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Phelps v. West

Superior Court of Delaware

October 17, 2017

Kathleen L. Phelps, et al.
Dr. Joseph T. West, et al.

          Submitted: October 4, 2017

          Kenneth M. Roseman, Esq. Kenneth Roseman, P.A.

          Richard Galperin, Esquire Joshua Meyeroff, Esquire Morris James LLP

         Dear Counsel:

         This medical negligence suit has mutated into a dispute between the parties regarding alleged spoliation of evidence. After plaintiffs uncovered what they believed was perjury and manipulation of the discovery record, they were granted extensive discovery at defendants' expense and were permitted to amend their complaint to add a claim of fraud and misrepresentation. The plaintiffs contend an employee of the defendant hospital created a chart note reflecting discussions with a patient and, after the patient's death, destroyed or hid that chart note and created a new, sanitized chart note that was produced in discovery. The chart note, or lack thereof, forms the basis of the fraud and misrepresentation claim. It is undisputed that the employee created a chart note after the patient's death; the only dispute is whether an earlier chart note existed.

         The plaintiffs also argue they are entitled to an adverse inference instruction relating to the chart note and two other documents: (1) a portion of a fax sent to the defendant physician, and (2) a scheduling letter created by staff who scheduled the patient for surgery. The question now before the Court is whether the defendants are entitled to summary judgment on the plaintiffs' fraud and misrepresentation claim when the record contains no evidence that a chart note was created at the time the patient interacted with the employee or that the plaintiffs relied on or were damaged by the later-created chart note. The Court also must decide whether the plaintiffs are entitled to an adverse inference instruction where there is no evidence supporting a factual finding that the documents at issue were destroyed intentionally and in bad faith. I conclude the defendants are entitled to summary judgment on the fraud and misrepresentation claim, and the plaintiffs are not entitled to an adverse inference instruction. My reasoning follows.


         The following facts are not disputed or, where disputed, are resolved in favor of the plaintiffs. On August 15, 2014, Dr. David Grubbs referred his patient, Anthony Phelps, for a cardiac catheterization based on Grubbs's diagnosis of angina. On his billing sheet associated with the appointment, Grubbs indicated a diagnosis of "angina, unstable." Dr. Joseph West, a defendant in this action, performed the catheterization on August 22, 2014. West's report noted Phelps was a "67 year old man with [unstable angina] and markedly positive stress test."[1]West discharged Phelps from the hospital that day, but recommended he undergo bypass surgery. West referred Phelps to Dr. Paul Davis, a cardiac surgeon, to discuss that surgery. West did not have any involvement with Phelps' care after August 22, 2014.

         West and Davis are not in practice together, but both are employed by defendant Christiana Care Health System, Inc. ("CCHS" and collectively with West, the "Defendants"). Davis met with Phelps on August 29, 2014 and scheduled him for bypass surgery on September 11, 2014.[2] On September 8th, however, Phelps reported to Davis's office that he was being treated for bronchitis by his primary care physician.[3] Phelps's surgery therefore was rescheduled to September 25, 2014. The surgery later was rescheduled a second time, to October 1, 2014, due to operating room and physician availability and prioritization of other, seemingly more urgent, surgeries.[4]

         These changes to the schedule, and notes regarding the reasons for the changes, were reflected in handwritten notes on a form referred to internally in Davis's office as a "face sheet." That face sheet was preserved and produced in discovery. There is no dispute in this case that the handwriting on the face sheet belonged to Christine Brady, a member of Davis's staff, or that the notations were made contemporaneously with Brady's conversations with Phelps.

         It was Dr. Davis's staffs practice to issue a scheduling letter to a patient when surgery was scheduled and to retain a copy of the letter in the patient's file. A scheduling letter was issued to Phelps, but when Phelps's surgery was rescheduled, Brady removed the initial scheduling letter from Phelps's file, placed it in a bin designated for shredding, and placed the new scheduling letter in the file.[5] Brady testified scheduling letters often, but not always, are discarded when a procedure is rescheduled.[6]

         On September 19, 2014, Phelps developed an acute myocardial infarction and went into cardiac arrest. Phelps died on September 20, 2014. In May 2015, Plaintiffs' counsel requested Phelps's records from CCHS. In response, Brady contacted CCHS's legal risk management department. She also prepared a document labeled "chart note" that reflected, or purported to reflect, Brady's interactions with Phelps (the "2015 Chart Note").[7] The substance of the events on the 2015 Chart Note is identical to the events Brady noted on the face sheet.[8] Brady, however, mistakenly wrote the year 2015, rather than 2014, for each of the events.[9]

         The plaintiffs, who are Phelps's estate and his spouse and children (collectively, the "Plaintiffs"), filed this negligence action against West and CCHS on December 15, 2015. Plaintiffs' theory, fairly summarized, is that West negligently discharged Phelps from the hospital on August 22, 2014, without adequately informing him of the risks or recommending necessary follow-up care and restrictions. Plaintiffs believe West should have recommended immediate bypass surgery and should not have discharged Phelps, given Grubbs's unstable angina diagnosis and the symptoms, including chest pains, that Plaintiffs contend Phelps was experiencing at the time West evaluated him.

         Plaintiffs deposed Brady regarding, among other things, the 2015 Chart Note. During her first deposition, Plaintiffs' counsel showed Brady the 2015 Chart Note and asked her, several times, in what year she wrote the entries on that document. Brady repeatedly testified that she wrote the 2015 Chart Note in 2014.[10] After the deposition, however, Brady changed her testimony and for the first time acknowledged that she created the 2015 Chart Note in 2015, well after Phelps's death.[11] In the wake of Brady's deposition and her acknowledgment that she manipulated the record, the Court permitted Plaintiffs to engage in wide-ranging discovery, at Defendants' expense, including (1) depositions of Brady, West, Davis, and CCHS's risk manager, Carol Sirkowski, (2) access to Defendants' counsel's files and CCHS's risk management files, [12] and (3) access to other patients' files to evaluate Brady's practice of creating chart notes.[13] Plaintiffs also were permitted to amend their complaint to add a claim for fraud and misrepresentation and were awarded attorneys' fees for the motion to compel, the motion for sanctions, and Plaintiffs' counsel's time relating to the additional discovery.

         In addition to their fraud claims regarding the 2015 Chart Note, Plaintiffs also seek an adverse inference jury instruction relating to the chart note, scheduling letter, and two pages purportedly missing from West's document production. In support of their argument that West was aware, or should have been aware, of Phelps's symptoms and the need for immediate bypass surgery, Plaintiffs point to Grubbs's records and his diagnosis of unstable angina. Although the facts are disputed, for purposes of this motion it is assumed that Grubbs's office faxed West all Grubbs's records for Phelps, consisting of 10 pages and a fax cover sheet indicating the number of pages transmitted. In discovery in this case, however, West's office only produced nine pages of documents that West received from Grubbs' office; missing were the fax cover sheet and the billing sheet indicating "Angina, Unstable."


         A motion for summary judgment will be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[14]When considering a motion for summary judgment, the evidence and the inferences drawn from the evidence are to be viewed in the light most favorable to the non-moving party.[15] The Court will accept "as established all undisputed factual assertions . . . and accept the non-movant's version of any disputed facts. From those accepted facts[, ] the [C]ourt will draw all rational inferences which favor the non-moving party."[16] The non-moving party, however, must do more than suggest some "metaphysical doubt as to material facts." Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). Summary judgment should be granted if the trier of fact only may draw one reasonable inference from the facts.[17]

         A. The plaintiffs have not pointed to any evidence that a chart note was created in 2014, that they justifiably relied on the 2015 Chart Note, or that they ...

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