Mitchell v. Haldar, 348,2004.

• Decision Date: 22 August 2005
• Docket Number: No. 348,2004.,348,2004.
• Citation: 883 A.2d 32
• Parties: John MITCHELL, Sr., and Donna Mitchell, Plaintiffs Below, Appellants, v. Dr. Joydeep HALDAR, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

883 A.2d 32

John MITCHELL, Sr., and Donna Mitchell, Plaintiffs Below, Appellants, v. Dr. Joydeep HALDAR, Defendant Below, Appellee.

No. 348,2004.

Supreme Court of Delaware.

Submitted: July 20, 2005.

Decided: August 22, 2005.

Kenneth M. Roseman, Ciconte, Roseman & Wasserman Wilmington, DE, for appellants.

Mason E. Turner, Jr., Prickett, Jones & Elliott, P.A., Wilmington, DE, for appellee.

Before STEELE, Chief Justice, HOLLAND, JACOBS, RIDGELY, Justices and LAMB, Vice Chancellor,¹ constituting the Court en Banc. HOLLAND, Justice:

This is an appeal by the plaintiffs-appellants, John Mitchell, Sr. and Donna Mitchell, following a jury trial in the Superior Court in an action for alleged medical malpractice against the defendant-appellee, Dr. Joydeep Haldar. The jury returned a verdict in favor of the plaintiffs in the total amount of $15,000. The plaintiffs filed a motion for a new trial, arguing that the damage award was inadequate, because it was substantially less than the medical expenses of $37,997.27. That motion was denied. The plaintiffs have standing to appeal as aggrieved parties, notwithstanding the judgment in their favor, since the relief they received was less than the amount they sought to recover.²

Two issues are raised in this direct appeal. The appellants' first contention is that the trial judge misapplied the collateral source rule by excluding evidence of the full amount of Mr. Mitchell's medical bills and instead limiting the evidence of medical expenses to the lesser amounts actually paid by Mr. Mitchell's private health insurance carrier. The appellants' second argument is that they are entitled to a new trial, given the nature of Mr. Mitchell's injuries and the fact that the jury verdict was less than his medical expenses.

Facts

Mr. Mitchell underwent abdominal surgery for a ruptured appendix. That procedure was performed by Anis Saliba, M.D., a general surgeon at the Beebe Medical Center on the afternoon of July 19, 2001. This litigation concerns the alleged medical negligence of Dr. Haldar, an emergency physician. Dr. Haldar was involved in Mr. Mitchell's evaluation and care during a presentation to the Beebe Medical Center Emergency Department on July 17, 2001. The appellants contend that Mr. Mitchell had appendicitis at the time of that presentation and that Dr. Haldar negligently failed to diagnose it and to arrange for surgery to be performed that evening.

Mr. Mitchell had been sent to the Beebe Emergency Department on July 17, 2001 from another facility to have an abdominal CT scan performed to evaluate the cause of his complaint of abdominal pain. Dr. Haldar's first involvement with Mr. Mitchell was after the completion of the CT scan, which was reported back by the radiologist as normal. Dr. Haldar testified that he also performed a physical abdominal examination which was normal. Because of Mr. Mitchell's negative CT scan, reduced pain level and normal abdominal examination, Dr. Haldar testified that he felt the probability of appendicitis or another immediate surgical emergency was very low and that Mr. Mitchell could be discharged with appropriate instructions.

The parties agree that if Dr. Haldar felt Mr. Mitchell had appendicitis on July 17, his course of action would have been to consult a general surgeon, who would have been the individual to make the decision whether Mr. Mitchell required admission and surgery. The record reflects that Dr. Haldar did consult with the on-call surgeon, Dr. James Spellman, and reported to him the diagnostic findings and his tentative conclusion that Mr. Mitchell did not have appendicitis or any other condition constituting a "surgical abdomen." Dr. Spellman testified that it was "very reasonable" to send Mr. Mitchell home with instructions and he felt no reason to countermand Dr. Haldar's decision.

The discharge instructions given to Mr. Mitchell by Dr. Haldar on July 17 advised Mr. Mitchell that his condition could be consistent with "a serious problem requiring surgery (such as appendicitis) or something innocent which would resolve on its own." Those discharge instructions also advised Mr. Mitchell of things to watch for including: more severe pain; persistent vomiting; shaking, chills or fever; and failure to improve. Mr. Mitchell was instructed that if any or all of these conditions became manifest within the next 24 hours, he should seek immediate medical attention.

The record reflects that on July 18, the day after he left the Emergency Department, Mr. Mitchell developed persistent vomiting, chills and fever, increased pain and failed to improve. Nevertheless, Mr. Mitchell did not return to the Emergency Department or see a doctor on July 18. When Mr. Mitchell sought medical assistance on July 19, his appendix was found to be ruptured. The record reflects that Mr. Mitchell's appendix was not ruptured on July 17.

