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,
DR. JOSEPH T. WEST, CARDIOLOGY CONSULTANTS, P.A., and CHRISTIANA CARE HEALTH SYSTEM, INC., Defendants Below, Appellees.
Submitted: August 15, 2018
Below - Superior Court of the State of Delaware C.A. No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
L. VALIHURA, JUSTICE
16th day of August 2018, upon consideration of the briefs and
record on appeal, it appears to the Court that:
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
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.
More specifically, Plaintiffs assert two arguments on appeal.
First, they allege that the Superior Court abused its
discretion in declining to preclude the disputed expert
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."
(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.
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
(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
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
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. 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. Dr. West then referred Mr. Phelps to a
cardiac surgeon and discharged him from the
hospital. Following Mr. Phelps' release, Dr.
West was no longer involved in Mr. Phelps' care or
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.
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.
But, on September 19, 2014, before the surgery could be
performed, Mr. Phelps developed an acute myocardial
infarction (MI) and went into cardiac arrest. He died the
following day, September 20, 2014.
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.
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."
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.
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."
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
e. If he left the hospital and suffered a M.I., immediate
treatment options would not be available to
turn, in addition to Dr. West, Defendants identified two
experts in their disclosure documents, Dr. Michael Fifer and
Dr. Peter Smith. 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." 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
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.
his subsequent deposition, Dr. Fifer further testified that
the disclosures accurately reflected his views, but that they
featured only "some" of his opinions. 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
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." He stated that he subscribed to
"the principle of patient autonomy: If there are
options, you give the patient the choice."
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.
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 ...