McCool v. Gehret
| Decision Date | 21 March 1995 |
| Docket Number | No. 220,1994,220,1994 |
| Citation | 657 A.2d 269 |
| Parties | Tammera L.C. McCOOL and Paul McCool, Plaintiffs Below, Appellants, v. John F. GEHRET, M.D., Defendant Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Upon appeal from the Superior Court. REVERSED and REMANDED.
Bruce L. Hudson, Wilmington, for appellants.
Warren B. Burt (argued), and Michael F. Duggan of Burt & Burt, Wilmington, for appellee.
Before WALSH, HOLLAND, HARTNETT, BERGER, JJ., and DUFFY, J., Retired 1 (constituting the Court en banc).
This is an appeal from the Superior Court. In their original complaint, the plaintiffs-appellants, Paul and Tammera McCool (the "McCools") alleged medical negligence by the defendant-appellee, John Gehret, M.D. ("Dr. Gehret"), and certain other health care providers. The complaint was amended to allege tortious interference by Dr. Gehret with the plaintiffs' medical expert witness, Robert Dein, M.D. ("Dr. Dein"). Over the plaintiffs' objection, the Superior Court granted Dr Gehret's motion to sever the trial of the McCools' claim for medical malpractice from the trial of their claim for tortious interference.
A jury trial was held on the medical malpractice claim only, beginning on January 18, 1994. The jury returned a verdict in favor of Dr. Gehret on January 26, 1994. On February 3, 1994, the plaintiffs filed a motion for a mistrial or, in the alternative, a new trial.
On April 20, 1994, a one-day bench trial was held regarding the tortious interference claim. This bench trial was held before a different Superior Court judge than the one who had presided at the malpractice trial. Nevertheless, the first judge was called to testify on behalf of Dr. Gehret regarding the McCools' tortious interference claim.
On June 3, 1994, the second judge entered judgment in Dr. Gehret's favor on the tortious interference claim. On that same day, the first judge, who had presided at the malpractice trial, denied the McCools' motion for a mistrial or a new trial. The Superior Court entered final judgment in favor of Dr. Gehret in the entire proceeding.
The McCools have appealed the judgments entered in Dr. Gehret's favor on both claims. The McCools raise eight contentions in this appeal. First, the Superior Court improperly granted the defendant's motion in limine to preclude evidence at the malpractice trial regarding Dr. Gehret's alleged use of alcohol. Second, the Superior Court abused its discretion in severing the trial of the medical malpractice claim from the trial of the tortious interference claim. Third, the Superior Court erred in granting the motion in limine to exclude from the malpractice trial evidence that Dr. Gehret attempted to intimidate Dr. Dein. Fourth, the jury's verdict in Dr. Gehret's favor in the medical malpractice claim was contrary to the weight of the evidence. Fifth, the Superior Court erred in failing to adequately investigate an allegation of potential juror misconduct. Sixth, it was error for the judge who presided over the malpractice trial to testify for Dr. Gehret in the tortious interference trial, especially when the motion for a new trial on the medical malpractice claim remained pending. Seventh, the McCools were denied their right to a jury trial regarding their tortious interference claim. Eighth, the Superior Court erred in failing to award the plaintiffs nominal damages plus punitive damages in their tortious interference claim.
This Court has concluded that the Superior Court erred in excluding evidence from the malpractice trial relating to Dr. Gehret's indirect communications with the plaintiffs' expert medical witness, Dr. Dein. It was also reversible error for the judge who presided over the malpractice trial to testify as a witness at the tortious interference trial. Additionally, the record reflects that the McCools were improperly denied their right to a jury trial regarding their tortious interference claim. Accordingly, the judgments of the Superior Court in favor of Dr. Gehret on both the medical malpractice claim and the tortious interference claim must be reversed. 2
On the morning of Sunday, October 22, 1989, at approximately 10:00 a.m., Mrs. Tammera McCool ("Mrs. McCool") telephoned her treating obstetrician, Dr. Gehret. She informed him that she was experiencing the preliminary onset of contractions. Dr. Gehret told her to call back through his answering service when her labor became more serious.
Later in the afternoon, Mrs. McCool again telephoned Dr. Gehret and described her symptoms to him. He advised her to go to the Medical Center of Delaware. Mrs. McCool was admitted as a patient at approximately 5:20 p.m. She was accompanied by her husband, Paul McCool, and her father-in-law.
