SUPERIOR COURT
OF THE
STATE OF DELAWARE

ABIGAIL M. LEGROW LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KlNG STREET, SUITE 10400
WlLMINGToN, DELAWARE 19801
TELEPHoNE (302) 255-0669

Submitted: October 4, 2017
Decided: October 17, 2017

Kenneth M. Roseman, Esq. Richard Galperin, Esquire
Kenneth Roseman, P.A. Joshua Meyeroff, Esquire

1300 King Street Morris J ames LLP

Wilmington, DE 19801 500 Delaware Avenue, Suite 1500

Wilmington, DE 19899-2306

RE: Kathleen L. Phelps, et al. v. Dr. Joseph T. West, et al.
C.A. No.: N15C-12-136 AML

Dear Counsel:

This medical negligence suit has mutated into a dispute between the parties
regarding alleged spoliation of evidence. After plaintiffs uncovered What they
believed Was perjury and manipulation of the discovery record, they Were granted
extensive discovery at defendants’ expense and Were permitted to amend their
complaint to add a claim of fraud and misrepresentation The plaintiffs contend an
employee of the defendant hospital created a chart note reflecting discussions With
a patient and, after the patient’s death, destroyed or hid that chart note and created

a neW, sanitized chart note that Was produced in discovery. The chart note, or lack

Phelps v. West
October 17, 2017
Page 2

thereof, forms the basis of the fraud and misrepresentation claim. lt is undisputed
that the employee created a chart note after the patient’s death; the only dispute is
whether an earlier chart note existed.

The plaintiffs also argue they are entitled to an adverse inference instruction
relating to the chart note and two other documents: (1) a portion of a fax sent to the
defendant physician, and (2) a scheduling letter created by staff who scheduled the
patient for surgery. The question now before the Court is whether the defendants
are entitled to summary judgment on the plaintiffs’ fraud and misrepresentation
claim when the record contains no evidence that a chart note was created at the
time the patient interacted with the employee or that the plaintiffs relied on or were
damaged by the later-created chart note. The Court also must decide whether the
plaintiffs are entitled to an adverse inference instruction where there is no evidence
supporting a factual finding that the documents at issue were destroyed
intentionally and in bad faith. I conclude the defendants are entitled to summary
judgment on the fraud and misrepresentation claim, and the plaintiffs are not
entitled to an adverse inference instruction My reasoning follows.

Backgrou nd

The following facts are not disputed or, where disputed, are resolved in

favor of the plaintiffs. On August 15, 2014, Dr. David Grubbs referred his patient,

Anthony Phelps, for a cardiac catheterization based on Grubbs’s diagnosis of

Phelps v. West
October 17, 2017
Page 3

angina. On his billing sheet associated with the appointment, Grubbs indicated a
diagnosis of “angina, unstable.” Dr. Joseph West, a defendant in this action,
performed the catheterization on August 22, 2014. West’s report noted Phelps was
a “67 year old man with [unstable angina] and markedly positive stress test.”l
West discharged Phelps from the hospital that day, but recommended he undergo
bypass surgery. West referred Phelps to Dr. Paul Davis, a cardiac surgeon, to
discuss that surgery. West did not have any involvement with Phelps’ care after
August 22, 2014.

West and Davis are not in practice together, but both are employed by
defendant Christiana Care Health System, Inc. (“CCHS” and collectively with
West, the “Defendants”). Davis met with Phelps on August 29, 2014 and
scheduled him for bypass surgery on September 11, 2014.2 On September 8th,
however, Phelps reported to Davis’s office that he was being treated for bronchitis
by his primary care physician.3 Phelps’s surgery therefore was rescheduled to
September 25, 2014. The surgery later was rescheduled a second time, to October
l, 2014, due to operating room and physician availability and prioritization of

other, seemingly more urgent, surgeries.4

 

1 App’x to Opening Br. in Supp. of Defs.’ Mot. for Summ. J. (hereinafter “A”) 11.
2 A14-15.

3 A15; Brady Tr. at 29-32.

4 A15.

Phelps v. West
October 17, 2017
Page 4

These changes to the schedule, and notes regarding the reasons for the
changes, were reflected in handwritten notes on a form referred to internally in
Davis’s office as a “face sheet.” That face sheet was preserved and produced in
discovery. There is no dispute in this case that the handwriting on the face sheet
belonged to Christine Brady, a member of Davis’s staff, or that the notations were
made contemporaneously with Brady’s conversations with Phelps.

