Cooney-Koss v. Barlow
87 A.3d 1211
| Del. | 2014Background
- April 22, 2010: C-section by Dr. Barlow; May 2, 2010: Laura Cooney-Koss suffers heavy bleeding; D&E and laparotomy performed by Dr. McCracken with ongoing uterine massage and additional meds; hysterectomy performed after conservative measures failed; bleeding stopped post-hysterectomy.
- October 22, 2010: Laura and husband file suit against McCracken and affiliated entities for negligent failure to pursue conservative options before hysterectomy.
- Jury verdict for plaintiffs; Superior Court denied McCracken’s motions for JMOL and for a new trial; appellate issues center on JMOL and evidentiary rulings.
- The court holds that the trial court erred in excluding certain evidence (treating anesthesiologist’s testimony, bleeding-disorder evidence, and medical literature for cross-examination) but that the JMOL denial was correct; the case is reversed for a new trial on the evidentiary issues.
- Christiana Health Services, Inc. was dismissed; cross-appeal on summary judgment for Barlow is addressed; the matter is remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence to deny JMOL on breach of standard of care | Kosses argue Spellacy’s testimony supports a breach by not exhausting conservative options | McCracken argues doctor exhausted options or that decision was appropriate | JMOL denied; material fact issue exists for jury |
| Whether treating anesthesiologist testimony was properly excluded | Lui’s routine practice would show concern and communication to surgeon | Testimony would be speculative due to lack of memory | Abuse of discretion; admission of limited routine-practice testimony permissible |
| Whether evidence of Laura's alleged bleeding disorder was improperly excluded | Bleeding-disorder evidence could show hysterectomy inevitable or affect damages | Evidence irrelevant and untimely | Abuse of discretion; error prejudiced McCracken |
| Whether medical literature could be used to impeach standard-of-care expert | Literature impeachment allowed under stipulation | Pretrial stipulation restricted evidence | Abuse of discretion; error prejudiced McCracken |
| Whether the cross-appeal on summary judgment against Barlow lacks merit | Merit acknowledged; summary judgment affirmed for Barlow; remanded for new trial on evidentiary issues |
Key Cases Cited
- Dawkins v. Siwicki, 22 A.3d 1142 (R.I. 2011) (admissibility of routine practice evidence; similar rationale to Rule 406)
- Jacob v. Kippax, 10 A.3d 1159 (Me. 2011) (treating physician testimony about routine practices allowed where applicable)
- Thomas v. Hardwick, 231 P.3d 1111 (Nev. 2010) (treating physician testimony about routine practice)
- Rivera v. Anilesh, 8 N.Y.3d 627 (N.Y. 2007) (treating physician routine practice testimony)
- Palinkas v. Bennett, 416 Mass. 273 (Mass. 1993) (impeachment through established routine practices)
- Aikman v. Kanda, 975 A.2d 152 (D.C. 2009) (allowing surgeon to testify about routine aspects of surgery)