The appellants' theory of medical negligence was that since in retrospect it is known that Mr. Mitchell had an early appendicitis at the time of his July 17, 2001 presentation at the Beebe Medical Center Emergency Department and since the symptoms which he had at that time were consistent with "classic" appendicitis, Dr. Haldar was negligent in failing to diagnose appendicitis, in relying upon the negative CT scan and must have either failed to perform the physical abdominal examination to which he testified or did it inadequately.³ At trial, the plaintiffs pointed out that the abdominal CT scan did not "rule out" the presence of appendicitis with absolute certainty and the report of the CT Scan did not even mention the appendix.

Mr. Mitchell testified regarding a variety of physical problems which he contended he did not have prior to July 17, 2001 and that, therefore, must be related to the delay in diagnosis of appendicitis. These problems included ongoing abdominal pain, a pulmonary embolism which developed in September, 2001, which Mr. Mitchell claimed caused ongoing respiratory problems and a hernia which was repaired in February, 2004. Mr. Mitchell also testified he could no longer work because of the multitude of problems which he attributed to the delay in diagnosis caused by Dr. Haldar.

The appellants presented no evidence from any of Mr. Mitchell's treating physicians. Instead, the evidence which the appellants presented to causally connect Mr. Mitchell's complaints to Dr. Haldar's alleged medical negligence was expert testimony by Stephen Rodgers, M.D., a physician lawyer, who conducted a medical examination of Mr. Mitchell in November, 2003 for purposes of this litigation. Dr. Rodgers testified that Mr. Mitchell sustained four distinct injuries due to Dr. Haldar's negligence in failing to diagnose and treat appendicitis before the appendix perforated. Those four injuries were: the development of an infection and the resultant reaction to antibiotics prescribed to treat the infection; the development of a pulmonary embolism and the resultant susceptibility to embolisms in the future; the development of an incisional hernia; and the development of adhesions in the abdominal cavity. Dr. Rodgers also testified that Mr. Mitchell was either hospitalized or treated on four separate occasions to address the four distinct injuries that he opined were caused by the medical negligence of Dr. Haldar.

On cross-examination, Dr. Rodgers acknowledged that Mr. Mitchell would have required an abdominal incision if his appendicitis had been diagnosed by Dr. Haldar on July 17 and that any incision can lead to adhesions. Accordingly, Dr. Rodgers also acknowledged that if the appendectomy had been performed when the appellants claimed it should have been, Mr. Mitchell still could have developed adhesions and the incisional hernia. On cross-examination, Dr. Rodgers also acknowledged that the slightly elevated respiratory rate was consistent with Mr. Mitchell's age and history of smoking for more than thirty years which had led him in July, 2003 to be diagnosed by his pulmonologist with emphysema.

Dr. Rodgers testified that Mr. Mitchell had applied for Social Security disability based on four claimed medical conditions: cardiac problems; low back problems; knee problems; and breathing problems. On cross-examination, Dr. Rodgers acknowledged that the first three medical conditions had no relationship to Mr. Mitchell's appendicitis. With regard to Mr. Mitchell's breathing problems, Dr. Rodgers acknowledged that Mr. Mitchell had underlying pulmonary disease, as diagnosed by his pulmonologist, most probably related to his long history of smoking. Dr. Rodgers did not attempt to quantify any distinction between the breathing problems related to the underlying pulmonary disease and the pulmonary embolism that he attributed to Dr. Haldar's negligence.

The only witness to testify regarding the injuries caused to Mr. Mitchell by Dr. Haldar's alleged medical negligence was the appellants' medical expert, Dr. Stephen Rodgers. Dr. Haldar did not present any expert testimony regarding the issue of causation. Instead, Dr. Haldar relied upon the cross-examination of Dr. Rodgers to undermine the force and effect of Dr. Rodgers' direct testimony. On redirect examination, Dr. Rodgers adhered to his original opinions regarding Dr. Haldar's negligence and its causal connection to Mr. Mitchell's medical problems.

The appellants sought to recover the expenses associated with all of the medical treatment that Mr. Mitchell received from July 17, 2001 to the time of trial. This included visits with his family doctor, treatments with his pulmonologist for emphysema which was diagnosed on July, 2003, cardiology consultations, and the February, 2004 hernia surgery. The appellants proffered copies of medical bills to prove that the total reasonable cost of Mr. Mitchell's necessary medical treatment was $58,997.27. The trial judge, however, ruled that the appellants could recover only those expenses that were actually paid by Mr. Mitchell's...