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Phelps v. West

Supreme Court of Delaware

August 16, 2018

KATHLEEN L. PHELPS, Individually, and as Administratrix of the Estate of ANTHONY O. PHELPS, MARK S. PHELPS, MATTHEW A. PHELPS and MEGHAN PHELPS BUEHLER Plaintiff Below, Appellants,

          Submitted: August 15, 2018

          Court Below - Superior Court of the State of Delaware C.A. No. N15C-12-136

          Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.



         This 16th day of August 2018, upon consideration of the briefs and record on appeal, it appears to the Court that:

         (1) Kathleen Phelps and her children (the "Plaintiffs") sued Dr. Joseph T. West, Cardiology Consultants, P.A., and Christiana Care Health System, Inc. ("Defendants") for medical negligence during Dr. West's treatment of Anthony Phelps, who was Kathleen's husband and the children's father. Plaintiffs allege that, after Dr. West performed a catheterization on Mr. Phelps on August 22, 2014, Dr. West failed to recommend that Mr. Phelps remain hospitalized to undergo immediate surgery-a decision that they contend led to Mr. Phelps's death. They seek damages.

         (2) On November 14, 2017, following a multi-day trial in the Superior Court that began on November 6, 2017, the jury found Defendants not liable. The jury awarded no damages. Plaintiffs appeal that verdict and an earlier, November 9, 2017 bench ruling issued during trial that overruled Plaintiffs' objection to the testimony of one of Defendants' experts. Plaintiffs allege that this testimony was not fairly disclosed in conformance with Superior Court Civil Rules 16(e) and 26(e) ahead of trial and violated their right to a fair trial.

         (3) More specifically, Plaintiffs assert two arguments on appeal.

         (4) First, they allege that the Superior Court abused its discretion in declining to preclude the disputed expert testimony.

         (5) Second, they allege that the Superior Court's failure to preclude this testimony "rendered the expert witness disclosure requirements of Superior Court Civil Rules 16(e) and 26(e) meaningless."[1]

(6) Rule 16(e) provides:
Pretrial Orders. After any conference held pursuant to this Rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.[2]

         (7) Rule 26(e) provides:

(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired except as follows:
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.[3]

         (8) For the reasons set forth below, we reject Plaintiffs' arguments and AFFIRM the Superior Court's November 9, 2017 bench ruling and the subsequent jury verdict in Defendants' favor.

         (9) This case arises out of a tragic course of events. Following the referral of Mr. Phelps' regular cardiologist, defendant Dr. West performed a catheterization on Mr. Phelps on August 22, 2014. Dr. West discovered that three of Mr. Phelps' coronary arteries were blocked, including 95% of the right coronary artery. Dr. West diagnosed Mr. Phelps with multi-level coronary artery disease and determined that he needed to undergo coronary artery bypass graft (CABG) surgery.[4] Dr. West then advised Mr. Phelps of at least some of the various risks and benefits associated with discharge, as well as the alternatives to leaving the hospital.[5] Dr. West then referred Mr. Phelps to a cardiac surgeon and discharged him from the hospital.[6] Following Mr. Phelps' release, Dr. West was no longer involved in Mr. Phelps' care or treatment.

         (10) On August 29, 2014, Mr. Phelps met with the surgeon, Dr. Paul Davis, who agreed with Dr. West that Mr. Phelps should undergo CABG surgery. They scheduled the procedure for September 11, 2014.[7]

         (11) However, days before the scheduled surgery, Mr. Phelps contracted bronchitis. He alerted Dr. Davis's office on September 8, 2014, and they rescheduled the surgery for September 25, 2014. On September 18, 2014, they again had to reschedule the surgery-this time because of the operating room schedule. The surgery was pushed back to October 1.

         (12) But, on September 19, 2014, before the surgery could be performed, Mr. Phelps developed an acute myocardial infarction (MI) and went into cardiac arrest.[8] He died the following day, September 20, 2014.[9]

         (13) Plaintiffs filed this suit on December 15, 2015, and alleged, among other things, that Dr. West was negligent in discharging Mr. Phelps prior to surgery and failing to inform him of the risks of leaving the hospital.

         (14) Consistent with these allegations, Plaintiffs disclosed before trial that their only expert, Dr. Randall Zusman, would assert that Dr. West violated the applicable standards of care in two ways: (1) failing to recommend that Mr. Phelps be admitted to the hospital for surgery immediately following the cardiac catheterization, and (2) "failing to inform Anthony Phelps of the reasons to remain in the hospital and the risks of leaving the hospital."[10]

         (15) The second theory, the "informed consent" theory, is relevant here, given that Plaintiffs argue on appeal that the trial court abused its discretion in permitting testimony on this theory because Defendants' expert disclosures allegedly failed to disclose their expert's plan to testify on this issue.