At 8:00 p.m., Dr. Gehret arrived at the Medical Center and examined Mrs. McCool. After Dr. Gehret's initial examination of Mrs McCool, he continued to monitor her progress every thirty to forty-five minutes until approximately midnight when Mrs. McCool became fully dilated. At 1:30 a.m., after the labor had failed to progress, Dr. Gehret attempted to complete a vaginal delivery by forceps. He determined, however, that a cephalopelvic disproportion would prevent a vaginal delivery.
Dr. Gehret then performed a caesarian section and delivered a healthy baby boy at approximately 2:00 a.m., Monday, October 23. After the delivery, Dr. Gehret noticed bleeding from the right side of the incision as he was suturing Mrs. McCool. The record reflects that the source of the bleeding was likely a tear resulting from the removal of the baby. There was no contention by any witness that the development of such bleeding was medical negligence. Dr. Gehret sutured the bleeding area, determined the bleeding had stopped, and then completed the closure of Mrs. McCool's incision.
Following the delivery, Mrs. McCool was taken to the recovery room. Her vital signs were examined and found to be normal. Her blood pressure was 80/52 and her pulse was 100. Dr. Gehret checked on Mrs. McCool before he left the hospital at 2:40 a.m. to go home.
Shortly after Dr. Gehret's departure, Mrs. McCool's blood pressure declined to 75/40 and her pulse increased to 110. From 3:00 a.m. until 4:30 a.m., doctors on the Medical Center's staff took several steps in an attempt to correct Mrs. McCool's worsening condition. Nevertheless, no improvement occurred. Mrs. McCool's blood pressure dropped to 50/35 and her pulse to 95.
Dr. Gehret was called at home at 4:30 a.m. He was advised of Mrs. McCool's condition by Dr. Cherie Johnson ("Dr. Johnson"), a resident physician on duty in the obstetrical unit. Dr. Gehret requested that certain blood tests be performed. He asked to be informed of the results.
At approximately 6:30 a.m., Dr. Gehret was called at home again. He was advised that Mrs. McCool's blood tests revealed a critically low platelet count. With such a low platelet count, Mrs. McCool's blood lacked the ability to clot. Without a clotting capacity, Mrs. McCool could not have further surgery. At 6:45 a.m., Dr. Gehret authorized infusion of additional platelets to prepare Mrs. McCool to be taken back into surgery.
Dr. Gehret returned to the hospital at 8:00 a.m. At 9:15 a.m., Dr. Gehret noted that Mrs. McCool was obviously having intra-abdominal hemorrhaging following the caesarian section. Mrs. McCool's platelet level eventually became re-established so that further surgery could be performed. At 10:20 a.m., Mrs. McCool was taken to the operating room. By this time, her condition was life threatening.
Dr. Gehret performed an emergency exploratory laparotomy. He discovered that a large volume of blood had accumulated in Mrs. McCool's abdomen. 3 Dr. Gehret was initially assisted by Dr. Charles Whitney ("Dr. Whitney"), an oncological surgeon, and Dr. Johnson. Dr. Whitney testified that he found a "bleeder," sutured it, and left the operating room before surgery was completed.
Dr. Gehret testified that there was bleeding from more than the one source. Dr. Gehret thought one origin of the bleeding was in the area of the right ovary. He removed that ovary but the bleeding persisted. He was concerned that if he did not resolve the bleeding, Mrs. McCool would die, since she could probably not survive a third surgery. 4 Dr. Gehret examined Mrs. McCool's uterus and found it "boggy" with blood. Troubled by the apparent inability of the uterus to contract and concerned that it would cause further complications, Dr. Gehret deemed it necessary to remove the uterus.
Surgery was then completed. Mrs. McCool was discharged from the hospital several days later. She has suffered no further medical complications. The removal of her uterus has, however, rendered her sterile.
After her discharge, Mrs. McCool returned to the care of her former obstetrician/gynecologist, Dr. Dein. Dr. Dein is licensed to practice medicine in Pennsylvania. He is a member of the medical staff of the Bryn Mawr Hospital. During an office visit with Dr. Dein, Mrs. McCool told him about her ordeal during childbirth.
Dr. Dein subsequently reviewed the medical records relating to the delivery of Mrs. McCool's son. Dr. Dein concluded that Mrs. McCool's internal bleeding should not have been allowed to persist for eight hours until she was near death. In addition, Dr. Dein maintained that once Mrs. McCool was re-admitted to surgery, her bleeding could have been controlled without the removal of her right ovary and uterus.
Dr. Dein had never before served as an expert witness in a medical malpractice suit. He agreed, however, to help Mrs. McCool in a law suit she filed against Dr. Gehret. Dr. Dein wrote a report that was sharply critical of Dr. Gehret's medical care and treatment of Mrs. McCool.
On May 23, 1991, Mrs. McCool...
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