Peters v. Gelb

• Decision Date: 14 December 1973
• Citation: 314 A.2d 901
• Parties: Charles J. PETERS and Estelle Peters, Plaintiffs Below, Appellants, v. Albert GELB and Harold S. Rafal, Defendants Below, Appellees.
• Court: Supreme Court of Delaware

Page 901

314 A.2d 901

Charles J. PETERS and Estelle Peters, Plaintiffs Below, Appellants, v. Albert GELB and Harold S. Rafal, Defendants Below, Appellees.

Supreme Court of Delaware.

Dec. 14, 1973.

Petition for Reargument Denied Jan. 14, 1974.

C. Waggaman Berl, Jr., of Booker, Green, Shaffer, Berl & Wise, Wilmington, for plaintiffs below, appellants.

Rodney M. Layton and Jane R. Roth, of Richards, Layton & Finger, Wilmington, for defendants below, appellees.

CAREY and DUFFY, JJ., and QUILLEN, Chancellor, sitting.

CAREY, Justice:

Appellants, Charles J. Peters and Estelle Peters, brought an action in Superior Court against Albert Gelb and Harold S. Rafal, appellees, alleging medical malpractice. Appellants claimed that the appellees negligently performed a vasectomy on Mr. Peters. The operation, designed to prevent conception of offspring, was performed on June 12, 1970. Mrs. Peters subsequently discovered that she had become pregnant, and that fact was confirmed on August 31, 1970. Appellants thereafter filed this malpractice suit.

Charles Peters underwent three sperm counts. Appellees testified that the one conducted approximately one month after the operation showed that no sperm were present in the sample. Appellees notified appellants of this fact and advised them that they could resume normal sexual relations without the use of contraceptive devices. A second count was performed on the appellant in November of 1970, and the result showed a low count; about twenty million per cubic centimeter (there was testimony at trial to the effect that the lower limit for fertility is fifty million per cubic centimeter). In April, 1971, another doctor performed a second vasectomy on Mr. Peters. The sperm count performed at that time indicated that there were too few sperm to justify a specific count.

At the trial, the plaintiffs called as their expert witness Dr. Robert S. Shaw. Appellees' counsel objected to his testifying on the basis that Dr. Shaw had no current skill in the area about which he proposed to testify, but the trial Court overruled this objection. The jury returned verdicts for the appellants totaling Five Thousand Dollars.

The appellees filed a timely motion for a judgment notwithstanding the verdict or for a new trial, ¹ stating therein their reasons: '. . . because there was no evidence of negligence on the part of the defendants and because plaintiffs' expert witness lacked the qualifications of an expert to testify on the surgical procedure of vasectomies.'

On March 1, 1973, the lower Court issued its opinion, Del.Super., 303 A.2d 685, denying the motion for judgment n.o.v., but granting a new trial because, said the Court, Dr. Shaw lacked sufficient recent expertise to qualify as an expert witness, and therefore his testimony should not have been admitted. This appeal is from that decision granting a new trial, with the appellants contending: (1) the Court's action in striking Dr. Shaw's testimony and awarding a new trial was an abuse of discretion; and (2) the defendants' motion for a new trial was not properly before the Superior Court because it had not been preceded by a motion for a directed verdict.

I

Dr. Shaw's testimony tended to indicate a belief that, because some sperm had reappeared after the operation, at least one vas deferens had not been ligated during the operation. Rather, he concluded, a piece of thrombosed vein had probably been removed instead of a segment of the vas, ² and this was the cause of Mrs. Peters' pregnancy. He also offered his opinion that the laboratory results, which were favorable to the defendants, were probably inaccurate.

The defendants advanced the argument that Mrs. Peters' pregnancy was probably caused by a phenomenon known as recanalization. The defendants relied in part upon a relatively recent article in the American Medical Association Journal, which verified the fact that in a small percentage of vasectomies the two ends of the vas somehow become rejoined, permitting the sperm to enter the ejaculatory system even though the vasectomy had been performed properly. Dr. Shaw gave his opinion that recanalization probably had not occurred in this case. He testified that he had read the article discussing recanalization on the morning of the trial.

In determining whether the trial Judge erred in striking Dr. Shaw's testimony, we must of course carefully review not only the nature of his testimony, but also his qualifications to testify as an expert.

Dr. Shaw graduated from medical school in 1945. That year, he began a surgical residency at the Massachusetts General Hospital, but was called to military duty as a flight surgeon. After fulfilling his military obligation, he returned in 1948 to Massachusetts General Hospital, where he remained a member of the staff of the Department of Surgery until taking an eighteen-month leave of absence in 1965 and 1966. He was an associate professor of surgery at the Harvard Medical School until 1970, with time off in 1965 and 1966 for post-graduate training in rehabilitation. Following the advice of his physician, Dr. Shaw terminated his active surgical practice in 1960. He left the staff of Massachusetts General Hospital in 1967 to work in a project providing medical services to the underprivileged in Cambridge. That project proved unsuccessful, and he moved to New Hampshire, completing the move in 1970. Although he is still retained on the consulting staff of Cambridge Hospital, Dr. Shaw performed his last major operation in 1967.

We now consider Dr. Shaw's experience with vasectomies. He did perform some vasectomies in his early days with Massachusetts General Hospital, but his testimony discloses that during the past fifteen to twenty years, he has referred such cases to specialists in urology; he last assisted in a vasectomy in 1964.

The Superior Court ruled that Dr. Shaw should not be permitted to apply deductive reasoning as to causation of an injury when he lacked sufficient 'current expertise' upon which to found his conclusion. Here, the doctor had not himself performed the operation in question for some fifteen to twenty years, and the lower Court held that he was not qualified to testify as an expert in this specialized field of medicine which had undergone recent material developments. The lower Court ruled that '(a) professional is entitled to be judged according to the state of the art appropriate to the litigation.' We agree. We are not unaware that plaintiffs in medical malpractice cases experience some difficulty in securing experts to testify in their behalf. However, one who is not possessed of some current expertise in a developing art, either through study of texts or medical journals or through practical experience, cannot be said to be a qualified expert. Lest this holding be read too broadly, we emphasize that each case must be carefully judged by its particular facts and circumstances. Compare ...