, which the recklessness finding and large punitive award seemed to bear out. It also found the verdict form prejudicial, since jurors had no way to find against individual nurses without also finding against HealthSouth, and held that citing net operating revenue rather than net worth was improper under Branham v. Ford Motor Co. The Court reversed and remanded for a new trial on all issues as to all defendants.

Nothing about a retrial or settlement after the remand appears in the public record we could locate. The firm still lists the $12.3 million figure among its results.