         (16) Regarding Plaintiffs' "informed consent" theory, Plaintiffs' expert disclosure stated that its expert would testify that "Dr. West should not have informed Anthony Phelps that he would not have received any treatment if he remained in the hospital over the weekend. Providing such misinformation would have encouraged Mr. Phelps not to remain in the hospital."[11]

         (17) Plaintiffs' expert disclosure listed several omissions that allegedly undermined Dr. West's compliance with the informed-consent standard of care. It asserts that Dr. West should have told Mr. Phelps the following information:

a. If [Mr. Phelps] remained in the hospital, he would have been treated as a priority patient. He could have been evaluated over the weekend and surgery would have been performed before leaving the hospital.
b. If he left the hospital before surgery, he was at imminent risk of death.
c. If he left the hospital, surgery could be delayed due to unforeseen factors, such as the development of other medical problems, the unavailability of a surgeon, etc.
d. If he left the hospital, his activity level could not be monitored.
e. If he left the hospital and suffered a M.I., immediate treatment options would not be available to him.[12]

         (18) In turn, in addition to Dr. West, Defendants identified two experts in their disclosure documents, Dr. Michael Fifer and Dr. Peter Smith.[13] Defendants' disclosures noted that Dr. Fifer, the Director of the Cardiac Cath Lab and Professor at Harvard Medical School, "may address and/or rebut any testimony provided by Plaintiffs' experts."[14] In addition, beginning on page 2, Defendants provided the following information concerning Dr. Fifer's anticipated testimony:

It is expected that Dr. Fifer will testify with regard to the issues of standard of care and causation. It is Dr. Fifer's opinion that Dr. West complied with the applicable standards of care at all times hereto. It is further his opinion that no alleged negligent act by Dr. West caused or contributed to Plaintiffs' claimed injuries.
Specifically, it is Dr. Fifer's opinion that Dr. West acted appropriately in discharging Mr. Phelps on August 22, 2014. In particular, Dr. Fifer believes that it was reasonable for Dr. West to discharge Mr. Phelps after his diagnostic catheterization based on the findings during the catheterization and Mr. Phelps' clinical scenario. At all times during Dr. West's treatment of Mr. Phelps on August 22, 2014, Mr. Phelps had stable angina and did not report any complaints of ongoing chest pain at rest, ongoing shortness of breath at rest, or other potential symptoms indicating unstable angina. In other words, Mr. Phelps presented with stable angina. The catheterization films likewise do not show anything that would indicate that Mr. Phelps needed emergent surgery. Moreover, the discovery to date indicates that Dr. West had no reason to suspect that Mr. Phelps had unstable angina at any prior time. Dr. West also ordered a surgical consult, and Mr. Phelps was seen on August 22, 2014 by a cardiac surgery physician assistant before Mr. Phelps was discharged. Because Mr. Phelps had stable angina, Dr. Fifer believes that it was reasonable to discharge a patient like Mr. Phelps to his primary cardiologist and recommend that he undergo cardiac surgery, rather than order emergent surgery or keep Mr. Phelps in the hospital.
Dr. Fifer will further testify that, based on the discovery to date, Mr. Phelps understood the need to recognize any chest pain symptoms and immediately report to the emergency room if those occurred. Moreover, the discovery to date indicates that Mr. Phelps did not have any periods of unstable angina or complaints of chest pain at rest that were reported to his treating physicians, including Dr. West, at any point between August 22, 2014 and September 19, 2014.
Dr. Fifer will also opine that it is not the standard of care to keep patients in the hospital when they have stable angina. Keeping a patient in the hospital for potential elective surgery days later would not be appropriate to the patient, would generate needless costs, and could risk hospital acquired infections to the patient. Moreover, it would not be inappropriate to tell a patient like Mr. Phelps that he would not likely have elective cardiac surgery over the weekend.
Dr. Fifer will opine that, if Mr. Phelps developed chest pain on September 19, 2014 approximately 3-4 hours before he collapsed, and if Mr. Phelps had presented to the Emergency Room when those symptoms began, Mr. Phelps more likely than not would have been taken to the catheterization lab. In the catheterization lab, it is more likely than not that Mr. Phelps' right coronary artery would have been reopened with stenting procedures. Had that occurred, Mr. Phelps would have survived his heart attack.[15]

         (19) At his subsequent deposition, Dr. Fifer further testified that the disclosures accurately reflected his views, but that they featured only "some" of his opinions.[16] After prompting by Plaintiffs' counsel, Dr. Fifer explained how he would approach discussing treatment options with a patient in Mr. Phelps' situation prior to a possible discharge:

Well, you know, if it's Thursday afternoon and the surgeon says I'll do this tomorrow morning, I would give the patient that option. I would say you can either have it done tomorrow if you're ready psychologically or you can go home and come back. But there's nothing about Mr. Phelps' clinical presentation or the catheterization that would make me instruct him to stay in the hospital.[17]

         (20) Plaintiffs' attorney followed up by asking Dr. Fifer why he would have given the patient the "option of staying in the hospital and having the surgery performed the next day," and Dr. Fifer responded "[f]or his convenience."[18] He stated that he subscribed to "the principle of patient autonomy: If there are options, you give the patient the choice."[19]

         (21) Plaintiffs' counsel also asked Dr. Fifer whether a treating physician should inform the patient that indigestion could be a sign of ischemia, and Dr. Fifer responded:

I don't think it's something that a doctor would be required to inform the patient of. There are many, many things we can tell patients, I can't think of all of them. I don't think that's one of the things that would come to mind.[20]

         (22) Dr. Fifer additionally testified that he does "[n]ot necessarily" tell all patients that he discharges from the hospital following a cardiac catheterization that they should report to the hospital if they experience angina, but he submitted that he might do so "[d]epend[ing] on the patient," as his evaluation "depends on many, many factors," and "too ...

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