lt was Dr. Davis’s staff’ s practice to issue a scheduling letter to a patient
when surgery was scheduled and to retain a copy of the letter in the patient’s file.
A scheduling letter was issued to Phelps, but when Phelps’s surgery was
rescheduled, Brady removed the initial scheduling letter from Phelps’s file, placed
it in a bin designated for shredding, and placed the new scheduling letter in the
file.5 Brady testified scheduling letters often, but not always, are discarded when a
procedure is rescheduled,6

On September 19, 2014, Phelps developed an acute myocardial infarction
and went into cardiac arrest. Phelps died on September 20, 2014. In May 2015,
Plaintiffs’ counsel requested Phelps’s records from CCHS. In response, Brady
contacted CCHS’s legal risk management department. She also prepared a

document labeled “chart note” that reflected, or purported to reflect, Brady’s

 

5 A61-62 (Brady 6/16/16 Dep. Tr. at 43-46).
6 1a (Brady 6/16/16 Dep. Tr. ar 43-47).

Phelps v. West
October 17, 2017
Page 5

interactions with Phelps (the “2015 Chart Note”).7 The substance of the events on
the 2015 Chart Note is identical to the events Brady noted on the face sheet.8
Brady, however, mistakenly wrote the year 2015, rather than 2014, for each of the
events.9

The plaintiffs, who are Phelps’s estate and his spouse and children
(collectively, the “Plaintiffs”), filed this negligence action against West and CCHS
on December 15, 2015. Plaintiffs’ theory, fairly summarized, is that West
negligently discharged Phelps from the hospital on August 22, 2014, without
adequately informing him of the risks or recommending necessary follow-up care
and restrictions Plaintiffs believe West should have recommended immediate
bypass surgery and should not have discharged Phelps, given Grubbs’s unstable
angina diagnosis and the symptoms, including chest pains, that Plaintiffs contend
Phelps was experiencing at the time West evaluated him.

Plaintiffs deposed Brady regarding, among other things, the 2015 Chart
Note. During her first deposition, Plaintiffs’ counsel showed Brady the 2015 Chart
Note and asked her, several times, in what year she wrote the entries on that

document. Brady repeatedly testified that she wrote the 2015 Chart Note in

 

7 A49.

8 Compare A15 with A49.

9 A49. The 2015 Chart Note was produced to Plaintiffs’ attorney in response to the records
request. After litigation was filed, Brady noticed that the wrong year was written on the Chart
Note and she therefore wrote the year 2014 over each of the dates on the note. See A215-17.

Phelps v. West
October 17, 2017
Page 6

2014.10 After the deposition, however, Brady changed her testimony and for the
first time acknowledged that she created the 2015 Chart Note in 2015, well after
Phelps’s death,ll In the wake of Brady’s deposition and her acknowledgment that
she manipulated the record, the Court permitted Plaintiffs to engage in wide-
ranging discovery, at Defendants’ expense, including (1) depositions of Brady,
West, Davis, and CCHS’s risk manager, Carol Sirkowski, (2) access to
Defendants’ counsel’s files and CCHS’s risk management files,12 and (3) access to
other patients’ files to evaluate Brady’s practice of creating chart notes.13 Plaintiffs
also were permitted to amend their complaint to add a claim for fraud and
misrepresentation and were awarded attorneys’ fees for the motion to compel, the
motion for sanctions, and Plaintiffs’ counsel’s time relating to the additional
discovery.

In addition to their fraud claims regarding the 2015 Chart Note, Plaintiffs
also seek an adverse inference jury instruction relating to the chart note, scheduling
letter, and two pages purportedly missing from West’s document production. In
support of their argument that West was aware, or should have been aware, of

Phelps’s symptoms and the need for immediate bypass surgery, Plaintiffs point to

 

10 A59-60, A62.

11 A215-17.

12 Defendants offered this access in response to Plaintiffs’ motions and were permitted to remove
evaluative language regarding the case.

13 Transcript (D.I. 71) at 46; D.l. 49.

Phelps v. West
October 17, 2017
Page 7

Grubbs’s records and his diagnosis of unstable angina. Although the facts are
disputed, for purposes of this motion it is assumed that Grubbs’S office faxed West
all Grubbs’s records for Phelps, consisting of 10 pages and a fax cover sheet
indicating the number of pages transmitted In discovery in this case, however,
West’s office only produced nine pages of documents that West received from
Grubbs’ office; missing were the fax cover sheet and the billing sheet indicating
“Angina, Unstable.”
Analysis

A motion for summary judgment will be granted if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.14
When considering a motion for summary judgment, the evidence and the
inferences drawn from the evidence are to be viewed in the light most favorable to
the non-moving party.15 The Court will accept “as established all undisputed
factual assertions . . . and accept the non-movant’s version of any disputed facts.
From those accepted facts[,] the [C]ourt will draw all rational inferences which
favor the non-moving party.”16 The non-moving party, however, must do more

than suggest some “metaphysical doubt as to material facts.” Brzoska v. Olson, 668

 

14 super Ct. C.iv. R. 56(¢).

