Failure to Disclose Defendant Doctor’s Expert Opinions and Facts on Which They Were Based Reversible Error in Delaware Bowel Resection Case

A woman underwent an appendectomy. About a week later, she was readmitted to the hospital complaining of abdominal pain. She was diagnosed with a partial small bowel obstruction. The following day, a surgeon removed a section of the woman's small bowel. About five months later, the woman was admitted to the hospital again and diagnosed with a small bowel obstruction. Two days later, another surgeon from the same surgical practice removed another section of the woman’s small bowel. On the same day as this surgery, the second surgeon made a handwritten operative note. Fifty-two days later, the second surgeon completed the operative report.


Subsequently, the woman again experienced abdominal pain. A mass was discovered on the woman’s liver. The surgeon who removed the mass wrote a letter to the woman's gastroenterologist that said that the mass raised the concern about something that had spilled out from prior surgeries. The woman underwent a final surgery to repair a large ventral incisional hernia allegedly caused by the prior two small bowel resection surgeries.


The woman sued the first two surgeons and their practice for medical malpractice. She alleged that the decisions to perform two separate surgeries for bowel obstructions and the manner the procedures were performed fell below the applicable standard of medical care


The defendants filed a motion in limine to “Preclude Plaintiff from Asserting Negligence at Trial Based Upon Time in Which Operative Reports Were Dictated.” The woman argued that the second surgeon's undisputed violation of the hospital’s rule requiring doctors to dictate operative report within 24 hours of surgery, coupled with the undisputed fact that he performed at least 27 surgeries in the ensuing 52 days, support an argument that he was busy and hurried through the woman's surgery, leading to the spillage of abdominal contents which, in turn, necessitated surgery to remove the contaminated mass on her liver. The trial judge did allow the woman to establish that the second surgeon's operative report was not dictated until fifty-two days after the surgery. However, the trial judge precluded the woman from asking any witness about how this might affect the defendants' negligence.


At trial the Superior Court of the State of Delaware allowed the first surgeon to testify as an expert on critical matters related to his own liability. The woman objected because the pretrial expert disclosure did not properly identify any opinions that he was expected to give at trial. During his testimony, the first surgeon opined that the post-surgery pathology report proved that he was not negligent. Specifically, the woman objected that the surgeon’s testimony regarding the pathology report had not been previously disclosed in his deposition or in the medical records.


Following a trial, the jury returned a verdict in favor of the defendants. The woman appealed arguing, first, that the trial court erred in permitting the first surgeon to testify as an expert on critical matters related to his own liability because, although the first surgeon had been identified as a possible expert witness, the expert disclosure did not properly identify any opinions that he was expected to give at trial. Second, the woman argued that she was denied a fair trial when the trial court prohibited her from cross-examining the second surgeon or examining any other witnesses about the timeliness and completeness of the second surgeon's operative report for her second bowel surgery, which he dictated 52 days after the surgery. The woman argued that the 52-day delay violated a hospital rule requiring surgeons to dictate their reports before there is a change in the patient's level of care and preferably within 24 hours. The woman argued that even if the trial court did not abuse its discretion in excluding evidence of the 24–hour rule to prove the defendants' negligence, the trial court should have admitted the evidence for the limited purpose of impeaching the second surgeon's testimony, who denied knowledge of the rule at his deposition.


The Supreme Court of Delaware reversed and remanded. The court held that, in the absence of proper disclosure, the admission into evidence of the first surgeon's expert opinions constituted reversible error. First, the disclosure of the first surgeon as an expert, along with his accompanying expert opinion, must comply with the Superior Court Civil Rule (“Rule”) 16(e) trial scheduling order. Second, those same disclosures must comply with Rule 26(e)(1), which requires, in relevant part, that “[a] party is under a duty seasonably to supplement the response with respect to any question directly addressed to ... 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.” Delaware law requires parties to disclose, before trial: (1) any experts and (2) their opinions and the facts upon which those opinions are based.


The trial judge's ruling, which did not acknowledge the prior non-disclosure of the first surgeon's opinions and factual bases for those opinions, was contrary to settled precepts. The court concluded that the trial judge abused his discretion in overruling the woman's objection by permitting the first surgeon to render an expert opinion on the significance of the pathology report, because he never provided an expert report or otherwise (at his deposition) disclosed his expert opinions prior to trial. This significantly prejudiced the woman, requiring reversal.


The court also addressed the woman's 24–hour rule arguments so that they could be dealt with on remand. The court held that the trial court did not abuse its discretion in ruling that the evidence of the 24–hour rule was inadmissible as affirmative evidence of the defendants' negligence. However, the court also concluded that the trial court did not apply the proper analysis before excluding evidence of the 24–hour rule for purposes of impeachment.


The court held that although the decision to permit or deny specific evidence that is to be used for cross-examination is committed to the trial judge's discretion, a trial judge may not exercise this discretion so as to defeat a party's right to effective cross-examination. Delaware Rule of Evidence (“DRE”) 607 states that “[t]he credibility of a witness may be attacked by any party.” DRE 616 further explains that “[f]or the purpose of attacking the credibility of a witness, evidence of bias, prejudice or interest of the witness for or against any party to the case is admissible.” Here, the woman sought to impeach the second surgeon's credibility through cross-examination by introducing his deposition testimony.


The court found the trial court’s ruling questionable for three reasons. First, the impeachment issue was presented prior to trial in response to the ruling on the motion in limine. It was a timely, proper matter for pretrial consideration.


Second, the ruling suggested that the woman was attacking only the veracity of the operative report. It appears, however, that the woman was arguing that the second surgeon was not credible as a witness generally and specifically in preparing the report accurately, because he refused to acknowledge at his deposition that he was aware of a hospital written rule that required him to prepare an operative report within 24 hours of surgery. The record reflected that the woman was going to present a witness to prove that the 24–hour rule was well-established at the hospital, which would have undermined the second surgeon's deposition testimony and trial credibility.


Third, the ruling did not reflect that the trial judge considered the factors trial courts must consider when limiting cross-examination evidence. Specifically, the trial judge trial judge should consider (1) whether the testimony of the witness being impeached is crucial; (2) the logical relevance of the specific impeachment evidence to the question of bias; (3) the danger of unfair prejudice, confusion of issues, and undue delay; and (4) whether the evidence of bias is cumulative. In the absence of a ruling that effectively balances those competing factors, the supreme court could not determine whether the trial judge properly exercised his discretion in excluding the evidence of the 24–hour rule for the limited, but important purpose of impeaching the second surgeon's credibility.


See: Turner v. Delaware Surgical Group, P.A., 2013 WL 2480247 (Del.Supr., June 11, 2013)(not designated for publication).