15 Brzr).\'ka v. ()fmn, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Dei. 1977).

16 Marro v. Gopez, 1994 WL 45338, ar *1 (Del. super. Jan 18, 1994) (citing Merrill v. szhall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).

Phelps v. West
October 17, 2017
Page 8

A.2d 1355, 1364 (Del. 1995). Summary judgment should be granted if the trier of
fact only may draw one reasonable inference from the f`acts.17

A. The plaintiffs have not pointed to any evidence that a chart note was
created in 2014, that they justifiably relied on the 2015 Chart Note, or
that they suffered any damages as a result of the 2015 Chart Note.

ln order to establish a claim of fraud, Plaintiffs must prove:
1) a false representation, usually one of f`act, made by the
defendant, 2) the defendant's knowledge or belief that the
representation was false, or was made with reckless
indifference to the truth, 3) an intent to induce the
plaintiff to act or to refrain from acting, 4) the plaintiffs
action or inaction taken in justifiable reliance upon the
representation, and 5) damage to the plaintiff as a result
o|`Such reliance.18
Here, Plaintiffs’ claim fails because the record does not support the elements of
misrepresentation, reliance, or damages
As to the existence of a misrepresentation, Plaintiffs’ amended complaint
alleges Brady created a false medical record to mislead Plaintiffs as they evaluated

or pursued their negligence claim.19 Plaintiffs’ theory suggests that because 2015

Chart Note was created after Phelps’ death, it must be the counterfeit of the one

 

17 Woo¢¢en v. Kiger, 226 A.2d 238, 239 (Del. 1967).
18 S¢ephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983).
19 Am. Compi. 11 15-18.

Phelps v. West
October 17, 2017
Page 9

Brady destroyed. Plaintiffs believe the destroyed chart note likely contained
evidence that Phelps complained to Brady of chest pain.20

The record does not support a reasonable inference consistent with
Plaintiffs’ theory. In fact, for at least three reasons, the record supports only an
inference that the 2015 Chart Note was the only chart note created. First, although
Brady initially testified she created the 2015 Chart Note in 2014, neither Brady nor
any other person testified that she created two chart notes. Second, the documents
in the record show the 2015 Chart Note was a transcription of the hand-written
face sheet that Brady previously prepared.21 That is, the face sheet, which was
produced before and during the litigation, contains the same information as the
2015 Chart Note. Therefore, to accept Plaintiffs’ theory, the Court would have to
infer Brady created both a face sheet and a chart note during her discussions with
Phelps, but only recorded certain information on the chart note, which she later
destroyed. That inference, however, is not supported by the record, which is the
third reason Plaintiffs’ theory lacks support. Plaintiffs have uncovered no evidence,
direct or circumstantial, that support the counterfeit theory despite additional

discovery at Defendants’ expense. Although Plaintiffs examined dozens of patient

 

20 Plaintiffs have not sued Davis, Brady’s employer, alleging Davis was negligent in postponing
Phelps’ surgery, Rather, Plaintiffs theorize that if Phelps complained of these symptoms to
Brady, he likely also mentioned them to West on August 22nd.

21 The information on the face sheet, although dated, was haphazardly jotted on different portions
of the document.

Phelps v. West
October 17, 2017
Page 10

files on which Brady worked during the same time period, Plaintiffs did not
identify a single time Brady created both a face sheet and a chart note for the same
patient interaction Moreoever, none of Phelps’s family members testified that he
complained of chest pain at any time he was under Davis’s care. In other words,
apart from their bare theory of two chart notes, there is no evidence of a
misrepresentation

Even as to the 2015 Chart Note, which CCHS did represent, for a time, as a
contemporaneously-created document, Plaintiffs have not established justifiable
reliance. Plaintiffs argue their counsel relied on the 2015 Chart Note when
forming their litigation strategy and their expert relied on the chart note when
evaluating the merits of the action In order to maintain a fraud action, a plaintiff
must show that “the plaintist action or inaction [was] taken in justifiable reliance

.”22 Here, Plaintiffs cited no case in which a court

upon the representation . .
concluded an expert’s or advisor’s reliance satisfies the reliance element of a fraud
claim.

Assuming for argument’s sake that justifiable reliance could extend to

counsel and experts, Plaintiffs, in order to prove reliance and damages, would need

to offer more than speculation as to what counsel or the expert would have done

 

22 Johnson v. Preferred Professional Insurance Company, 91 A.3d 994, 1017 (Del. Super. 2014)
(emphasis added).

Phelps v. West
October 17, 2017
Page 11

differently. Here, Plaintiffs’ speculation of what could have been different
depends on their unsupported theory about a second chart note, not on the
existence or contents of the 2015 Chart Note. Put differently, Plaintiffs cannot
show how their counsel or expert relied to their detriment on the 2015 Chart Note;
their reliance and damages arguments depend on the purportedly destroyed,
“original” note, of which there is no evidence. Moreover, after learning the
circumstances surrounding the 2015 Chart Note’s creation, the Court allowed
Plaintiffs to amend their complaint and take additional discovery. Plaintiffs did not
add any negligence claims or seek to supplement their expert disclosures, further
weakening any contention that their claims or theories relied on the 2015 Chart
Note.

B. There is no evidence that any missing records Were destroyed or
withheld intentionally or in bad faith.

Plaintiffs also seek an adverse inference jury instruction regarding the 2015
Chart Note, the scheduling notice, and the medical records from Grubbs that were
missing from West’s records. An adverse inference instruction requires factual
allegations that a defendant’s intentional spoliation inhibited a plaintiff’s ability to

3

prove a claim. Before issuing an negative inference instruction “a trial court

must first determine that a party acted willfully or recklessly in failing to preserve

 

23 Pikey v. Bryam, 203 s.W.3d 817, 825 (Mo. Ct. App. 2006).

Phelps v. West
October 17, 2017
Page 12

evidence.”24 When a party willfully destroys evidence, it is the duty of the trial
court to “adopt a view of the facts as unfavorable to the wrongdoer as the known
circumstances will reasonably admit.”25 Such a view of the facts, however, does
not apply “where the evidence is destroyed accidentally or where records are
purged under a routine document destruction policy.”26

The party seeking an adverse inference instruction bears the burden of
providing a factual basis for the instruction27 Here, as previously discussed, there
is no factual basis, or reasonable inference, from which the Court may conclude
that another chart note ever existed. There also is no evidence the alleged
document was destroyed, intentionally or otherwise, and thus no basis for an
adverse inference instruction

The Court also cannot infer that the scheduling notice was destroyed in bad
faith. The Supreme Court has held a trial court may not draw an adverse inference
when destruction of documents occurred in the ordinary course of business.28
Brady testified it was her practice to shred obsolete scheduling letters that did not

have notes on them.29 Plaintiffs have offered no evidence of willful or reckless

destruction or any record supporting an inference that Defendants were motivated

 

:: Sears, Roebuck & C0. v. Mz'dcap, 893 A.2d 542, 548 (Del. 2006).
Id.

261d-

21 Id. ar 549.

28 1a at 548.

29 Tr. at 43-47.

Phelps v. West
October 17, 2017
Page 13

to destroy an adverse document, such as evidence that Phelps was experiencing
symptoms he might have reported to Davis’s staff that would bolster `Plaintiffs’
negligence claim.

Lastly, Plaintiffs failed to show bad faith conduct by West (or CCHS)
regarding the records faxed by Dr. Grubbs. Although the record supports an
inference that the “missing” pages were faxed to Phelps, Plaintiffs offered no
evidence of bad faith, willful or reckless destruction or intentionally withholding
evidence. Of the eleven pages in Grubbs’s report, notes regarding Phelps’s angina
were contained in the nine pages sent to West’s office. West himself had notes
regarding Phelps’s unstable angina, so destruction or omission of the other two
pages would do nothing to ameliorate Defendants’ position if spoliation was their
intent. In suin Plaintiffs have fallen well short of establishing the factual basis

necessary for the adverse inference they seek.

Phelps v. West
October 17, 2017
Page 14

Conclusion
For the foregoing reasons, Defendants’ Motion for Partial Summary
Judgment is GRANTED and Plaintiffs’ request for an adverse inference

instruction is DENIED. IT IS SO ORDERED.

Very truly yours,

nn ,

Abigail M. LeGrow, udge

Original to Prothonotary

